tag:theconversation.com,2011:/us/topics/gov-andrew-cuomo-86270/articlesGov. Andrew Cuomo – The Conversation2021-08-13T11:35:07Ztag:theconversation.com,2011:article/1660782021-08-13T11:35:07Z2021-08-13T11:35:07Z5 #MeToo takeaways from Andrew Cuomo and Activision Blizzard sex harassment scandals<figure><img src="https://images.theconversation.com/files/415971/original/file-20210813-21-esrltb.jpg?ixlib=rb-1.1.0&rect=152%2C77%2C1844%2C1200&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York Attorney General Letitia James’ investigation into Cuomo sealed his fate.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CuomoSexualHarassment/1101f0d898a94160800cebfaadc2c482/photo?Query=Letitia%20AND%20James&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=360&currentItemNo=3">AP Photo/Ted Shaffrey</a></span></figcaption></figure><p><a href="https://metoomvmt.org/get-to-know-us/tarana-burke-founder/">Tarana Burke’s #MeToo movement</a> has evolved in the four years since it exploded on the <a href="https://www.refinery29.com/en-us/2018/10/212801/me-too-movement-history-timeline-year-weinstein">national scene</a> with the <a href="https://www.bbc.com/news/entertainment-arts-41594672">Weinstein scandal</a>. </p>
<p>From a flurry of #MeToo-related headlines in 2017, the movement has now produced a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3520217">broad array</a> of legal reforms and changes to the way <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3170764">organizations respond</a> to harassment allegations. Two recent high-profile examples – involving <a href="https://www.nbcnews.com/politics/politics-news/new-york-gov-andrew-cuomo-resigns-n1260310">New York Gov. Andrew Cuomo</a> and video game maker <a href="https://finance.yahoo.com/quote/ATVI">Activision Blizzard</a> – illustrate the power of these reforms. They also show how much employee culture has changed in the intervening years.</p>
<p>As a <a href="https://law.uoregon.edu/profile/tippett">workplace law scholar</a>, I’ve been writing about the #MeToo movement for some time. Here are five takeaways I noticed from both the Cuomo investigation and the Activision Blizzard lawsuit.</p>
<h2>1. Due process can serve interests of victims too</h2>
<p>The #MeToo movement – or at least, the public version splashed across the headlines – was noteworthy for the swiftness with which <a href="https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html">public figures</a> resigned following public allegations of misconduct, or were fired following an investigation. Critics claimed that all-too-public firings offered insufficient “<a href="https://www.theatlantic.com/politics/archive/2018/02/due-process-metoo/553427/">due process</a>” to the accused, who might otherwise have been exonerated.</p>
<p>However, the cases of both Cuomo and Activision Blizzard reveal how lengthy investigations can also serve the interests of harassment victims. In Cuomo’s case, New York Attorney General Letitia James conducted an <a href="https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf">extensive harassment investigation</a>. Her team reviewed documentary evidence, corroborated victims’ stories and identified additional victims. One week after her report was made public, Cuomo resigned.</p>
<p>In the case of Activision Blizzard, a two-year investigation by California’s Department of Fair Employment and Housing against the company <a href="https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2021/07/BlizzardPR.7.21.21.pdf">uncovered systemic problems with pay and promotions</a>. The investigation, detailed in a <a href="https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2021/07/BlizzardPR.7.21.21.pdf">lawsuit</a> filed by the state, describes an alleged “frat boy” culture that serves as “breeding ground for harassment and discrimination” where men “proudly come into work hungover,” make “unwanted sexual comments” and “play videogames … while delegating their responsibilities to female employees.” Underneath that culture, the state of California claims that women were offered lower starting pay, fewer stock options, “steered into lower level” jobs and passed over for promotion.</p>
<p>Such lengthy investigations are not without their drawbacks. They often freeze the status quo in place while the investigation proceeds. The New York attorney general’s harassment investigation also cost taxpayers an <a href="https://www.msn.com/en-us/news/politics/costs-for-cuomos-scandals-legal-costs-likely-wont-end-with-his-resignation/ar-AANc95Z">estimated US$3.5 million</a> – a cost that could have been avoided if Cuomo had resigned in December 2020, when harassment allegations first <a href="https://abcnews.go.com/US/timeline-accusations-york-gov-andrew-cuomo-calls-resignation/story?id=76207242">came to light</a>.</p>
<p>On the other hand, formal investigations and legal processes can sometimes be the best and only option when it comes to holding powerful people and companies accountable.</p>
<figure class="align-center ">
<img alt="New York Gov. Andrew Cuomo grimaces as he prepares to board a helicopter" src="https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415963/original/file-20210813-24625-tizl08.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New York Gov. Andrew Cuomo resigned after an extensive investigation found he sexually harassed several women.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CuomoNursingHomes/84542feaa4c7471593ee7a41ad1ca8dd/photo?Query=Cuomo&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=9571&currentItemNo=5">AP Photo/Seth Wenig</a></span>
</figcaption>
</figure>
<h2>2. State #MeToo laws are making a difference</h2>
<p>One of the many ironies of the Cuomo report was the ways in which Cuomo became ensnared by the very #MeToo legislation that he signed into law. These included a <a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">harassment training requirement</a>, which he <a href="https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf">pawned off on an aide</a> rather than taking it himself. </p>
<p>The investigation also cited a 2019 amendment to New York laws removing a longstanding requirement that harassment be “<a href="https://dhr.ny.gov/workplaceharassment">severe or pervasive</a>” to be legally actionable. Cuomo himself signed the law, describing the old “severe or pervasive” standard as “<a href="https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-enacting-sweeping-new-workplace-harassment-protections">absurd</a>.” He wasn’t wrong – legal scholars <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/mllr62&div=10&id=&page=">have long criticized</a> the old rule for placing harassment victims at a disadvantage.</p>
<p>Ultimately, the legal changes did not seal Cuomo’s fate. The harassment training gaffe was more embarrassing than legally significant. And Cuomo’s misconduct was sufficiently serious that it would have met the older, more stringent standard. Still, it shows that the #MeToo reforms were getting at the right problem and could have protected workers in less egregious circumstances.</p>
<h2>3. Coveted jobs can put employees at risk</h2>
<p>A common theme both in the Cuomo report and the Activision complaint were the ways in which prestige can work against employees. An executive assistant who reported being groped by Cuomo had aspired to work at the state Capitol since she was a child. She was so attached to the job that she <a href="https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf">initially resolved</a> not to tell anyone about Cuomo’s misconduct. </p>
<p>Likewise, the state complaint against Activision – one of the <a href="https://finance.yahoo.com/u/yahoo-finance/watchlists/video-game-stocks">largest</a> and most prestigious video game companies – describes how women took a pay cut to work there and tolerated abusive behavior because they hoped to eventually succeed at the company. </p>
<p>This theme was also present in other high-profile harassment scandals of the #MeToo era, like the <a href="https://www.nytimes.com/2018/04/28/business/nike-women.html">scandal at Nike</a> – where women <a href="https://www.nytimes.com/2018/04/28/business/nike-women.html">described a “toxic” environment</a> and limited career paths – and in prestigious <a href="https://www.npr.org/2017/11/05/562188679/nprs-sexual-harassment-scandal">newsrooms</a> and <a href="https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-men-facing-sexual-harassment-allegations">media</a> jobs. </p>
<p>Although not all such workplaces are riven with misconduct, the pattern suggests to me that intense competition for coveted jobs can both discourage complaints and disincentivize managers from acting on complaints – or even taking them seriously. </p>
<h2>4. ‘He said she said’ is no longer the end</h2>
