“Survivors who have bravely come forward to share their stories have brought to light just how widespread harassment and discrimination continue to be throughout Capitol Hill. No longer can we allow the perpetrators of these crimes to hide behind a 23-year-old law. It’s time to rewrite the Congressional Accountability Act and update the process through which survivors seek justice.”
These are the closing words of a letter penned by the twenty-two women senators—Republicans and Democrats—to Senate leadership earlier this spring nearly two months after the House of Representatives had passed H.R. 4396 (and the accompanying H.Res. 724) on February 7, thereby passing the Congressional Accountability Act (CAA) of 1995 Reform Act on to the Senate. On May 24, the Senate finally passed its own version of the bill, S. 2952. While both versions of the bill make significant advances from the CAA, the Senate bill has been criticized for leaving out a number of the House bill’s provisions designed to protect employees—including staffers—who are victims of sexual harassment. What’s more, neither bill takes steps to ensure perpetrators are held completely accountable.
The Need for Reform
Under current rules on Capitol Hill, congressional employees who have been harassed or discriminated against in the workplace face a number of unacceptable roadblocks to seeking redress. The CAA designed a process, still in effect, that is overseen by the congressional Office of Compliance in which survivors are forced to go through months of counseling, mediation, and a “cool off” period prior to pursuing legal action. A claimant then must file an additional request for a hearing; the investigation is then only permitted to move forward to court if mediation has been completed. This request is approved at the discretion of a hearing officer appointed by the executive director of the Office of Compliance. During this lengthy process, claimants do not have designated protections against retaliation or for alternate work arrangements. Settlements reached during mediation are paid out of a designated Treasury Department fund or members’ office budgets, without transparency or reimbursement protocol. Lawmakers receive counsel from the taxpayer-funded Office of Employment Counsel, while congressional staffers historically have not. Finally, disputes are only currently allowed to go public if the investigation makes it to court and if the court rules in the claimant’s favor.
With reports and surveys depicting a culture of sexual harassment and skewed power dynamics on the Hill, change brought about by the CAA Reform Act—based on the ME TOO Congress Act introduced in 2017—is long overdue. But given the significant differences between the two versions of the bill put forth by the two chambers of Congress, the CAA Reform Act has been passed back to the House, with growing support for going to conference. Below is a comparison and analysis of the Senate and House proposals for changing the rights of congressional employees experiencing workplace sexual harassment.
| Current Rules vs. House and Senate CAA Reform Proposals |
|
Current Rules |
H.R. 4924 and H. Res. 724 |
S. 2952 |
| Legal Counsel to Congressional Members/Senators vs. to Staffers |
Members/Senators receive advice/counsel from taxpayer-funded Office of Employment Counsel, staffers do not |
Provides congressional staffers with a confidential legal advocate at all stages of proceedings before Office of Compliance and Committee on Ethics; this legal representation is provided free of charge under H. Res. 724, which adjusted the chamber’s internal rules |
Prohibits a licensed attorney who has been designated a confidential advisor from providing legal advice once an indidivual has filed a claim |
| Claimant Rights During Pending Procedures |
No designated protections for alternate work arrangements or retaliation/reprisal |
Claimants may request to work remotely or to take a paid leave of absence if duties cannot be carried out remotely; are protected against retaliation or reprisal |
Claimants may request to work remotely or to take a paid leave of absence if duties cannot be carried out remotely; are protected against retaliation or reprisal. Clarifies that any paid leave taken shall not have effect on vacation or personal leave |
| Confidentiality of Proceedings |
Counseling confidential with exceptions of notifying claimant’s employment office; mediation confidential |
Strengthens confidentiality in that mandatory counseling is ended and all claims and investigations, as well as any information diclosed during the process of mediation, shall remain confidential |
Strengthens confidentiality in that mandatory counseling is ended and all claims and investigations, as well as any information diclosed during the process of mediation, shall remain confidential |
| Mediation and Formal Hearings |
Claimants forced to undergo months of counseling and mediation processes, which can take place “separately or jointly”—does not specify which party makes this decision. Only more than thirty days after mediation is completed can a claimant file a civil action, which is then considered for a hearing by a hearing officer appointed by the executive director of the Office of Compliance. If the hearing request is not dismissed, court proceedings must start sixty to ninety days after complaint was filed |
Ends mandatory mediation process, though claimants and their employing offices may jointly request mediation at any time during an investigation. Formal hearing must begin forty-five days after claimant approaches Office of Compliance (renamed the Office of Congressional Workplace Rights) |
