Congress is finally considering legislation to solve its sexual harassment problem.
Over the past three months, at least six members of Congress have been accused of sexually harassing congressional staff. Among them is a member of the very committee tasked with investigating members of Congress accused of harassment, Rep. Patrick Meehan (R-PA), now embroiled in his own scandal — doling out thousands of dollars in taxpayer-funded settlement money to a former aide he said was his “soul mate.”
The sudden media attention on these cases revealed an astonishingly complicated, expensive, and long process that victims must endure to have their complaints heard inside Congress or in front of a district judge. A bipartisan group unveiled a bill this month that would dramatically change this process by eliminating “cooling off periods,” lifting a rule barring victims from going straight to court, and providing an attorney to victims who go through the internal process, a resource members of Congress receive.
The bill, the Congressional Accountability Act of 1995 Reform Act, would also force members of Congress guilty of sexual harassment to pay back the Treasury for any settlement money given to victims.
If the legislation passes, it would fundamentally change an archaic system that attorneys who have represented victims of sexual harassment on Capitol Hill say is stacked against them. But it’ll be up to Congress to pass it — and then actually enforce it.
And while some attorneys who have represented victims of sexual harassment on Capitol Hill believe the new bill is a good start, others think the new legislation is worse than the Congressional Accountability Act it’s intending to reform. The disagreement over how to reform the complaint process — or even if the complaint process is the best step forward for victims of harassment in the first place — demonstrates that even when there’s consensus around the existence of a major problem on the Hill, the solution is harder to find.
The problems with the process
Right now, anyone who’s harassed on Capitol Hill has to go through a lengthy process with the Office of Compliance, which deals with employment discrimination cases.
But the current process has serious problems. As a representative for Rep. Jackie Speier (D-CA) told me, “The current process is completely unbalanced. The survivor coming forward is at the bottom of the totem pole, especially when the perpetrator is a member of Congress.”
Currently, the process for victims of sexual harassment involves mandatory counseling through the Office of Compliance; a mandatory mediation period in which the victim of harassment and their harasser meet, either together or separately, to discuss what took place (and, in some cases, reach a financial settlement); and a mandatory “cooling off” period of at least 30 days — and only then can victims request a hearing before the Office of Compliance board or go to district court.
Even if victims get through the process and receive a settlement, that money comes not from their harasser’s office but from the Settlement and Awards Fund. Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.
No office is required to make those payments public, meaning that legislative staffers — including members of Congress — may have sexually harassed their colleagues and employees on the Hill, and done so with the knowledge that settlements to victims would stay secret. Danielle Brian, executive director of the Project on Government Oversight, told me in November, “It’s no wonder the public has such a low approval of Congress given that they exempt themselves from workplace laws that they apply to the rest of society.”
And for victims, the current process can be excruciating — and career-ending. As the New York Times reported on January 20, the harassment Rep. Meehan’s former staffer experienced, for example, changed the trajectory of her life. “It set her back financially and professionally, as she continued to pay legal costs associated with the complaint even after leaving her job in Mr. Meehan’s office and struggling to find a new one. She moved back in with her parents and ultimately decided to start a new life abroad.”
The bill would streamline the complaint process
The new bill would change the process by which victims of employment discrimination, including sexual harassment, can seek justice and how those victims are compensated.
It appears to have a clear chance of passing and wide bipartisan support. Speaker of the House Paul Ryan said in a statement on the day of the bill’s introduction that it “ensures that victims of workplace harassment have the resources they need to get the justice they deserve.”
The new process eliminates mandatory “cooling off” periods and makes it clear from the start that victims of harassment can move directly to a court proceeding to adjudicate what took place. “At the outset,” a staffer for Speier, who co-sponsored the legislation, said in an interview, “the employee now has a choice — whether they would want to go through a streamlined administrative process or go to court right away.”
Under the new legislation, victims of harassment would have 180 days to make a complaint with the Office of Compliance and then 30 days (though, according to Speier’s office, that might be adjusted to 45 days in a newer version of the bill) to file a claim in federal court or continue with the administrative process.
Either way, the bill would dramatically shorten a process that right now can last more than six months before victims could even get to the settlement phase or opt to pursue justice in district court. In addition, the Office of Compliance General Counsel would launch an investigation as soon as a claim is filed.