<p>Prior to the #MeToo movement, it was not uncommon for companies to <a href="https://theconversation.com/ubers-dismissive-treatment-of-employees-sexism-claims-is-all-too-typical-73418">justify their inaction</a> following a harassment investigation on the basis of <a href="https://www.ctpost.com/local/article/For-West-Hartford-woman-employer-s-inaction-14557427.php">conflicting testimony</a> from the victim and the accused. Both the Cuomo report and the Activision Blizzard complaint exemplify a more rigorous approach. </p>
<p>The Cuomo report in particular was meticulous about collecting text messages and other documentary evidence, interviewing witnesses and looking into contemporaneous reports by the victims to third parties. Rather than just giving up when Cuomo offered a blanket denial, the investigators <a href="https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf">carefully assessed</a> the credibility of the governor’s denials against the specific and detailed nature of the accusations and corroborating evidence.</p>
<p>The Activision Blizzard complaint illustrates a different kind of rigor. Although it does not include its actual statistical calculations, the state’s complaint suggests it collected substantial documentation regarding pay and promotion statistics, connecting the dots between the experiences of individual workers and how women were treated more broadly at the company.</p>
<figure class="align-center ">
<img alt="Tarana Burke stands near a window with her hands resting on her hips." src="https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415965/original/file-20210813-25-1gfl66x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tarana Burke’s #MeToo movement took off in 2017 during the Weinstein sexual abuse scandal.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CuomoSexualHarassmentMeToo/3e070507444f470a894901fc7a09dc42/photo?Query=Cuomo&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=9571&currentItemNo=14">AP Photo/Steve Ruark</a></span>
</figcaption>
</figure>
<h2>5. Solidarity matters</h2>
<p>Although much of the Cuomo report details retaliation by Cuomo’s staff against one of his accusers, it also suggests that many other workers supported and helped those who complained. </p>
<p>If anything, the attorney general’s report is built upon the testimony of many workers who corroborated accusers’ accounts. It also described supportive behavior by other employees, who noticed their distressed colleagues and offered to help. </p>
<p>Likewise, at Activision Blizzard, <a href="https://www.nbcnews.com/tech/tech-news/activision-blizzard-workers-walk-sexual-harassment-lawsuit-rcna1525">thousands of employees</a> signed a letter expressing solidarity with women affected by the company’s practices. And on July 28, 2021, employees <a href="https://www.latimes.com/business/story/2021-07-28/activision-blizzard-employees-walk-out-sexist-workplace-and-hiring-practices">staged a walkout</a> to further demonstrate their support and demand change. </p>
<p>This too reflects a lasting legacy of the #MeToo movement. In the words of Tarana Burke, it is about telling survivors “<a href="https://metoomvmt.org/">you are not alone</a>.”</p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/166078/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The scandals show just how much has changed since the movement burst onto the national scene four years ago.Elizabeth C. Tippett, Associate Professor of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1584012021-04-07T18:41:18Z2021-04-07T18:41:18ZPower imbalances are at the root of sexual harassment – but statements like Andrew Cuomo’s don’t acknowledge that inconvenient fact<figure><img src="https://images.theconversation.com/files/393423/original/file-20210405-15-datdef.jpeg?ixlib=rb-1.1.0&rect=41%2C17%2C3848%2C2589&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York Gov. Andrew Cuomo faces an investigation over an alleged pattern of sexually harassing and intimidating women employees.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/new-york-governor-andrew-cuomo-speaks-at-rochdale-village-news-photo/1232129893?adppopup=true">Brendan McDermid/Pool/AFP/via Getty Images</a></span></figcaption></figure><p>In recent weeks, multiple women have reported <a href="https://www.nytimes.com/article/cuomo-sexual-harassment-nursing-homes-covid-19.html">demeaning and sexualized workplace behavior by New York Gov. Andrew Cuomo</a>. In response, Cuomo has issued <a href="https://www.governor.ny.gov/news/statement-governor-andrew-m-cuomo-209">a combination of denials</a>, <a href="https://www.c-span.org/video/?509520-1/york-governor-cuomo-apologizes-actions-resign">defenses</a> and <a href="https://www.c-span.org/video/?509520-1/york-governor-cuomo-apologizes-actions-resign">apologies</a>.</p>
<p>Much of the public analysis of his statements has focused on the adequacy of these apologies – <a href="https://theconversation.com/new-york-gov-cuomo-is-the-textbook-example-of-how-not-to-apologize-156474">whether he took sufficient responsibility or expressed sufficient remorse</a>.</p>
<p>Apologies deserve attention. They can help right wrongs and heal relationships. </p>
<p>Yet in the focus on apologies, an opportunity is missed to learn something about power. Power, after all, is at the heart of sexual harassment.</p>
<h2>‘Unwanted imposition’</h2>
<p>As Catharine MacKinnon, the architect of modern sexual harassment law, has argued, sexual misconduct at work can be defined as “<a href="https://yalebooks.yale.edu/book/9780300022995/sexual-harassment-working-women">the unwanted imposition of sexual requirements in the context of a relationship of unequal power</a>.” </p>
<p>If responses like Cuomo’s are viewed through a power-informed lens, different patterns emerge. In my own study of over 200 such statements, I found many references to the accused’s own <a href="https://texaslawreview.org/sorry-not-sorry-decoding-metoo-defenses/">long careers, to their many professional accomplishments, and to their excellent reputations</a>. In short, when challenged, the men in my study (and all but three were men) did what came naturally: They reached for their power.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman who has accused Cuomo of sexual harassment speaks at a public gathering in New York City." src="https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/393425/original/file-20210405-23-rmj75.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lindsey Boylan, a former state economic development adviser for Gov. Andrew Cuomo, accused Cuomo of sexual harassment that she said took place in 2018.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CuomoSexualHarassmentAllegations/25648a47af4c4df3bbacd93991e887d5/photo?Query=Andrew%20AND%20Cuomo&mediaType=photo,graphic&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=7441&currentItemNo=48">Eduardo Munoz Alvarez/AP Photos</a></span>
</figcaption>
</figure>
<p>This pattern is connected to another theme that I discovered in the statements I studied: repetition of explanations and defenses centered on the accused person’s own subjective intent and perceptions.</p>
<p>“<a href="https://www.usatoday.com/story/life/2018/07/02/andy-dick-charged-groping-woman-los-angeles-street/753104002/">It’s me being funny. I’m not trying to sexually harass people</a>,” for example, or “<a href="https://www.washingtonpost.com/entertainment/music/in-wake-of-post-allegations-a-music-director-leaves-the-field/2018/08/01/1fa4477a-95b9-11e8-80e1-00e80e1fdf43_story.html">I come from a very different culture</a>,” or “<a href="https://abcnews.go.com/Entertainment/richard-dreyfuss-behaved-inappropriately-woman-80s/story?id=51073059">I remember trying to kiss [her] as part of what I thought was a consensual seduction ritual</a>.” </p>
<p>However, the accused’s intentions, thoughts or beliefs – so central in the statements I studied – are only peripheral under sexual harassment law.</p>
<h2>Not a joke</h2>
<p>Under <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act of 1964</a>, the main federal law that covers workplace discrimination and harassment, an employee may sue her employer when she has experienced <a href="https://www.law.cornell.edu/supremecourt/text/477/57">severe or pervasive</a> workplace harassment. </p>
<p>Severity and pervasiveness are judged subjectively, from the harassed person’s point of view, and objectively, <a href="https://www.law.cornell.edu/supct/html/92-1168.ZO.html">in the view of a theoretical “reasonable person</a>.” The law also requires that the conduct be <a href="https://www.law.cornell.edu/supremecourt/text/477/57">unwelcomed</a> by the harassed person. </p>
<p>Though different courts have interpreted these requirements differently around the edges, sexual harassment cases do not turn on whether the harasser thought his conduct was a joke, or culturally acceptable, or ritualized seduction.</p>
