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Process for reporting sexual misconduct in Congress
From Ballotpedia
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In 1995, Congress passed the Congressional Accountability Act, which applied certain labor laws to Congressional offices and created a process for reporting and resolving claims of sexual misconduct and other forms of inappropriate workplace behavior. The law was passed following the resignation of Senator Bob Packwood (R-Ore.), who was accused of sexual harassment by multiple women at the U.S. Capitol.[1]
Process
Here is an outline of the process for reporting and resolving a sexual misconduct claim at the U.S. Capitol as of November 2017:[2][3]
- Reporting: An employee with a complaint (the accuser) has 180 days following the alleged incident to make a report to the Office of Compliance (OOC).
- Counseling: The accuser must go through a counseling process that normally lasts 30 days but can be reduced by the OOC at the request of the employee. An OOC counselor informs the accuser of how current laws apply to his or her complaint. Counseling is confidential unless waived by the accuser.
- Mediation: An employee has 15 days after counseling to choose to continue the process by going to mediation. According to Congresswoman Jackie Speier (D-Cal.), an employee must enter into a confidentiality agreement before going into mediation.[4][5] Mediation lasts 30 days and gives the accuser and the accused the opportunity to reach an informal solution to their dispute. The OOC appoints a professional mediator to preside over the sessions. The accuser's office of employment is notified of the complaint at this point.
- Waiting period: If no solution is reached through mediation, the accuser must wait at least 30 days (but no more than 90 days) to move forward with his or her complaint.
- Formal complaint or federal lawsuit: After the cooling-off period, the accuser can choose to either file a formal complaint with the OOC or pursue a civil action through the federal courts. If the accuser files a formal complaint, an administrative hearing will be convened to decide the case. The administrative hearing officer will render a decision on the complaint. The details of the dispute resolution process can only be made public if the decision is in the accuser's favor.[1]
- Appeals: The hearing officer's decision can be appealed to the board of directors of the OOC. If either party is not satisfied with the board's decision, he or she can appeal to the U.S. Court of Appeals for the Federal Circuit. If the accuser decides to pursue their complaint in federal court, the judicial appeals process applies.
- Settlement or award: If the complaint ends in an award or a settlement, the payment to the accuser comes from a U.S. Treasury fund. Between 1997 and 2014, the treasury paid $15.2 million in 235 awards and settlements to Capitol Hill employees for claims related to inappropriate workplace behavior, which were not necessarily sexual misconduct.[1] The chair of the House Administration Committee must approve payments.[6]
Statements on implementation
According to the OOC, the dispute resolution process has helped settle many claims and typically benefits all parties in a dispute.[1] OOC Deputy Executive Director Paula Sumberg said that all congressional staffers and members of Congress should know about the OOC, citing its Annual Notification of Rights and quarterly e-newsletters. Sumberg also said that the OOC's resolution process is faster than the processes used by other federal agencies.[7]
Criticism
Statements made by individuals criticizing the reporting and resolution process:
- President Donald Trump stated that he believes the names of lawmakers who have settled sexual harassment claims should be made public.[8]
- Congresswoman Jackie Speier (D-Cal.): "[The OOC] is constructed to protect the institution — and to impede the victim from getting justice... It encumbers the victim in ways that are indefensible. There’s no accountability whatsoever."[7]
- “Can you imagine a victim who’s been sexually harassed who attempts to file a complaint and then is told they’ve got to go through three months of biting their tongue and continuing to work in that kind of environment? You’ve just been sexually harassed and you’re told you have to be ‘counseled’ for 30 days. Are you kidding me?”[7]
- Unnamed former staffer to Rep. John Conyers (D-Mich.): "I don’t think any allegations should be buried...and that’s for anyone, not just for this particular office, because it doesn’t really allow other people to see who these individuals are. When you make private settlements, it doesn’t warn the next woman or the next person going into that situation."[5]
- Matthew Peterson, law clerk who helped represent complainants: “[The process] is a designed cover-up. You feel like they were betrayed by their government just for coming forward. It’s like being abused twice.”[5]
- Congressman Ron DeSantis (R-Fla.), who has introduced legislation to mandate public disclosure of sexual harassment settlements: "It's taxpayer dollars at issue; taxpayers have a right to know how their money is being spent...[I don't understand] why the taxpayer should ever be on the hook for private misconduct of a member...That should not be something the taxpayers are funding."[8]
- Congressman Jerrold Nadler (D-N.Y.): Settlements "should be [made] public going forward," but not retroactively. "You may very well have people who ... were innocent but who thought [they] better get a settlement than go through protracted litigation."[8]
- Senator Mazie Hirono (D-Hawaii): "Any settlements should be made public."[8]
- Congressman Scott Taylor (R-Va.): "There is no way that the taxpayer should be subsidizing predatory behavior. Period."[8]
- Jenny Beth Martin, co-founder and CEO of the Tea Party Patriots, a group calling for disclosure of lawmakers' names: "They've used our tax dollars to settle cases where they're being accused, at least, of violating laws they're enacting and expect others to live under."[8]
Criticisms of the dispute resolution process reported by media outlets:
BuzzFeed:[5]
- The 90-day period between the complaint being filed and the beginning of either a judicial or administrative process could potentially require the accuser to continue working in the same space as the accused for an extended period of time.
