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Can Congress Fix the Shoddy Way It Handles Sexual Harassment?

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December 7, 2017

On Thursday morning, a group of lawmakers in the House of Representatives will meet to take a hard and long-overdue look at an outdated law that governed the way congressional offices dealt with sexual harassment and other workplace violations.

As the harrowing stories of sexual harassment on Capitol Hill are revealed, many of us learned for the first time about the Congressional Accountability Act. It’s a 1995 law that forces congressional employees who experienced sexual harassment and other discriminatory treatment to engage in a lengthy, convoluted, secretive, and little-understood process in order to vindicate their rights. And at the end of the process, the law shamefully authorized any settlement or award payments made to victims to come from an account in the U.S. Treasury and not from the member of Congress’s own pockets.

In fact, we learned last week that from fiscal year 2013 to today, taxpayers paid $359,450 for discrimination claims settlements against six House members, including$84,000 for one claim alleging sexual harassment. Now we know that that claim involved Rep. Blake Farenthold (R-Texas) who has promised to repay the Treasury.

It’s no surprise that the number of settlements is so small. We know that, in general, 90 percent of individuals who experience harassment never take formal action. On the Hill, few dare to take on members of Congress because of the impacts on their careers and emotional well-being. There is often little expectation that justice will be served.

Fortunately, there are several excellent proposals to reform this congressional process under consideration from Sen. Kirsten Gillibrand (D-NY) and Rep. Jackie Speier (D-Calif.). Their bill, called the ME TOO Congress Act of 2017, would revamp the law and recalibrate the power imbalance between members of Congress and staffers on the Hill and in congressional offices across the country.

Some of the things we like about the bill include:

  • New supports for staffers: The bill creates an optional victims’ counsel program, offers an attorney who can provide legal advice and representation, allows the staffer asserting a claim to work remotely if requested or take a paid leave of absence, and creates an online platform to initiate the reporting process.
  • Improved transparency and accountability: The bill prohibits the use of nondisclosure agreements as a condition of starting a complaint, preventing a lawmaker or staff from silencing the employee. It also allows (but does not require) the claimant to waive confidentiality during the counseling phase of the process.
  • More deterrence, accountability, and sunshine: Members of Congress will now be personally liable for any money paid to the claimant and will be required to repay the U.S. Treasury for any awards or settlements made. Additionally, the amount of any settlement or award and the identity of the offending office would be publicly available.
  • Covers more people: The bill provides rights and protections to previously uncovered staffers such as interns, fellows, detailees, and pages. It also provides the same whistleblower protections that executive branch employees receive.
  • Regular internal assessments and trainings: The bill requires annual sexual harassment training and certification for all members and staff, specific training for lawmakers and senior staff on responding to incidents of sexual harassment, implementation of a biennial and confidential climate survey to assess the prevalence of workplace violations and existence of a hostile work environment in Congress.

The elements of the ME TOO Congress Act lay a strong foundation. Improvements should, of course, be made. The ACLU strongly encourages lawmakers to ensure that the reforms apply to all forms of workplace discrimination and not just sexual harassment. Training, accountability, transparency, and victim supports are just as necessary for those who suffer discrimination based on race, ethnicity, religion, age, disability, genetic information as well as sex — including pregnancy, gender identity, and sexual orientation. Additionally, every effort should be made to protect and preserve the victim’s expectation of privacy throughout the process.

It is promising that the ME TOO Congress Act has bipartisan support in the House. But this bill won’t move on its own. Congressional inertia is a powerful thing. Those of us who believe that sexual harassment, sexual assault, and other forms of employment discrimination have no place in Congress, will have to rise up and demand action now.

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