<p>Instead, the law’s subjectivity and “welcomeness” requirements ask a superior – like Cuomo – to evaluate his own conduct from his subordinate’s point of view. Superiors who want to avoid committing harassment to begin with (before anything gets to a judge, jury, or media story) need to step outside their own perspective. </p>
<p>This requires empathy. And the more power that a person wields in the workplace, the more difficult it may be to step outside one’s own position and consider the circumstances from another person’s perspective.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/bW3iJt9WR6c?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Cuomo responds to the accusations against him.</span></figcaption>
</figure>
<h2>‘I never intended’</h2>
<p>Here is where Cuomo’s responses are revealing. </p>
<p>In his first official statement, released on Feb. 28, 2021, <a href="https://www.governor.ny.gov/news/statement-governor-andrew-m-cuomo-209">out of 18 “I” statements</a>, over half were versions of “I never intended,” “I was being playful,” or “I do, on occasion, tease people.” </p>
<p>Cuomo <a href="https://www.c-span.org/video/?509520-1/york-governor-cuomo-apologizes-actions-resign">followed suit in his press conference</a> on March 3, repeating over and over variations on the “I never intended” or “I never knew” or “I didn’t mean it that way” theme. </p>
<p>These statements suggest that, over his long career, Cuomo did not pay attention to the effects of his words and actions on his subordinates, and that the power of his position may have reinforced his heedlessness. </p>
<p>The U.S. Equal Employment Opportunity Commission warns about just this type of scenario in its <a href="https://www.eeoc.gov/chart-risk-factors-harassment-and-responsive-strategies">list of harassment risk factors</a>: “High value employees may perceive themselves as exempt from workplace rules or immune from consequences of their misconduct.” Workplaces with significant power imbalances, too, make the risk factor list.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<p>If the movement sparked by #MeToo focuses only on taking down individual bad actors, it will leave intact the <a href="https://www.yalelawjournal.org/forum/reconceptualizing-sexual-harassment-again">workplace structures</a> that enable and protect the powerful – and that produce statements like Cuomo’s. Ending sexual harassment requires a critical rethinking of workplace power, whether it flows from ownership of a company, management of an office, supervision of a shop floor or the office of the governor.</p><img src="https://counter.theconversation.com/content/158401/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlotte Alexander receives funding from the National Science Foundation. </span></em></p>Men accused of sexual harassment, including New York Gov. Andrew Cuomo, often refer to their accomplishments in their responses. Their power is their defense, and it blinds them to their victims’ suffering.Charlotte Alexander, Associate Professor of Law and Analytics, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1575512021-03-30T11:38:01Z2021-03-30T11:38:01ZWomen frequently experience sexual harassment at work, yet few claims ever reach a courtroom<figure><img src="https://images.theconversation.com/files/391875/original/file-20210326-20-8eensu.jpg?ixlib=rb-1.1.0&rect=226%2C46%2C4978%2C3418&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Unwanted touching in the office is an all-too-common experience for women.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/sexual-harassment-at-work-royalty-free-image/1216847792">anyaberkutiStock via Getty Images</a></span></figcaption></figure><p><a href="https://www.nytimes.com/article/cuomo-sexual-harassment-nursing-homes-covid-19.html">Sexual harassment allegations</a> against New York Gov. Andrew Cuomo, including at least three from current or former aides, are a reminder of just how commonplace unwanted touching, propositioning and other inappropriate behavior is in the workplace. </p>
<p><a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">My recent research</a> explores the prevalence of toxic work environments – like <a href="https://gothamist.com/news/its-the-cuomo-way-former-staffers-describe-toxic-workplace-under-governors-relentless-thumb">the one described in Albany, New York</a> – and just how startlingly common sexual harassment at work is.</p>
<p>I discovered that even when women try to find justice by suing their alleged abusers, their cases rarely see a courtroom.</p>
<h2>An all-too-common experience</h2>
<p><a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">My own extensive review</a> of numerous studies, surveys and reports shows that sexual harassment at work is a <a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">very common occurrence</a> for women, <a href="https://www.edisonresearch.com/sexualharassmentworkplace/">regardless of age or income level</a>. </p>
<p>The <a href="https://doi.org/10.1111/j.1468-2370.2011.00300.x">numerous studies</a> and surveys reveal that the share of women who experience sexual harassment at work could be <a href="https://www.eeoc.gov/select-task-force-study-harassment-workplace">as low as 25%</a> or as <a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">high as 75%</a>. The actual numbers varied considerably, depending on industry, location and how the question was worded, but they were generally quite high. </p>
<p>This kind of <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">unlawful conduct</a> occurs across all sectors of the economy, but recent studies show a high prevalence of sexually hostile conduct associated with workers in the <a href="https://www.edisonresearch.com/sexualharassmentworkplace/">gig economy</a> and the <a href="https://perma.cc/FL6S-JTK7">fast-food</a> industry.</p>
<h2>Winning claims gets harder</h2>
<p>Perhaps most troubling is the perception – and <a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">unfortunate reality</a> – that engaging in this conduct will result in no real consequences. Indeed, among women who have experienced unwanted sexual advances in the workplace, almost all reported that <a href="http://hdl.handle.net/20.500.11990/1893">male harassers usually go unpunished</a>. </p>
<p><a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">My review of case law and data</a> bears this out.</p>
<p>The <a href="https://blogs.findlaw.com/law_and_life/2017/03/is-sexual-harassment-a-crime.html">vast majority of sexual harassment claims</a> are pursued through the civil courts and <a href="https://www.eeoc.gov/sexual-harassment">Title VII of the Civil Rights Act of 1964</a>. Unlike prosecution under criminal law, civil plaintiffs <a href="https://www.eeoc.gov/remedies-employment-discrimination">may sue for damages</a>, and the burden of proof is lower in these cases. </p>
<p>Additionally, criminal cases <a href="https://www.huffpost.com/entry/what-happens-when-sexual-harassment-cases-go-to-court_b_5a451d98e4b06cd2bd03de8b">typically require more egregious conduct</a>, such as a sexual assault, though some claims may proceed in both courts. </p>
<p><a href="https://www.eeoc.gov/sexual-harassment">Under Title VII</a>, harassment victims may sue their employer for sexual conduct that is deemed unwelcome, severe or pervasive, and when the employer has failed to properly act. </p>
<h2>The Supreme Court raises the bar</h2>
<p>But, as the Supreme Court <a href="https://www.nytimes.com/2010/07/25/us/25roberts.html">has become increasingly conservative</a> under Chief Justice John Roberts, it has added <a href="https://www.cambridge.org/core/books/supreme-courts-new-workplace/83109F79F885301B81C127B3B693667A">additional procedural hurdles</a> for all employment discrimination victims, including those pursuing sexual harassment claims.</p>
<p>Most notably, in cases <a href="https://supreme.justia.com/cases/federal/us/550/544/">brought in 2007</a> and <a href="https://supreme.justia.com/cases/federal/us/556/662/">2009</a>, the Supreme Court articulated a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1477519">rigid new standard</a> for bringing civil claims – that the plaintiffs must allege a “plausible” claim for relief – which makes it far harder for workplace victims to bring them. </p>
<p>The plausibility standard is <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3269469">particularly difficult</a> for employment discrimination plaintiffs to satisfy. These claims often require a showing of discriminatory intent, which can be difficult to establish early in a case.</p>