Requires claimants to opt out of mediation process within ten days of filing initial claim. Allows for mediation processes to proceed separately at request of claimant. Election of formal hearing or civil action may be filed after mediation process subject to judicial review in the U.S. Court of Appeals. Formal hearings must begin ninety days after mediation is opted out of or mediation process ends |
| Ethics Committee and Protection of Personally Identifiable Information |
No explicit mention of protecting personally indentifiable information |
Ethics Committee is required to protect the identity, position, or any other personally identifiable information of claimant |
Ethics Committee is required to protect the identity, position, or any other personally identifiable information of claimant. Committee is allowed to retain unredacted reports |
| Ethics Committee and Reimbursement Obligation |
Reimbursements to either the Treasury or office funds are not currently required |
If a payment is made for a settlement in a case where a member/senator is the perpetrator, the member/senator is responsible for reimbursing the account for that amount of money. If this reimbursement is not made within ninety days of the settlement being paid, amounts of their salary will be withheld. No House funds may be used for reimbursements. Creates a third-party investigatory process for settlements |
If a payment is made for a settlement in a case where a member/senator is the perpetrator, the member/senator is responsible for reimbursing the account for “compensatory damages.” The chair and ranking member of Ethics Committee are given the authority to overrule settlement repayments when a member/senator is the perpetrator, determining whether or not the reimbursement of funds paid by the Treasury is appropriate (as well as whether to investigate the claim against the perpetrator at all) |
| Defining Harassment |
Uses definition of harassment established by Supreme Court case Meritor Savings Bank v. Vinson (1986): “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment” |
Simply refers to sexual harassment |
Uses “severe or pervasive” language to define a violation, as well as the phrase “unwelcome harassment” |
| Transparency of Past Offenses |
Financial disclosure reports have to be filed with the clerk of the House of Representatives. No other means of transparency mentioned |
Requires the Office of Compliance—renamed the Office of Congressional Workplace Rights—to publish a report online every six months with information on awards and settlements including: the employing office, the amount of money paid, and violations that were claimed, and if the member/senator had repaid the Treasury account. Does not explicitly state whether an office or perpetrating member/senator themselves will be identified in the report |
Requires the Office of Compliance—renamed the Office of Congressional Workplace Rights—to publish a report online every six months with information on awards and settlements including: the employing office, the amount of money paid, and violations that were claimed, and if the member/senator had repaid the Treasury account. Does not explicitly state whether an office or perpetrating member/senator themselves will be identified in the report |
| Extension of Protection from Employment Discrimination |
No explicit protections for unpaid staffers or employees of Library of Congress are currently in place through the Office of Compliance |
Unpaid staffers and employees of the Library of Congress are covered. Library employees can follow Congressional procedures or Library procedures |
Unpaid staffers and employees of the Library of Congress are covered. Library employees can follow Congressional procedures or Library procedures |
| Length of Investigation |
No deadline for investigation set; if a complaint makes it to court, the decision must be made no more than ninety days after the hearing concludes |
Investigation must conclude ninety days after claim is filed |
No deadline for investigation set |
While it strengthens protections for claimants and congressional staffers in many areas, the Senate’s bill has fallen short of that of the House. Civil and human rights organizations, including The Leadership Conference for Civil and Human Rights, the ACLU, Equal Pay Today!, the National Women’s Law Center, and Public Citizen, have voiced particular concern over a number of the Senate bill provisions outlined in Figure 1, including: the Senate’s failure to establish the provision of pro bono legal representation for its staffers as H. Res. 724 did for those who work in the House and its limitation of a confidential advisor’s role; requiring claimants to opt out of the lengthy mediation process designed by the CAA rather than ending the mandatory mediation process; utilizing the outdated “severe or pervasive” standard of harassment established by Meritor Savings Bank v. Vinson (1986) that has been abused to largely protect perpetrators rather than survivors; and its authorization of the Ethics Committee—which operates slowly and largely behind closed doors—to potentially undermine the obligation of a member/senator who is a perpetrator to reimburse the Treasury for any funds made as a settlement. The Senate bill additionally requires lawmakers who are perpetrators of sexual harassment to repay the Treasury for a settlement’s “compensatory damages” rather than the whole amount of the settlement, as the House bill requires.
