Our national reckoning about sexual harassment has turned a spotlight on the self-protecting way Congress handles such claims against its own members or employees. The current system, hilariously named the Congressional Accountability Act, settles complaints under the cover of confidentiality. Representative Jackie Speier, Democrat of California, says that system protects the harasser, and she’s right. In essence, it pays out tax dollars to ensure the silence of the victims.
Since 1997, there have been some 264 secret settlements, with total payouts of some $17 million, though not all for sexual harassment; the act extends 13 labor, workplace, civil rights, and safety acts to the employees of Congress and its various agencies. All told, the law covers some 30,000 legislative-branch workers. However, interns and pages, often the most vulnerable to harassment, aren’t covered.
Still, the CAA edifice also creates considerable pressure to follow the law’s tortuous procedures. According to the website for the Office of Compliance, which administers the law, “The failure to follow these procedures or to meet established timelines may jeopardize any claims raised under the CAA.”
That process stipulates that a counseling period of 30 days must first be engaged in, followed by 30 days of mediation, both of which are aimed at settling the complaint informally. Only after complying with those two steps, and then waiting another 30 days, can someone pursue a complaint in court without possibly jeopardizing her legal rights.
The system also has strict deadlines. A complaint must be filed within 180 days of an incident of alleged harassment. We now know, however, that it often takes victims of sexual harassment considerable time to work through the shock and anger of such an experience and decide how to move forward. The current process, then, enshrines the sensibilities of a different era, before there was societal awareness of the extent of sexual misconduct or the way that victims react.
Speier and Senator Kirsten Gillibrand of New York have proposed some long overdue changes. Victims wouldn’t be forced to engage in counseling or mediation before filing a legal complaint. A new program would provide legal advice and representation to victims and anti-sexual-harassment training for members and staff. Members of Congress would themselves be responsible for paying settlements. Interns, pages, and fellows would be included. Nor would victims be required to agree to confidentiality simply to initiate a complaint.
Indeed, in an era when the public increasingly realizes the extent of sexual harassment and increasingly assigns the fault where it belongs — with the perpetrator — confidentiality is neither necessary nor desirable. Going forward, disclosure should be the norm.
One lingering issue is how to handle incidents that were previously settled confidentially. There, the operative principle should be to err on the side of disclosure while protecting the privacy rights of the complainant. That means stipulating that past settlements will become public if the victim of the harassment agrees. A member of Congress should not enjoy a similar right to prevent the disclosure of a settlement.
A less cumbersome process with more transparency would likely serve as a deterrent to some sexual misconduct. And if and when it doesn’t, voters would at least have the information they need to make an informed decision about misbehaving congressmen.