<p>The court also made it harder for women to aggregate their discrimination claims after it raised the threshold for all class-action lawsuits in a <a href="https://casetext.com/case/wal-mart-stores-inc-v-dukes-2">2011 case involving Walmart</a>. This <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232349">raised the bar</a> for women who sue their employers alleging pay and promotion discrimination. The same higher standard now applies to class-action sexual harassment claims as well. </p>
<p>It’s <a href="https://www.eeoc.gov/harassment">often easier for a victim to prevail</a> when a supervisor is involved in the unlawful conduct because, where a hostile work environment is established, the burden of proof shifts to the employer to show that it acted responsibly. But in 2013, the <a href="https://www.law.cornell.edu/supremecourt/text/11-556">court changed who counts as a supervisor</a> in the workplace, limiting it to someone with the power to hire, fire, promote or otherwise tangibly affect the accuser’s employment. </p>
<p>An analysis found that this <a href="https://archive.thinkprogress.org/exclusive-43-sexual-harassment-cases-that-were-thrown-out-because-of-one-supreme-court-decision-787793f93ac2/">quickly resulted</a> in 43 case dismissals. </p>
<p>Claims of sexual harassment with the U.S. Equal Employment Opportunity Commission, the federal agency established to administer and enforce civil rights laws against workplace discrimination, have <a href="https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2020">remained quite consistent</a> over the past decade. Of the 6,500 to 8,000 or so cases each year, only about 3% to 6% ever <a href="https://www.npr.org/2017/11/28/565743374/sexual-harassment-cases-often-rejected-by-courts">make it to a jury trial</a>.</p>
<p>What happens to the thousands of other cases is less clear because of the many variables and mixed reporting standards. Cases may be dismissed early in the case, during discovery or even right before trial. Compiling this data in any meaningful way <a href="https://money.cnn.com/2017/11/30/pf/sexual-harassment-data/index.html">can be difficult</a>, if not impossible. </p>
<p>To add to this problem, many other cases are settled, often pursuant to a <a href="https://fortune.com/2020/09/18/nda-workplace-sexual-harassment-discrimination/">nondisclosure agreement</a>, which means the parties can’t talk about what’s in it, so the exact outcome in these cases may never be publicly known. Indeed, many potential claims may even be settled before a case is ever filed, further skewing any case data in this area.</p>
<figure class="align-center ">
<img alt="New York Gov. Andrew Cuomo gestures with his hands during a news conference with the seal of New York behind him" src="https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391818/original/file-20210325-15-bxfaj3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Gov. Cuomo has resisted calls to resign.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakCuomo/4b1759158b6d458e8a34772a2866cb09/photo?Query=cuomo&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8836&currentItemNo=5">Brendan McDermid/Pool Photo via AP</a></span>
</figcaption>
</figure>
<h2>Rejected claims</h2>
<p>My analysis of some individual harassment claims is still quite revealing and shows that the courts are – in many instances – failing to give these claims the attention they deserve. These courts seem to be requiring an almost impossible level of detail by the plaintiffs early in the case.</p>
<p>For example, in one recent case, a federal court dismissed a claim in which the alleged victim, a customer service agent and administrative assistant, asserted in part that her co-worker <a href="https://casetext.com/case/looney-v-simply-aroma-llc">rubbed his genitals against her buttocks</a>. In rejecting the claim, the court <a href="https://casetext.com/case/looney-v-simply-aroma-llc">found the allegations insufficient</a>, concluding that the victim “fails [to] offer sufficient factual detail that would allow the court to reasonably infer the frequency in which [the co-worker’s] actions occurred over the course of her employment with [the employer].” </p>
<p>Another court <a href="https://lawreview.law.ucdavis.edu/issues/54/3/articles/seiner.html">dismissed a claim</a> in which the alleged victim, who <a href="https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2015cv7843-36">worked as a janitor at a manufacturing facility</a>, maintained that she was instructed by a manager not to speak with other workers without permission “because she was a married woman” and that her fellow employees would be “trying to sniff that.” The court held that the worker did not allege enough detail in the complaint to provide sufficient “facts to raise her right to relief above the speculative level.” </p>
<p>And in a case in which a prison worker alleged that she was required to observe while “a female visitor masturbated in front of a male inmate” and overheard lewd language, the <a href="https://casetext.com/case/kleehammer-v-monroe-county">court found</a> that there was not “a plausible hostile environment claim,” at least partially as a result of the court’s belief that the worker could not establish that any of the conduct occurred “because of Plaintiff’s sex.” In reaching this decision, the court specifically relied on the newly rigid plausibility standard adopted by the Supreme Court. </p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<p>Given the difficulty women have prevailing on these claims, it may not seem surprising that Cuomo has mounted a defense and <a href="https://nymag.com/intelligencer/article/everyone-calling-for-cuomo-resign.html">resisted calls to resign</a> from not only his Republican rivals but members of his own Democratic Party as well. </p>
<p>Until employers and others are held to account in court for this type of unlawful harassing conduct, I believe that there will not be any relief for thousands of victims of sexual harassment.</p><img src="https://counter.theconversation.com/content/157551/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph A. Seiner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A review of some cases offers a window into why very few civil sexual harassment claims make it to trial.Joseph A. Seiner, Oliver Ellsworth Professor of Federal Practice & Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1564742021-03-08T21:12:15Z2021-03-08T21:12:15ZNew York Gov. Cuomo is the textbook example of how not to apologize<figure><img src="https://images.theconversation.com/files/388339/original/file-20210308-16-xvqniv.jpg?ixlib=rb-1.1.0&rect=71%2C23%2C1925%2C1047&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cuomo deflected responsibility during his public apology.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CuomoSexualHarassment/83bc96728ef24300a35dcfb4db55d942/photo?Query=cuomo&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8641&currentItemNo=43">Office of the NY Governor via AP</a></span></figcaption></figure><p>New York Gov. Andrew Cuomo’s two apologies for alleged sexual misconduct are straight out of a master class in how not to say you’re sorry. </p>
<p>The governor, who had become <a href="https://www.npr.org/2020/03/24/820270978/new-york-gov-andrew-cuomo-takes-the-spotlight-in-coronavirus-response">something of a celebrity</a> during his nationally broadcast press conferences early in the coronavirus pandemic, is now embroiled in a <a href="https://www.nytimes.com/2021/03/03/nyregion/cuomo-sexual-harassment-scandal-apology-non-resignation.html">sexual harassment scandal</a> involving <a href="https://newyork.cbslocal.com/2021/03/09/ana-liss-andrew-cuomo-accusations/">six female accusers</a>. This comes <a href="https://www.nytimes.com/2021/03/04/nyregion/cuomo-nursing-home-deaths.html">amid the disclosure</a> that Cuomo’s administration intentionally underreported the number of nursing home residents in New York who died of COVID-19. </p>
<p>After <a href="https://www.governor.ny.gov/news/statement-governor-andrew-m-cuomo-209">first issuing just a statement</a> on Feb. 28 that failed to calm the furor about the sexual harassment allegations, he <a href="https://www.c-span.org/video/?509520-1/york-governor-cuomo-apologizes-actions-resign">held a press conference</a> three days later in which he publicly apologized for making potentially offensive comments but denied allegations about inappropriate touching. </p>
<p>Both “apologies” <a href="https://www.timesunion.com/news/article/Rosie-Perez-Cuomo-s-apology-an-admission-of-15993161.phpp">were widely panned</a> and <a href="https://www.nydailynews.com/news/politics/ny-cuomo-apology-charlotte-bennett-20210301-6ozf4zfgcbcsfmxyutrfp3xfxm-story.html">left victims</a>, <a href="https://www.ny1.com/nyc/all-boroughs/politics/2021/03/04/-a-performance-worthy-of-an-emmy----cuomo-s-apology-falls-flat">Cuomo’s critics</a> and <a href="https://13wham.com/news/local/local-lawmakers-unimpressed-with-cuomos-apology-following-sex-harassment-claims">even some of his supporters</a> <a href="https://www.washingtonpost.com/politics/2021/03/03/parsing-andrew-cuomos-apology">unsatisfied</a>. The Democratic leader of the state Senate <a href="https://www.nytimes.com/2021/03/07/nyregion/cuomo-sex-harassment.html">called on him to resign</a>. </p>
