Red Tape Discourages Harassment Claims on Capitol Hill

Current system accused of silencing victims

By Allen Smith, J.D. Dec 28, 2017
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Mandatory counseling, mediation and a "cooling-off period" often discourage Capitol Hill staffers on shoestring budgets from suing senators, representatives and co-workers for harassment. Rep. Jackie Speier, D-Calif., and Sen. Kirsten Gillibrand, D-N.Y., are trying to change that.

In 1995, Congress created the Office of Compliance (OOC) "to protect itself from being exposed, and it has been remarkably successful," Speier said in a Nov. 15 statement. "Zero tolerance is meaningless unless it is backed up with enforcement and accountability." She seeks more of both through her Me Too Congress Act, which Gillibrand introduced in the Senate.

On Dec. 14, Gillibrand also unveiled the Congressional Harassment Reform Act, which has bipartisan support. The bills would amend the Congressional Accountability Act (CAA), which outlines the OOC's powers.

Labyrinthine Process

A Hill staffer alleging harassment must jump through many hoops before suing.

First, the employee must go through an intake counseling process with the OOC that can last 30 days. The worker then must participate in 30 days of mediation, which can be extended, according to a Speier spokeswoman.

Next, the employee must wait out a 30-day "cooling-off period" before he or she can file a lawsuit.

All parties are bound by an agreement to keep confidential all communications, statements and documents that are prepared for mediation.

The mediation sessions can't be discussed with anyone the employee knows, the spokeswoman told SHRM Online—not with a spouse, religious official, therapist or anyone else—a statement the OOC denies. "The CAA does not prohibit discussing with others the underlying harassment," according to the OOC.

Changing the confidentiality provisions may dissuade employees from reporting illegal conduct, said Susan Tsui Grundmann, executive director of the OOC, at a hearing before the Committee on House Administration Dec. 7.

Harassment victims on the Hill often want confidentiality because it shields them from the media frenzy when members of Congress have allegedly harassed employees, according to Gloria Lett, counsel, Office of House Employment Counsel, during the same hearing.

Under the Me Too Congress Act, confidentiality would not be a condition to mediate, and counseling and mediation would be optional instead of mandatory.  

Fear of Reprisal

Grundmann called on greater investigative and prosecutorial power for the OOC to investigate discrimination, leave, and wage and hour law claims, and to prosecute allegations of reprisal.

"Covered employees who have sought information from the office respecting their substantive rights under the CAA have expressed concern about their exposure in coming forward to bring a claim, as well as a reluctance and an inability to shoulder the entire litigation burden without the support of agency investigation or prosecution," she said. "Employees who have already brought their original dispute to the counseling and mediation processes of the office and then perceive a reprisal for that action may be more reluctant to use once again the very processes that led to the claimed reprisal."

'You Against Congress'

Speier's spokeswoman noted that the current system provides the House counsel for the accused, but leaves the victim unrepresented. Most victims are young staffers making so little money that hiring an attorney may not be a realistic choice. Meanwhile, the House counsel is grilling the victim in a hostile process, the spokeswoman said.

For the victim, it feels like "You against Congress, and you're not going to win this fight," so the victims feel pressured into settling. Then the government, not the accused member or staffer, pays the victim, so there's no accountability, the spokeswoman added.

Congressional representatives should have to reimburse the Treasury with personal funds, she said. Whistle-blower protections should be provided to victims as well. Congress operates in small, intimate offices. The threat of being blackballed out of careers is real, she said.

Training Already in Effect

The House of Representatives and the Senate have passed resolutions requiring harassment prevention training among members and staff.

"The House and Senate resolutions are in effect now," OOC Deputy Executive Director Paula Sumberg told SHRM Online. "We have provided in-person training to hundreds of congressional employees in the past several weeks as well as online modules for thousands of people."

[SHRM members-only HR Q&A: What are the different types of sexual harassment?]

Now it's time for the other changes to be made, Speier's spokeswoman said, expressing optimism at their chance of adoption.

"We're seeing a level of scrutiny to the system that we heretofore have not seen," said Brad Fitch, CEO and president of the Congressional Management Foundation in Washington, D.C. He cautioned, though, that "Congress has the tendency to slip back and focus on legislative activities as opposed to managerial activities."

Congressional Harassment Reform Act

"The current process for victims of harassment and discrimination in Congress lacks transparency and is difficult to navigate," according to Gillibrand in a release.

Her bill would:

  • Bring transparency and accountability to the current process by extending protections to interns and fellows.
  • Eliminate forced mediation.
  • End the current required secrecy by allowing victims to speak publicly about their cases.
  • Require members of Congress found personally liable for harassment to pay settlements out of their own pockets.
  • Improve systems to address harassment in Congress.

"Congress should never be above the law or play by their own set of rules," Gillibrand said. Many staffers quit their jobs because of harassment or miss out on promotions or raises. Harassment "can throw off the entire trajectory in their careers," she stated. "We must ensure that Congress handles complaints to create an environment where staffers can come forward if something happens to them without having to fear that it will ruin their careers. This bipartisan legislation would bring us much closer to that goal."

 

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