- Interns and fellows do not have access to the same reporting system as Capitol Hill staffers.
- The accuser must pay for legal representation while the office of the accused is represented by an internal counsel.
The Washington Post:[1]
- A lack of mandatory anti-harassment training makes it less likely that accusers are aware of the reporting process.[9]
- Mediation is required rather than optional. This is different from other sectors of the federal government.
Proposed solutions
Members of Congress, including some former members, have proposed or implemented policies to address the criticisms of the sexual misconduct reporting and resolution process:
- In November 2017, both chambers of Congress made anti-harassment training mandatory for members and staffers. The Senate did so through a resolution while House Speaker Paul Ryan (R-Wis.) announced the change for the House.
- On November 15, 2017, Congresswoman Jackie Speier (D-Cal.) and other members of Congress introduced the ME TOO Congress Act. The bill would make several changes to the dispute resolution process including waiving the 30-day counseling and mediation requirements before accusers can file formal complaints, creating an optional in-house counsel for accusers to use when bringing complaints, eliminating the requirement that accusers sign non-disclosure agreements, requiring members of Congress to pay the costs of settlements when they are the accused, and creating an online system to file complaints.[10]
- Former Congressman Christopher Shays (R-Conn.) said that the OOC should make settlements public knowledge. Shays was a member of Congress in 1995 and supported the creation of the OOC.[11]
- Congressman Ron DeSantis (R-Fla.) announced on November 22, 2017, that he was working on a bill to require that all sexual harassment settlements paid by the Office of Compliance be made public, as well as the details of the harassment allegations, though alleged victims' names would not be released. His proposal would also ban the use of taxpayer funds to settle sexual harassment claims against lawmakers in the future.[8]
- Judicial Watch, a conservative judicial and government watchdog group, has urged Congress to allow access to congressional workplace misconduct settlements through the Freedom of Information Act (FOIA), which does not currently apply to Congress.[8]
See also
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 Washington Post, "How Congress plays by different rules on sexual harassment and misconduct," October 27, 2017
- ↑ Office of Compliance, "Dispute Resolution Process - Filing a Claim," accessed November 21, 2017
- ↑ Office of Compliance, "Frequently asked questions about filing a claim with the OOC," accessed November 21, 2017
- ↑ The Washington Examiner, "Jackie Speier says Congress' sexual harassment reporting process enables abusers," November 19, 2017
- ↑ 5.0 5.1 5.2 5.3 Buzzfeed, "She Said A Powerful Congressman Harassed Her. Here’s Why You Didn’t Hear Her Story." November 21, 2017
- ↑ CNN, "Congress paid out $17 million in settlements. Here's why we know so little about that money.," November 16, 2017
- ↑ 7.0 7.1 7.2 Politico, "Capitol Hill’s sexual harassment policy ‘toothless,’ ‘a joke’," October 27, 2017
- ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 8.7 Politico, "Pressure mounts to unmask Hill harassers," November 22, 2017
- ↑ Both chambers of Congress announced plans in November 2017 to make sexual harassment training mandatory for members and staffers.
- ↑ NPR, "'Me Too' Legislation Aims To Combat Sexual Harassment In Congress," November 15, 2017
- ↑ Newsweek, "CONGRESS SEXUAL HARASSMENT SETTLEMENTS SHOULD BE MADE PUBLIC, SAYS EX-CONGRESSMAN WHO SPONSORED ORIGINAL LAW," November 17, 2017
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