<p>As an <a href="https://www.middlebury.edu/institute/people/lisa-leopold">English language studies professor</a> who has analyzed the language of <a href="https://theconversation.com/how-to-say-im-sorry-whether-youve-appeared-in-a-racist-photo-harassed-women-or-just-plain-screwed-up-107678">public apologies</a>, I believe Cuomo’s efforts can provide some value at least: They demonstrate perfectly what you shouldn’t do when you want to show a loved one, a colleague or your constituents that you’re sorry for something you did wrong. </p>
<h2>1. Do not deny, obfuscate or minimize wrongdoing</h2>
<p>Even as he apologized, Cuomo did his best to leave people with the impression he didn’t do anything wrong. </p>
<p>To his credit, he didn’t deny everything. But he used <a href="https://doi.org/10.1016/j.pragma.2008.11.007">another common tactic of someone who is only reluctantly apologizing</a>: He conceded to part but not all of the offense by acknowledging potentially inappropriate remarks but denying inappropriate touching. This blurs the nature of the offense and is a <a href="https://doi.org/10.1016/j.pragma.2008.11.007">classic way public figures apologize</a> when they wish to avoid shouldering full responsibility. </p>
<p>He also reverses the role of perpetrator and victim. Describing his actions as “playful” and “good-natured,” Cuomo alludes to his own “hurt” and said that his words were “misinterpreted,” thereby assigning some culpability to his accusers for their oversensitivity. </p>
<p>Finally, Cuomo depicted his behavior in vague, neutral terms such as “interactions” or “it.” <a href="https://doi.org/10.1016/j.pragma.2018.05.014">Research shows</a> that this tactic avoids explicitly naming the transgression someone’s accused of and weakens an apology. Cuomo used subjunctive language like “may have been” rather than “were” when describing his actions as “too personal,” which <a href="https://global.oup.com/academic/product/sorry-about-that-9780199300914?cc=us&lang=en&">weakens the apology by making the transgression hypothetical</a>. He further minimized wrongdoing by emphasizing his innocent intentions over a dozen times in the two apologies, <a href="https://doi.org/10.1016/j.pragma.2008.11.007">another common tactic</a>. </p>
<p><iframe id="VUtb1" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/VUtb1/5/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Research underscores just how important acknowledging wrongdoing is. <a href="https://doi.org/10.1023/A:1025068306386">A study comparing various apology strategies</a> showed that a clear statement of apology such as “I’m sorry for …” made the most difference in the audience’s assessment of the apology’s appropriateness. </p>
<p>Other studies have emphasized the importance of specifically naming the transgression for the apology to <a href="https://doi.org/10.1016/j.pragma.2018.05.014">demonstrate responsibility</a> and <a href="https://doi.org/10.1016/j.pragma.2019.01.001">be effective</a>.</p>
<h2>2. Do not distance yourself from the wrongdoing</h2>
<p>Cuomo also deflected responsibility by using passive and conditional words – “if they were offended” – as well as euphemisms. For example, he expressed embarrassment for “what happened” as though he was not responsible.</p>
<p>Research shows that <a href="https://global.oup.com/academic/product/sorry-about-that-9780199300914?cc=us&lang=en&">passive</a> and <a href="https://doi.org/10.1016/j.pragma.2018.05.014">conditional</a> language <a href="https://doi.org/10.1515/9783110214468">weakens apologies</a> since it allows transgressors not to own up to their transgressions.</p>
<p>He also diverted attention to his own self-improvement at the expense of his victims’ pain by stating, “I will be the better from this experience.”</p>
<p>Studies show that explicitly claiming responsibility for the offense is critical for both <a href="https://www.worldcat.org/title/cross-cultural-pragmatics-requests-and-apologies/oclc/556370037">personal</a> and <a href="https://doi.org/10.1007/s10551-011-0915-9">public</a> apologies to be considered valid. When at fault, people making an apology should <a href="https://www.researchgate.net/publication/277765449_Apologising_in_British_English">avoid attributing blame</a> to anyone or anything other than themselves. That means framing the apology in the <a href="https://global.oup.com/academic/product/sorry-about-that-9780199300914?cc=us&lang=en&">active voice</a> and using <a href="https://doi.org/10.1016/j.pragma.2018.11.022">“I” statements</a>.</p>
<h2>3. Apologize for your actions – not others’ feelings</h2>
<p>“To the extent anyone felt that way, I am truly sorry about that.” </p>
<p>Cuomo leaves ambiguous whether he intends “sorry” to express an apology or sympathy, <a href="https://doi.org/10.1016/j.pragma.2008.11.007">a tactic</a> public figures may use to express regret while evading culpability. </p>
<p>Apologizing for the outcome – someone being hurt – rather than the act that caused it lessens the transgressor’s responsibility by <a href="http://www.doi.org/10.1177/1350508410367840">placing some blame</a> on victims for their sensitivity, which further weakens its sincerity. Even Cuomo’s use of the word “that” at the end of the sentence above avoids explicit characterization of the offense, which research shows is <a href="http://www.doi.org/10.13140/RG.2.1.3370.9285">another way</a> to distance oneself from the transgression. </p>
<p>Apologists should refrain from apologizing for others’ pain without <a href="https://doi.org/10.1177/1350508410367840">claiming ownership</a> for the behavior that caused the pain.</p>
<h2>4. Do express empathy and remorse</h2>
<p>While Cuomo showed what not to do when making an apology, David Neeleman, former CEO of JetBlue Airlines, demonstrated <a href="https://cdn.theconversation.com/static_files/files/1510/his-apology-letter.pdf?1615303244">how to do it effectively</a>. The apology came in 2007, after an <a href="https://www.nbcnews.com/id/wbna18234117">operational snafu during a winter storm</a> caused the cancellation of over 1,000 flghts and left some customers stuck in airplanes on the ground for up to 10 hours. </p>
<p>In a statement, Neeleman clearly expressed empathy and remorse to the tens of thousands of customers affected.</p>
<p>“Words cannot express how truly sorry we are for the anxiety, frustration and inconvenience that you, your family, friends and colleagues experienced,” he said. </p>
<p><a href="https://www.youtube.com/watch?v=R7vP01U8qr4">Psychologists</a> and <a href="https://doi.org/10.1016/j.pragma.2018.11.022">linguists</a> have documented just how important showing empathy is in an apology, as is <a href="https://doi.org/10.1016/j.pragma.2010.02.003">exhibiting deep remorse</a>. Needless to say, Cuomo did not do either well.</p>
<p>While Cuomo’s remorse is clouded by his pleas of innocent intentions, Neeleman said he was “deeply sorry” and regretted having “failed to deliver on this promise.”</p>
<p><a href="https://www.routledge.com/Relations-in-Public-Microstudies-of-the-Public-Order/Goffman/p/book/9781412810067">Erving Goffman</a>, an early pioneer in apology research, emphasized that denial, deflection and minimization do not mix well with empathy and remorse. To express empathy and remorse in your next apology, focus on healing the offended party’s pain by acknowledging, not minimizing, it.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/156474/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Leopold does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Cuomo used language that people forced to apologize often deploy to avoid taking responsibility and show genuine contrition. An expert on public apologies suggests three don'ts and a do.Lisa Leopold, Associate Professor of English Language Studies, The Middlebury Institute of International Studies at Monterey, MiddleburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1476292020-10-07T12:25:59Z2020-10-07T12:25:59ZAmid COVID-19 spike in ultra-Orthodox areas, Jewish history may explain reluctance of some to restrictions<figure><img src="https://images.theconversation.com/files/362016/original/file-20201006-14-1n436l3.jpg?ixlib=rb-1.1.0&rect=36%2C14%2C4839%2C3230&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">COVID-19 has spiked in ultra-Orthodox Jewish parts of New York City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/person-walks-through-the-brooklyn-neighborhood-of-borough-news-photo/1278637895?adppopup=true">Spencer Platt/Getty Images</a></span></figcaption></figure><p>A <a href="https://www.nytimes.com/2020/10/05/nyregion/cuomo-shutdown-coronavirus.html">spike in coronavirus cases in several Orthodox Jewish areas of New York</a> has prompted state and city authorities to impose new localized restrictions aimed at halting the spread.</p>