Members of the House share a number of the same concerns. Reps. Susan Brooks (R-IN) and Ted Deutch (FL-D), who are chairperson and ranking member of the House Committee on Ethics, respectively, released a statement referencing the Senate bill, declaring: “We believe that any proposal… should include provisions to ensure that members remain personally liable for their own conduct with respect to discrimination and retaliation.” The statement referenced former Rep. Blake Farenthold (R-TX), who stepped down following the news he had used $84,000 of taxpayer money to pay a sexual harassment settlement to a former legislative aide—and then announced he would not repay the Treasury, as the current rules do not require him to do so.
In reconciling the two versions of the CAA Reform Act, Congress should use a broad definition of sexual harassment that does not utilize language measuring the extent to which unwelcome sexual advances must interfere with an individual’s work to be considered harassment. They should preserve the House bill’s clauses—rather than those of the Senate’s—regarding the Ethics Committee and protecting claimant’s identities, as well as the provision of legal counsel to all congressional staffers in addition to members.
Many of the areas in which the two bills converge, such as the replacement of the Office of Compliance with the newly established Office of Congressional Workplace Rights, claimant rights during pending procedures, confidentiality of proceedings, and extension of protection from employment discrimination to unpaid staffers and employees of the Library of Congress, are all strides of progress for workplace rights and approaches to sexual harassment that center on the survivor rather than on the institution. Both bills introduce a level of transparency with regard to past offenses that is much needed in Congress. However, neither bill includes a provision explicitly requiring Congress to disclose publicly the identity of elected officials who are perpetrators sexual harassment. This should be addressed in a conference of the bill. Congressional employees and the public deserve to know if their representative has perpetrated sexual harassment or assault.
Cover Photo: U.S. House Democrats wear black as they participate in a photo-op at the U.S. Capitol prior to President Donald Trump’s first State of the Union address January 30, 2018 in Washington, DC. House Democrats plan to show up in black when attending the State of the Union address this evening in support the #MeToo and #TimesUp movements. (Photo by Alex Wong/Getty Images)
Tags: justice, Rights, sexual harassment, #MeToo, advocacy
Reconciling the Proposed House and Senate Sexual Harassment Accountability Bills
“Survivors who have bravely come forward to share their stories have brought to light just how widespread harassment and discrimination continue to be throughout Capitol Hill. No longer can we allow the perpetrators of these crimes to hide behind a 23-year-old law. It’s time to rewrite the Congressional Accountability Act and update the process through which survivors seek justice.”
These are the closing words of a letter penned by the twenty-two women senators—Republicans and Democrats—to Senate leadership earlier this spring nearly two months after the House of Representatives had passed H.R. 4396 (and the accompanying H.Res. 724) on February 7, thereby passing the Congressional Accountability Act (CAA) of 1995 Reform Act on to the Senate. On May 24, the Senate finally passed its own version of the bill, S. 2952. While both versions of the bill make significant advances from the CAA, the Senate bill has been criticized for leaving out a number of the House bill’s provisions designed to protect employees—including staffers—who are victims of sexual harassment. What’s more, neither bill takes steps to ensure perpetrators are held completely accountable.
The Need for Reform
Under current rules on Capitol Hill, congressional employees who have been harassed or discriminated against in the workplace face a number of unacceptable roadblocks to seeking redress. The CAA designed a process, still in effect, that is overseen by the congressional Office of Compliance in which survivors are forced to go through months of counseling, mediation, and a “cool off” period prior to pursuing legal action. A claimant then must file an additional request for a hearing; the investigation is then only permitted to move forward to court if mediation has been completed. This request is approved at the discretion of a hearing officer appointed by the executive director of the Office of Compliance. During this lengthy process, claimants do not have designated protections against retaliation or for alternate work arrangements. Settlements reached during mediation are paid out of a designated Treasury Department fund or members’ office budgets, without transparency or reimbursement protocol. Lawmakers receive counsel from the taxpayer-funded Office of Employment Counsel, while congressional staffers historically have not. Finally, disputes are only currently allowed to go public if the investigation makes it to court and if the court rules in the claimant’s favor.