Part of the new legislation is the creation of a new Hill office, the Office of Employee Advocacy, which would provide free legal representation to congressional staffers who want to pursue the Office of Compliance process rather than going straight to court.
In addition, the new settlement removes the confidentiality requirements from the Office of Compliance complaint process, though not from any eventual settlement made between a victim and their harasser (non
Speier, in a statement, called the bill “groundbreaking”: “All of us, regardless of geography or party, have heard from our constituents that members of Congress must not be allowed to abuse staff, get away with it, and stick taxpayers with the bill.”
But attorneys who represent victims of harassment on the Hill differ on reforms
Lawyers for victims and other advocates for victims of sexual harassment on the Hill are united in their calls to reform the complaint process. But they’re divided on how this bill will impact the way sexual harassment is handled on the Hill.
For some, the legislation doesn’t go far enough to truly advocate for victims; for others, the bill is, at least, a starting point for further discussion.
The bill is a good start, said Alexis Ronickher, a partner at Katz, Marshall & Banks who has represented multiple congressional staffers in sexual harassment cases, including Meehan’s former aide.
“I think that it does a lot of the critical pieces” of reform, she told me, pointing to the elimination of mandatory “cooling off” and mediation periods, “all of which has been used to protect members of Congress” accused of harassment.
She added that she was hopeful the creation of the Office of Employee Advocacy would level the playing field for congressional staffers. “These cases are not likely to be hugely moneyed,” she told me, so offering free attorneys “puts staffers on equal footing with those [victims] with private attorneys.”
But other attorneys who have worked with victims found some of the details lacking. “People have good intentions; people want to do something,” said Les Alderman, the attorney for Lauren Greene, who filed a lawsuit against Rep. Blake Farenthold in 2014, “but this bill hurts the victims, even worse than just letting the Congressional Accountability Act stand as it is.”
Alderman pointed out that while the bill creates the Office of Employee Advocacy, it doesn’t fund it. “We spent a lot of money doing our investigations so we know every fact and get prepared for trial,” he said, adding that he doubted the new congressional office “will be able to afford that kind of litigation support.” (A spokesperson for Speier said the bill has enough bipartisan support to ensure that funding for free attorneys for victims of harassment won’t be a problem.)
The new bill still discourages victims from filing lawsuits in district court against their harassers, Alderman said. The 30-day deadline to file a lawsuit is far too little time for the due diligence required for most lawyers to introduce a sexual harassment suit in court, he said.
“If you go to a litigator and say, ‘Hey, I have less than 30 days to file a lawsuit,” Alderman told me, “you are very worried about that case.” He added that in his view, “a lot of lawyers would just turn that case down out of hand, because it’s too risky.” (Speier’s spokesperson said the deadline could be extended to 45 days rather than 30 after conversations on the Hill.)
And the new bill did nothing to change the confidentiality protections that are, in his view, silencing victims, Alderman said. While the bill removes the confidentiality requirements surrounding the mediation and counseling process, it doesn’t change the nature of non
“A sitting congressman is still able, under this [bill], to insert [language] into a settlement agreement that a victim cannot speak badly about the congressman in the future,” he said. “That’s what’s stifling people from talking.”
“Unless there’s a real commitment on the top, people aren’t going to believe that sexual harassment is safe to report”
The disagreements about the bill demonstrate how hard it is to fix issues of sexual assault and harassment — particularly when Congress is regulating itself.
The past weeks have provided a vivid example. Meehan, who is caught up in a sexual harassment scandal involving his former aide, is also a member of the House Ethics Committee tasked with investigating sexual harassment claims committed by members of the House. He did not work on writing this legislation.
In response to questions about Meehan, Speier’s office said that they were “very distressed by reports” of Meehan’s harassment, adding, “They’re horrific.”
Ronickher, although she was generally optimistic about the new bill, also made a larger point: Legislation isn’t enough.
“I think what we’re seeing in the larger scheme of things as each of these pieces comes up is that coming forward as a congressional staffer is not just logistically difficult, but the Hill is a culture in which stepping forward has not been accepted,” she told me. “Like any big company, unless there’s a real commitment [at] the top, people aren’t going to believe that sexual harassment is safe to report and that there won’t be retaliation.”