<p>On Oct. 5, New York Gov. Andrew Cuomo announced that nearly 100 public schools and 200 private schools in 20 ZIP codes – many of which have a large ultra-Orthodox population and have seen increased rates of positive test results of COVID-19 – would <a href="https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-progress-during-covid-19-pandemic-41">end in-person classes</a> “temporarily.”</p>
<p>The move has <a href="https://www.timesofisrael.com/some-orthodox-jews-bristle-at-nycs-response-to-virus-surge/">sparked animosity</a> among some Orthodox Jews, who claim that they are being <a href="https://apnews.com/article/virus-outbreak-new-york-new-york-city-andrew-cuomo-brooklyn-654a7eeeeccc82a80b435b6d4ed1c7fc">unfairly singled out</a>. It comes amid warnings from New York Mayor Bill de Blasio of <a href="https://www.politico.com/states/new-york/city-hall/story/2020/09/23/de-blasio-says-urgent-action-needed-to-contain-coronavirus-clusters-in-orthodox-communities-1317961">further action to prevent the spread</a> and follows earlier instances, including the <a href="https://www.nytimes.com/2020/04/28/nyregion/hasidic-funeral-coronavirus-de-blasio.html">breaking up a funeral for an Orthodox Jewish rabbi</a> by police in Brooklyn on April 28.</p>
<p>Similar tensions have <a href="https://www.nytimes.com/2020/09/08/world/middleeast/israel-coronavirus-ronni-gamzu-netanyahu.html">played out in Israel</a>, where recent plans to implement a system to identify coronavirus hot spots met resistance from some ultra-Orthodox leaders, who suggested it was unfair to place restrictions on their communities while many secular Israelis have been <a href="https://www.reuters.com/article/us-health-coronavirus-israel-protests-idUSKBN26O0XQ">gathering regularly to demonstrate against the government</a>. Rather than loosen restrictions on the ultra-Orthodox community, the government <a href="https://www.haaretz.com/israel-news/.premium-despite-restrictions-anti-netanyahu-protests-continue-at-thousands-of-locations-1.9205689">tightened restrictions on demonstrations</a>, resulting in additional tension between secular and ultra-Orthodox Israelis.</p>
<p>Most prominent rabbis around the world have supported government regulations intended to curb the spread of coronavirus, even if it means closing places of study and worship. But some <a href="https://www.oxfordscholarship.com/view/10.1093/oso/9780190680251.001.0001/oso-9780190680251-miscMatter-7">observant Jewish</a> communities in the United States and Israel have been <a href="https://www.nytimes.com/2020/03/30/world/middleeast/coronavirus-israel-cases-orthodox.html?action=click&module=Top%20Stories&pgtype=Homepage">reluctant to adopt social distancing</a>. </p>
<p>Outsiders are often <a href="https://time.com/5815426/israel-orthodox-jewish-coronavirus/">outraged</a> when religious communities defy policies meant to protect the general public. </p>
<p>As <a href="https://pages.uncc.edu/joyce-dalsheim/">an anthropologist who studies</a> religion, politics, identity and conflict in Israel and Palestine, <a href="https://rai.onlinelibrary.wiley.com/doi/abs/10.1111/1467-8322.12152">my research</a> helps explain why some strictly observant Jewish communities disobey public health guidelines – and it’s more complicated than simply flouting the rules. </p>
<h2>Who are Haredi Jews?</h2>
<p>Ultra-Orthodox, or <a href="https://jerusaleminstitute.org.il/wp-content/uploads/2019/06/PUB_haredcom_eng.pdf">Haredi</a>, Jewish communities are <a href="https://www.myjewishlearning.com/article/haredim-charedim/">a diverse population</a>, with varying spiritual and cultural practices. But they all follow <a href="https://www.myjewishlearning.com/article/halakhah-the-laws-of-jewish-life/">Halacha</a>, loosely translated as Jewish law. </p>
<p>As such, many do not share the same information sources that others take for granted. In <a href="https://www.haaretz.com/israel-news/.premium-coronavirus-the-greatest-challenge-to-ultra-orthodox-life-since-the-holocaust-1.8730678">accordance with the rulings of their rabbis</a>, internet access, television broadcasts and certain cellphone functions are generally limited in strictly observant Jewish communities. </p>
<p>Maintaining their closeness to God by <a href="https://faculty.biu.ac.il/%7Emfriedma/Haredi-Violence.pdf">distancing themselves from the secular world</a> prevented many Haredim from seeing news reports of the virus <a href="https://www.cnn.com/2020/04/16/asia/asia-europe-us-coronavirus-delay-intl-hnk/index.html">spreading worldwide</a> in February and March. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/330424/original/file-20200424-163067-16kal5r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The funeral for a Brooklyn rabbi who died from COVID-19 in the ultra-Orthodox Borough Park neighborhood in New York on April 5.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-speaks-as-hundreds-of-members-of-the-orthodox-jewish-news-photo/1217002199?adppopup=true">Spencer Platt/Getty Images</a></span>
</figcaption>
</figure>
<p>Some Haredi leaders <a href="https://www.haaretz.com/israel-news/synagogues-to-close-under-new-coronavirus-regulations-1.8708347">maintained that gathering to pray and study remained paramount</a>. Studying the Hebrew scriptures, or Torah, is a commandment and a duty in Judaism. Haredi men generally gather to pray three times daily. Students at yeshivas, or Jewish seminaries, may spend 18 hours a day studying together. </p>
<p>More than a way of life, prayer and study are believed to be the means for protecting life itself. <a href="https://www.sefaria.org/Sanhedrin.99b.11?ven=William_Davidson_Edition_-_English&lang=bi&with=all&lang2=en">According to Jewish sages</a>, “One who engages in Torah study also protects the entire world.” Indeed, “<a href="https://books.google.com/books?id=nifOxU_RrCAC&pg=PA170&lpg=PA170&dq=%22Without+the+Torah+the+world+falls%22&source=bl&ots=7Am9VF_t3p&sig=ACfU3U3Q6yb0mHKTkkld2PGewrLSIwOqZw&hl=en&sa=X&ved=2ahUKEwjAl8Pi7NHoAhXAhHIEHQ5xAykQ6AEwAnoECAgQNA#v=onepage&q=%22Without%20the%20Torah%20the%20world%20falls%22&f=false">without Torah the world falls</a>.” </p>
<p>The importance of engaging with the Torah explains why one <a href="https://www.timesofisrael.com/haredim-have-finally-begun-embracing-social-distancing-why-did-it-take-so-long/">prominent rabbi in Israel insisted</a> in March that “canceling Torah study is more dangerous than the coronavirus.”</p>
<p>Ultimately, the Israeli government intervened to enforce its coronavirus restrictions. On March 22, police were sent into <a href="https://www.timesofisrael.com/medics-attacked-en-route-to-conduct-virus-test-in-haredi-neighborhood-1-injured/">Me’a She’arim</a>, a Haredi neighborhood in Jerusalem, to end public gatherings, close synagogues and shutter schools. </p>
<p>They were met with <a href="https://www.timesofisrael.com/jerusalem-ultra-orthodox-clash-with-cops-enforcing-virus-lockdown-3-arrested/">curses, slurs and thrown stones</a>. Some Haredim even <a href="https://www.cnn.com/2020/03/31/middleeast/israel-coronavirus-ultra-orthodox-intl/index.html">called the Israeli police “Nazis.”</a></p>
<h2>Collective memory</h2>
<p>While such responses might seem extreme to outsiders, they become clearer when considering Jewish history and the memories provoked by police intervention. </p>
<p><a href="https://anthrosource.onlinelibrary.wiley.com/">Anthropological research</a> demonstrates that people <a href="https://books.google.com/books?hl=en&lr=lang_en&id=BZ1BmKEHti0C&oi=fnd&pg=PR5&dq=geertz+the+interpretation+of+cultures&ots=wbFN8-5Bw3&sig=ero6Kq6bskmr4Us3Trii8TedPHA#v=onepage&q=geertz%20the%20interpretation%20of%20cultures&f=false">give meaning to their experiences</a> in different ways. Our perception, imagination and actions are deeply embedded in the whole of our experiences. The past – whether individually experienced or collectively nourished by the community – gives meaning to the present. </p>
<p><a href="https://plato.stanford.edu/entries/bergson/">Henri Bergson</a>, a French philosopher, used the term “duration” to explain how the past shifts to show itself in ways that appeal to current experiences in different ways for different people.</p>
<p>In <a href="https://rai.onlinelibrary.wiley.com/doi/full/10.1111/1467-8322.12152?casa_token=Tn91SVNDWrkAAAAA%3AkB9zs8FYq6qXADFp-T2uFM6pD_7vGJaf6tPawJMiCOGIQrZGeb0yUwCJYXVYpiDCIVyVLrVAwW42Ark">times of crisis</a> like the coronavirus pandemic, this sense of duration becomes more acute. </p>