With reports and surveys depicting a culture of sexual harassment and skewed power dynamics on the Hill, change brought about by the CAA Reform Act—based on the ME TOO Congress Act introduced in 2017—is long overdue. But given the significant differences between the two versions of the bill put forth by the two chambers of Congress, the CAA Reform Act has been passed back to the House, with growing support for going to conference. Below is a comparison and analysis of the Senate and House proposals for changing the rights of congressional employees experiencing workplace sexual harassment.
download this table as a pdf
While it strengthens protections for claimants and congressional staffers in many areas, the Senate’s bill has fallen short of that of the House. Civil and human rights organizations, including The Leadership Conference for Civil and Human Rights, the ACLU, Equal Pay Today!, the National Women’s Law Center, and Public Citizen, have voiced particular concern over a number of the Senate bill provisions outlined in Figure 1, including: the Senate’s failure to establish the provision of pro bono legal representation for its staffers as H. Res. 724 did for those who work in the House and its limitation of a confidential advisor’s role; requiring claimants to opt out of the lengthy mediation process designed by the CAA rather than ending the mandatory mediation process; utilizing the outdated “severe or pervasive” standard of harassment established by Meritor Savings Bank v. Vinson (1986) that has been abused to largely protect perpetrators rather than survivors; and its authorization of the Ethics Committee—which operates slowly and largely behind closed doors—to potentially undermine the obligation of a member/senator who is a perpetrator to reimburse the Treasury for any funds made as a settlement. The Senate bill additionally requires lawmakers who are perpetrators of sexual harassment to repay the Treasury for a settlement’s “compensatory damages” rather than the whole amount of the settlement, as the House bill requires.
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Members of the House share a number of the same concerns. Reps. Susan Brooks (R-IN) and Ted Deutch (FL-D), who are chairperson and ranking member of the House Committee on Ethics, respectively, released a statement referencing the Senate bill, declaring: “We believe that any proposal… should include provisions to ensure that members remain personally liable for their own conduct with respect to discrimination and retaliation.” The statement referenced former Rep. Blake Farenthold (R-TX), who stepped down following the news he had used $84,000 of taxpayer money to pay a sexual harassment settlement to a former legislative aide—and then announced he would not repay the Treasury, as the current rules do not require him to do so.
In reconciling the two versions of the CAA Reform Act, Congress should use a broad definition of sexual harassment that does not utilize language measuring the extent to which unwelcome sexual advances must interfere with an individual’s work to be considered harassment. They should preserve the House bill’s clauses—rather than those of the Senate’s—regarding the Ethics Committee and protecting claimant’s identities, as well as the provision of legal counsel to all congressional staffers in addition to members.
Many of the areas in which the two bills converge, such as the replacement of the Office of Compliance with the newly established Office of Congressional Workplace Rights, claimant rights during pending procedures, confidentiality of proceedings, and extension of protection from employment discrimination to unpaid staffers and employees of the Library of Congress, are all strides of progress for workplace rights and approaches to sexual harassment that center on the survivor rather than on the institution. Both bills introduce a level of transparency with regard to past offenses that is much needed in Congress. However, neither bill includes a provision explicitly requiring Congress to disclose publicly the identity of elected officials who are perpetrators sexual harassment. This should be addressed in a conference of the bill. Congressional employees and the public deserve to know if their representative has perpetrated sexual harassment or assault.
Cover Photo: U.S. House Democrats wear black as they participate in a photo-op at the U.S. Capitol prior to President Donald Trump’s first State of the Union address January 30, 2018 in Washington, DC. House Democrats plan to show up in black when attending the State of the Union address this evening in support the #MeToo and #TimesUp movements. (Photo by Alex Wong/Getty Images)
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Tags: justice, Rights, sexual harassment, #MeToo, advocacy