#MeToo Reaches Members of Congress: New Bills Demand Accountability

AF3IRM National Chairperson Ivy Quicho, March organizer Brenda Gutierrez and #MeToo campaign founder Tarana Burke seen at the #MeToo Survivors March & Rally on November 12, 2017, in Hollywood, California. (Photo: Chelsea Guglielmino / FilmMagic)AF3IRM National Chairperson Ivy Quicho, March organizer Brenda Gutierrez and #MeToo campaign founder Tarana Burke seen at the #MeToo Survivors March & Rally on November 12, 2017, in Hollywood, California. (Photo: Chelsea Guglielmino / FilmMagic)

A decade ago, Harlem activist Tarana Burke began the #MeToo campaign. Its mission was to “unify those who’ve been victimized by sexual violence.” However, the movement confronting sexual assault and harassment only gained national traction recently.

President Trump’s boasts about his sexual assault triggered the Women’s March — the largest demonstration in US history — the day after his inauguration. The sheer numbers indicated women’s fury against sexual harassment and abuse. And the movement didn’t disperse. Instead, it grew on social media and simmered for months to levels that posed a threat and challenge to the sexual status quo in the workplace.

Sexual allegations so far have led to resignations by seven members of Congress. Furthermore, in December, nearly 60 women in Congress demanded a House Oversight Committee investigation into the sexual assault accusations against the president.

Another shocker to the public was the revelation that tax dollars have been used secretly for at least the last 20 years to silence victims. That came to light when Rep. Blake Farenthold’s former communications director filed a complaint against him in district court, thus putting it on public record where the media instantly picked it up. A panicked Farenthold got her to drop the case by having the Office of Compliance (OOC) issue her $84,000 from his office expenses.

The public suddenly learned members’ indiscretions were shielded because accusers must file complaints against a member’s office, not them. Funds were deducted from the office’s annual budget, provided by the US Treasury. So secret are OOC payoffs that investigative reporters apparently assumed culprits were staffers, not members, and that settlements were about discrimination for age, gender, religion and disabilities, as well as disputes over wages, health or safety. The public backlash was so intense that the Texas millionaire quickly vowed to repay the Treasury.

However, working women everywhere — in the private or public sector — usually face retaliation (firing, blacklisting) if they decide to report incidents.

Women Face Barriers When Coming Forward

Women — in Washington, DC, and elsewhere — are coming forward to share their stories, and according to the Boston Globe, “an estimated 87 percent of women between the ages of 18 and 25 say they have experienced some form of harassment.”

Women now make up 47 percent of the workforce. Despite protections against harassment and abuse in the workplace guaranteed by Title VII of the 1964 Civil Rights Act, training programs don’t seem to be effective, or else Equal Employment Opportunity Commission (EEOC) complaints wouldn’t exist.

The EEOC defines sexual harassment as …

unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature that:

  • explicitly or implicitly are a condition of employment, or

  • are used to make a hiring or other employment decision, or

  • unreasonably interfere with a person’s performance or create an intimidating, hostile, or offensive work environment. Sexual harassment can be verbal conduct, physical conduct, or both and it generally must be severe and pervasive. There are basically two types of gender harassment recognized by the courts — quid pro quo and hostile work environment.

Though the EEOC offers an avenue for complaints, current procedures for filing are considered by many to be deliberately designed to be daunting and demoralizing. The hoops women must jump through also alert the perpetrator by mandating filing within 180 days of the incident, and trigger the following:

• Thirty days of counseling

• Thirty days of sworn secrecy in mediation

• Thirty days to apply for an administrative hearing if the filer remains unsatisfied

• Potentially signing a non-disclosure agreement for a settlement

Counseling and mediation apparently play on the filer’s uncertainty about being believed. Guilt may also be used to point out that even if allegations are true, a complaint will harm the accused’s family, his reputation and jeopardize his future.

Such a process explains why few women — low- or high-level — file EEOC complaints. Data for 2016 shows that 160,000 contacts involved inquiries about harassment, after which 91,503 filed complaints. Sexual harassment and abuse complaints numbered 6,758, but only 698 won settlements. Some payouts were paltry. Three filers for sex discrimination had to split a $56,000 award.