<p>For some, hospital tents erected in public places evoke World War I. A Holocaust survivor recently told me the stay-at-home order brought back memories of her childhood <a href="https://www.adl.org/holocaust-education/hidden-child-foundation">years of confinement hiding from the Nazis</a>. One New Orleans resident found that the “flood” of coronavirus deaths <a href="https://www.theguardian.com/us-news/2020/mar/26/new-orleans-surviving-katrina-battles-covid-19-coronavirus">recalled Hurricane Katrina</a>.</p>
<p>Duration as personal memory is central to an individual’s sense of self, but it arises in collective memories, too. </p>
<p>Collective memory, including the <a href="https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199944422.001.0001/acprof-9780199944422">stories we all tell</a> ourselves and our children about our past, gives meaning and purpose to our collective selves. These stories recount struggles and triumphs and help <a href="https://books.google.com/books?hl=en&lr=lang_en&id=3GWqOS-52IsC&oi=fnd&pg=PP11&dq=Hayden+White,+the+content+of+the+form&ots=lIsbL_gf73&sig=It2nqawWmAxhg0jFXqq893LnZsk#v=onepage&q=Hayden%20White%2C%20the%20content%20of%20the%20form&f=false">define our moral community</a>.</p>
<p>Duration interacts with collective memory, and is <a href="https://books.google.com/books?hl=en&lr=lang_en&id=NtuCCgAAQBAJ&oi=fnd&pg=PR9&dq=DAvid+Lowenthal&ots=wXjCzA5aPq&sig=lIONB1lrdm33E0PDQD4y8CukHNc#v=onepage&q=DAvid%20Lowenthal&f=false">key</a> to the formation of group identity. </p>
<h2>History of persecution</h2>
<p>The historical persecution of Jews around the world is central to both secular and strictly observant Jews. However, how that memory works in contemporary circumstances is not predetermined. My <a href="https://rai.onlinelibrary.wiley.com/doi/abs/10.1111/1467-8322.12152">research demonstrates</a> that different aspects of the past inform collective meaning and actions differently. </p>
<p>Unlike most Israelis – who see Jewish history as a justification for the state of Israel and understand the Israeli army and police as existing to protect them – <a href="https://www.timesofisrael.com/riot-in-jerusalem-haredi-area-over-virus-regulations-girl-hit-by-police-grenade/">some Israeli Haredim distrust</a> the government and its functionaries. </p>
<p>In fact, <a href="https://books.google.com/books?hl=en&lr=lang_en&id=0ZKwDwAAQBAJ&oi=fnd&pg=PP1&dq=Dalsheim,+note+on+terms&ots=oRddwDBKDR&sig=xGcDgtH2LnA-y1hRmOen0kk82yE#v=snippet&q=Haredi&f=false">Haredi Jews</a>, who make up about 10% of Israel’s population, are <a href="https://www.press.uchicago.edu/ucp/books/book/distributed/T/bo20852544.html">foundationally opposed to Zionism</a>, the political ideology of Jewish nationalism that led to the establishment of Israel in 1948. </p>
<p>While Haredi Jews believe that God promised the land of Israel to the Jewish people, they are also certain that promise cannot be fulfilled by human intervention in God’s work, such as the establishment of a nation state. They <a href="https://global.oup.com/academic/product/israel-has-a-jewish-problem-9780190680251?cc=us&lang=en&">have previously clashed</a> with the Israeli government and <a href="https://www.jpost.com/israel-news/haredim-protest-in-jerusalem-over-proposed-draft-law-544605">law enforcement</a> over compulsory military service and other policies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/330421/original/file-20200424-163136-q8umf9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Israeli police officers disperse ultra-Orthodox protesters who oppose military conscription in Jerusalem, July 2, 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/israeli-police-officers-intervene-ultra-orthodox-jews-with-news-photo/1153324783?adppopup=true">Faiz Abu Rmeleh/Anadolu Agency/Getty Images</a></span>
</figcaption>
</figure>
<h2>Suspicion of police</h2>
<p>So when armed men in uniform entered their neighborhoods to close down synagogues and yeshivas, members of the Haredi community drew on their collective memories of soldiers and police <a href="https://encyclopedia.ushmm.org/content/en/article/pogroms">wreaking havoc and destruction on Jewish communities</a> in czarist Russia and later in Western Europe. Rather than feeling protected by the state, they were <a href="https://www.jpost.com/Israel-News/Coronavirus-and-the-haredi-community-622471">fearful</a> and <a href="https://www.jpost.com/israel-news/want-people-to-follow-coronavirus-guidelines-create-trust-622980?utm_source=spotim&utm_medium=spotim_recirculation&spot_im_redirect_source=pitc&spot_im_comment_id=sp_jpost_622980_c_jxfgUX&spot_im_highlight_immediate=true">suspicious</a>. </p>
<p><a href="https://www.tandfonline.com/doi/full/10.1080/13621020802015388?casa_token=aU5wWEADNp0AAAAA%3ARHwnzr8E3ZiSC0mtGxTW5XjJ7gHw_kJpq-6QYf4JfWtt4GdckGFZL-TxsZ712l3BY6B6LAMxlRAH">Suspicion of the police</a> is common <a href="https://www.jpost.com/Israel-News/Coronavirus-and-the-haredi-community-622471">in other communities</a> historically mistreated by law enforcement. The collective memories of both <a href="https://www.britannica.com/topic/police/Police-and-minorities">Black Americans</a> and the Roma of Europe, for example, associate police with violence and danger. </p>
<p>When facing a crisis like the coronavirus, many people rely primarily on science, technology and governments for protection. And the Haredim <a href="https://www.jstor.org/stable/41349798?seq=1#metadata_info_tab_contents">do not reject science or medicine</a>.</p>
<p>But for them, living the Torah life through daily study and prayer is <a href="https://www.oxfordscholarship.com/view/10.1093/oso/9780190680251.001.0001/oso-9780190680251-chapter-6">the primary means</a> by which all human life is maintained and preserved. When the political order interferes with their work, the consequences could be more disastrous than a pandemic. It could mean the end of Jewish life, if not humanity itself. </p>
<p><em>This article is an updated version of a <a href="https://theconversation.com/jewish-history-explains-why-some-ultra-orthodox-communities-defy-coronavirus-restrictions-135292">story that was published</a> on April 27.</em></p><img src="https://counter.theconversation.com/content/147629/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joyce Dalsheim does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Authorities have closed schools in some ultra-Orthodox areas of New York. The reasons for apparent noncompliance with public health guidelines are complicated, explains a cultural anthropologist.Joyce Dalsheim, Associate Professor of Global Studies, University of North Carolina – CharlotteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1364762020-05-04T12:08:46Z2020-05-04T12:08:46ZLeaders’ empathy matters in the midst of a pandemic<figure><img src="https://images.theconversation.com/files/331865/original/file-20200430-42903-1ukgo59.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Massachusetts Gov. Charlie Baker is near tears as he thanked the Kraft family for flying desperately needed protective masks from China to Boston in a New England Patriots jet, April 1, 2020.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/massachusetts-governor-charles-baker-gives-an-emotional-news-photo/1209081402?adppopup=true">Getty/Jim Davis/The Boston Globe</a></span></figcaption></figure><p>Resilience, communication skills, openness and impulse control top the list of six <a href="https://www.history.com/topics/doris-kearns-goodwin-on-presidential-leadership">qualities</a> that presidential historian Doris Kearns Goodwin says are common to good leaders.</p>
<p>In her book “<a href="https://www.simonandschuster.com/books/Leadership/Doris-Kearns-Goodwin/9781476795928">Leadership: In Turbulent Times</a>,” Goodwin surveyed the lives and leadership styles of four American presidents – Abraham Lincoln, Theodore Roosevelt, Franklin Delano Roosevelt and Lyndon B. Johnson – in an effort to distill what characterized them. </p>
<p>Another of the leadership traits Goodwin lists turns out to be of great value during these pandemic days: empathy.</p>
<p>The leaders who exude empathy in the midst of the COVID-19 crisis are experiencing surges in popularity. The New York Times has <a href="https://www.nytimes.com/2020/03/24/nyregion/governor-andrew-cuomo-coronavirus.html">called</a> Gov. Andrew Cuomo of New York “the politician of the moment,” noting, among other things, his briefings, which now regularly reach national audiences and are “articulate, consistent and often tinged with empathy.”</p>
