Better late than never: Congress reforms process for handling sexual harassment complaints
Kristin Nicholson | December 14, 2018
Finally! Nearly fourteen months after a cascade of #MeToo revelations led to fresh scrutiny of Congress’s opaque and antiquated process for handling sexual harassment complaints, significant reforms to the system are poised to become law.
Under the 1995 Congressional Accountability Act (CAA), which applied civil rights, labor and workplace safety laws to Congress, congressional employees claiming harassment or discrimination must submit to a cumbersome protocol that mandates mediation and a month-long “cooling off” period, while providing no real support or assistance for claimants navigating the process.
In late 2017, the House and Senate took quick action to require sexual harassment prevention training for all members and staff (if you’re shocked this wasn’t already required, you’re not alone). This was followed in February 2018 by House passage of a CAA reform bill that made a host of improvements to the existing adjudication process. The legislation was paired with administrative changes (effective immediately but applicable only to the House) which mandated that every House office adopt a harassment and discrimination policy and created an Office of Employee Advocacy to provide legal assistance to House employees on CAA matters.
Senate efforts lagged for months, but in May the chamber passed its version of CAA reform. While weaker in several respects than the House measure (and not accompanied by chamber-specific improvements akin to the House changes), the bipartisan support for meaningful reform on both sides of the Capitol led to real optimism. But then… nothing happened.
House leaders signaled an intention to fight for their more robust framework, while word trickled out that the Senate was unwilling to budge on key provisions, including the question of member liability for harassment and discrimination settlements. Over the summer and fall, a large network of former congressional staffers and a collection of outside advocacy groups pressed the chambers to negotiate a strong final agreement. As the months passed, many feared that the 115th Congress would adjourn without passing these critical reforms, requiring the effort to start from scratch in January.
With the lame-duck session close to wrapping up, word spread Wednesday afternoon that a final agreement was near. Less than 24 hours later, the Senate and House had both passed the CAA reform agreement by unanimous consent, and it is on its way to the President’s desk. The bill, like most good legislation, is not perfect. But it represents a massive improvement over the status quo and will ensure legislative branch staffers reporting to work in the 116th Congress will have a much more meaningful set of protections and resources if confronted with harassment or discrimination.
The bill does away with the “cooling off period” currently faced by claimants and will make mediation completely optional, subject to opt-in by both parties. It makes lawmakers personally liable for harassment settlements they enter into, and includes provisions that enhance public transparency for such settlements. Importantly, the bill’s protections will be extended to the entire legislative workforce, including interns, fellows and detailees. Finally, the bill mandates a wide-ranging staff climate survey, the results of which will hopefully be made public to keep Congress accountable for addressing whatever issues are identified.
The bill falls short in requiring members of Congress to repay the Treasury only for harassment settlements, but not for settlements related to discrimination. House members have pledged to introduce legislation to address this issue next year. Furthermore, while House staff will be afforded legal counsel via the Office of Employee Advocacy created by House Resolution in February, Senate staff will only have access to an advocate who can provide technical assistance but not legal counsel. Hiring an attorney to help navigate these claims can be burdensome and extremely expensive, and all staff should have the benefit of legal assistance throughout the adjudication process should they wish to take advantage of it.
As with questions of staff pay and office budgets, protections for the legislative workforce can be a tough sell – after all, there’s no large, natural constituency for caring a whole lot about what happens to congressional staff. One group who does care very much is former staffers, who not only understand what life is like for their successors on the Hill, but also tend to care deeply about the future of the institution as a whole. But these issues should resonate with a much wider audience.
The legislative branch is a workplace that employs roughly 31,000 people, including not just staffers for members of Congress, but Capitol Police, Library of Congress employees, groundskeepers, maintenance staff and many, many more. This enormous workforce deserves the same protections workers in all industries should enjoy, and Congress should be leading the way, not bringing up the rear.
Finally, as I’ve written previously, the unique quirks and characteristics of Capitol Hill – with its massive power imbalances, unconventional job duties and hazy professional boundaries – make it an environment ripe for exploitation. Changing the culture that has allowed harassment, abuse and other inappropriate behavior to proliferate on and around the Hill will require long-term attention and effort. But the Congressional Accountability Act reforms passed this week represent an enormous step in the right direction.