The ME TOO Bills for Congress Itself

The EEOC’s shortcomings may well be addressed by what’s currently happening to one workplace that has no EEOC protections against harassment and abuse: the 30,000 who work on Capitol Hill in the three branches of government and the Library of Congress. That shocking void pertinent to all women was supposed to be filled back in 1995 with the Congressional Accounting Act, following the Senate’s forced resignation of Oregon’s Sen. Bob Packwood.

Congress writing a law for members, of course, was designed to protect their image and privilege against staff complaints by that Office of Compliance. It used an EEOC-like system for complaint procedures, but never specifically mentioned “sexual harassment.” As Rep. Jackie Speier said in November: “Unfortunately, due to the system that Congress created to protect itself from being exposed, there has been no accountability…. It’s now clear that this misguided attempt to protect the institution is instead harming it and leaving victims in its wake.”

With the departures of Farenthold and Sen. Al Franken and others, a flurry of bipartisan bills have been hoppered to close the loopholes deliberately created by that 1995 bill impacting Congress. The first six of those bills mandated a no-exemption harassment training session, with some scratching the online system for a live class, and enforcement by demonstrating mastery before being given a certificate. Two bills were instantly passed without deliberation via voice votes: Amy Klobuchar‘s in the Senate and Barbara Comstock‘s in the House.

Then came the public fury over the Farenthold payoff with tax dollars in settlements. Other bills were drafted in the last 60 days, mandating members either reimburse the US Treasury for those settlements, or the sum would be deducted from their annuities and Social Security payments. Two Republican bills — H.R. 4494, H.R. 4503 — contained poison pills guaranteeing their deaths by demanding previous reimbursements back to 1995.

While attempting to pacify public rage about having to pay for member misconduct, at least one may pass that could also fix the flaws in the EEOC’s complaint system. The Ending Secrecy About Workplace Sexual Harassment Act, a bill introduced in December by Rep. Carolyn Maloney (D-New York), would require annual reporting by the nation’s employers on a wide range of specific harassment and discrimination violations.

The best and most complete legislation is a bipartisan joint pair of bills — ME TOO Congress Act — intended to be merged in conference. Jackie Speier’s H.R. 4396 will address the significant shortcomings of that 1995 law, and Kirsten Gillibrand’s S. 2159 chiefly spells out the mandated training programs.

Not only do they include the EEOC’s specifics on what constitutes harassment and abuse, but they address the inequities of deliberately favoring the accused. For one thing, they offer free counsel to accusers. The host of other changes in the bills include:

• Waiving the EEOC’s 30 days of mandatory counseling/mediation

• Prohibiting non-disclosure agreements for settlements both past and present

• Separation of the parties if accuser requests mediation

• Outlawing retaliation (firing, blacklisting) of accusers

• Providing remote work sites or paid leave for accusers during the processing periods

• Offering anonymity/protection to witnesses providing evidence

• Changing the name of the Office of Compliance to the Office of Congressional Workplace Rights

Some of the shortcomings certainly will be corrected by amendments or in conference if the legislation passes both houses. As with the 1995 bill, the ME TOO Congress Act still lacks strong enforcement either from an independent or external source.

Another criticism is that a one-hour training session cannot possibly cover providing information, role-playing, experts’ views, bystander intervention, perpetrator consequences, retaliation, etc., nor is any penalty specified for absenteeism from the session or failure to demonstrate knowledge of what constitutes harassment and abuse. No protection is given accusers from threats by the accused’s attorneys, family or supporters.

And hovering over this current Congressional challenge is the major question of how members can police themselves. Yet the #MeToo movement has given men in Congress a major jolt that may spread nationally. Congress should lead in refusing to accept that harassment in the workplace is normal behavior, as Speier noted on the House floor a few weeks ago:

The outcry for accountability that we are hearing from all corners of the country must be heeded…. When do we simply believe the victims and provide them a fair and safe process to report and get justice?… We don’t like to come down on our friends and colleagues. I get that. But don’t we have a moral responsibility to victims, to society at large?… I urge my colleagues … to join me in taking Congress from a cruel and disgusting joke to a leader in workplace fairness.