<p><a href="https://www.bostonglobe.com/2020/04/15/opinion/gov-baker-got-emotional-good-lets-see-more-that/">Even Massachusetts Gov. Charlie Baker</a>, who is known for his businesslike demeanor, has shed tears during press briefings several times in recent weeks. When he recently recounted how his best friend lost his mother to the disease, he choked up. </p>
<p>“I pay attention to the numbers but what I really think about mostly are the stories and the people who are behind the stories,” Baker <a href="https://www.boston.com/news/local-news/2020/04/15/charlie-baker-dont-leave-anything-unsaid-with-loved-ones">said</a>. </p>
<p>This experience, Baker added, caused him to think about “the importance of loved ones putting it all out there and making sure they don’t leave anything unsaid,” confiding that with his own father, “I try to say more.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=608&fit=crop&dpr=1 600w, https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=608&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=608&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=765&fit=crop&dpr=1 754w, https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=765&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/331868/original/file-20200430-42908-z83fsb.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=765&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A scene from Sen. Elizabeth Warren’s endorsement video for Democratic presidential candidate Joe Biden.</span>
<span class="attribution"><a class="source" href="https://twitter.com/ewarren/status/1250408560606969856?s=20">Twitter</a></span>
</figcaption>
</figure>
<h2>Empathy contagion</h2>
<p>In my ethics courses, as well as <a href="http://scholar.google.com/citations?user=2lJV184AAAAJ&hl=en">in my scholarship</a>, I emphasize the importance of empathy in moral decision-making. </p>
<p>Michael Slote, a moral philosopher and author of several <a href="https://global.oup.com/academic/advanced_search?keyword=&author=michael+slote&title=&pubdatemonthfrom=&pubdatemonthfrom_default=select+month&pubdateyearfrom=&pubdatemonthto=&pubdatemonthto_default=select+month&pubdateyearto=&bic=&cc=us&lang=en&submitAdvSrch=Search">books</a> on the resurgent 18th-century movement known as moral sentimentalism, writes, “empathy involves having the feelings of another (involuntarily) aroused in ourselves, as when we see another in pain.” This he likens to an infusion or, more appropriate to our current moment, a contagion of “feeling(s) from one person to another.” </p>
<p>Nell Noddings, one of the foundational <a href="https://www.ucpress.edu/book/9780520275706/caring">voices</a> of the <a href="https://www.iep.utm.edu/care-eth/">Ethics of Care</a>, an ethical theory that highlights the importance of empathy, writes that when one empathizes with another, the person doing the empathizing becomes a “duality,” carrying the other’s feelings along with their own.</p>
<h2>The nonempathist</h2>
<p>President Donald Trump is not known for his empathy. Nearly every evening as the president addressed the nation through his televised briefings, he has had the opportunity to show he “<a href="https://www.nytimes.com/1992/03/28/us/1992-campaign-verbatim-heckler-stirs-clinton-anger-excerpts-exchange.html">feels your pain</a>,” to quote one of Trump’s predecessors, Bill Clinton. </p>
<p>But this president can’t seem to overcome what CNN’s chief political analyst Gloria Borger <a href="https://www.cnn.com/2020/03/30/politics/borger-column-trump-empathy/index.html">calls</a> his “empathy gap.” </p>
<p>“Empathy has never been considered one of Mr. Trump’s political assets,” <a href="https://www.nytimes.com/2020/04/30/us/politics/trump-coronavirus-grieving.html">writes Peter Baker, chief White House correspondent for The New York Times</a>. Indeed, at his briefings, Trump shows “more emotion when grieving his lost economic record than his lost constituents,” Baker writes. At best, Trump seems to be able to muster something more akin to sympathy. </p>
<p>But <a href="https://journals.sagepub.com/doi/pdf/10.1177/0141076816680120">sympathy is not the same as empathy</a>. Sympathy feels bad for others. Empathy feels bad with others. Sympathy sees what you’re going through and acknowledges that it must be tough. Empathy attempts to go through it with you.</p>
<p>Trump has done little more than acknowledge suffering, as he did last month when he refused to condemn protesters rallying against COVID-19 restrictions, instead <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-27/">saying</a> “they’ve been going through it a long time … and it’s been a tough process for people … There’s death and there’s problems in staying at home too … they’re suffering.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/331872/original/file-20200430-42913-uuqfb0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald J. Trump speaking at a coronavirus task force briefing April 23, 2020, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-j-trump-speaks-with-members-of-the-news-photo/1211026305?adppopup=true">Getty/Jabin Botsford/The Washington Post</a></span>
</figcaption>
</figure>
<h2>Leverage with voters?</h2>
<p>Now it looks like Trump’s apparent lack of empathy is being used as an election issue by Democratic party leaders.</p>
<p>In a recent town hall, presumptive Democratic presidential nominee Joe Biden <a href="https://www.politico.com/news/2020/04/15/biden-trump-temper-tantrum-188812">pointed</a> directly to Trump’s behavior as a crucial failing: “Have you heard him offer anything that approaches a sincere expression of empathy for the people who are hurting?”</p>
<p>By way of contrast, as endorsements begin to pile up for Biden, empathy is on the tip of his supporters’ tongues. In his endorsement of his former second-in-command, President Barack Obama <a href="https://www.youtube.com/watch?v=5-s3ANu4eMs">praised</a> Biden’s “empathy and grace.” Tom Perez, chairman of the Democratic National Convention, <a href="https://www.cnn.com/2020/04/15/politics/joe-biden-empathy/index.html">noted</a> that the tragedies that Biden has experienced in his own life, including the 1972 death of his first wife and 13-month-old daughter in a car accident and, more recently in 2015, his son’s death from brain cancer, “have given him the empathy to lead us forward.” </p>
<p>And, in her endorsement of Biden, former rival Elizabeth Warren <a href="https://twitter.com/ewarren/status/1250408560606969856?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1250408560606969856&ref_url=https%3A%2F%2Fwww.cnn.com%2F2020%2F04%2F15%2Fpolitics%2Felizabeth-warren-endorses-biden%2Findex.html">highlighted</a> the way his experiences “animate the empathy he extends to Americans who are struggling.” She goes on to state unequivocally, “Empathy matters.”</p>
<h2>Effective leaders empathize</h2>
<p>While there is no definitive list of qualities that all great leaders must possess, Doris Kearns Goodwin writes, “we can detect a certain family resemblance of leadership traits” through history. </p>
<p>Empathy has played a pivotal role in American history when presidents feel with, and act in response to, their constituents’ needs. Indeed, leaders who empathize, who relate to and feel with their people can ask them to do difficult things. </p>
<p>That aptly describes New Zealand’s Prime Minister Jacinda Ardern, who was recently <a href="https://www.theatlantic.com/politics/archive/2020/04/jacinda-ardern-new-zealand-leadership-coronavirus/610237/">profiled</a> in The Atlantic magazine. The article’s headline, perhaps hyperbolically, suggests that because of her ability to empathize, Ardern may be “the most effective leader on the planet.” One of Ardern’s forerunners sums it up: “There’s a high level of trust and confidence in her because of that empathy.” </p>
<p>And empathy works; the trust that New Zealanders have placed in Ardern, along with her government’s strong measures to stem COVID-19, are both credited with dramatically <a href="https://www.nationalgeographic.com/travel/2020/04/what-new-zealand-did-right-in-battling-coronavirus/">reducing</a> the outbreak’s severity in her country.</p>
<p>It is easier to trust an empathetic leader; their empathy is better assurance than the weak sympathy of a leader who grieves the loss of his own power over the loss of life. </p>
<p>It turns out, most of us just can’t empathize with a person like that.</p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-help">Read The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/136476/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan D. Fitzgerald does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Leaders who exude empathy in the midst of the COVID-19 crisis are experiencing surges in popularity. President Donald Trump’s apparent lack of empathy is becoming a campaign issue.Jonathan D. Fitzgerald, Assistant Professor of Humanities, Regis CollegeLicensed as Creative Commons – attribution, no derivatives.