Ethics and Democracy

Congress Must Fix How It Addresses Sexual Harassment and Assault on Capitol Hill


The Me Too movement has revealed the pervasiveness of sexual harassment and assault across broad swathes of American life. Women in journalism, entertainment, academia, politics, and more have come forward to share their stories—stories that have highlighted the challenges that survivors of sexual harassment and assault face in seeking justice. These challenges are acutely present on Capitol Hill, where the power imbalances inherent in the structure of Congressional offices, as well as the reporting process for sexual harassment and assault claims, make it near-impossible for perpetrators to be held accountable—or for survivors to report instances of discrimination without facing severe personal and professional consequences.

The process for reporting sexual harassment and assault in Congress is backwards: it protects perpetrators at survivors’ expense. If someone initiates the official process for filing a complaint the day after they are assaulted and moves through the process as quickly as possible, it will still take months before their complaint can be heard in an administrative hearing or by a federal court. During that time, the survivor must undergo mandatory counseling, which may require survivors to relive their assault instead of allowing them to engage with it on their own terms; and go through a one-month mediation period with the perpetrator, which incorrectly frames the issue as a “conflict” to be resolved, instead of an act of discrimination or violence committed by one person against another. They also have to incur considerable personal expense to hire a lawyer—even though the perpetrator is provided one at the taxpayers’ expense.

Sexual harassment and assault are abuses of power for which there is virtually no accountability. Public officials are entrusted by their constituents with a great deal of power, with the expectation that they use it in the best interests of their constituents. When public officials act in a way that is a demonstrable abuse of that power, and in a way that is inconsistent with their constituents’ values, they should be held accountable. In the current system for handling complaints about sexual harassment and assault on Capitol Hill, accountability is nearly impossible.

Members of Congress must be held accountable for abusing their power. We are immensely proud of the work Indivisible groups across the country have done to demand that their MoCs live (and vote) their values. However, constituent power alone cannot fix a problem that is rooted in a broken system that protects perpetrators—their efforts must be backed up by institutional practices on the Hill that support survivors. Until Members of Congress implement reforms that center justice, safety, and support for survivors, they are enabling a destructive culture of sexual harassment and assault on Capitol Hill.

WHAT IS THE CURRENT PROCESS FOR OFFICIAL COMPLAINTS?

After Buzzfeed reported on the harassment and assault accusation against former Rep. John Conyers, Matt Fuller and Amanda Terkel of HuffPost published a story explaining the challenges survivors of sexual assault on Capitol Hill face in seeking justice. Below is their summary of each step in the official complaint process [with emphasis added]:

  • To make an official complaint, a sexual harassment victim has to call the Office of Compliance [the office responsible for handling reports of sexual harassment and assault] to get a password to fill out an online form. This is an office that, based on a survey by Roll Call in mid-2016, many women working on the Hill didn’t know existed. And victims must register a complaint within a 180 days of when the harassment occurred.
  • Once formal complaints are made, those filing them are forced to get professional counseling for up to 30 days.
  • After counseling, they have 15 days to decide whether they’ll drop the issue or move forward.
  • Those moving forward must sign a temporary confidentiality agreement and begin 30 days of mediation.
  • The accused is given a lawyer at taxpayer expense, the [survivor] has to pay for one.
  • If agreements aren’t reached during mediation, there’s another 30-day “cooling-off period” before complainants can request an administrative hearing or go to federal court.
  • If agreements are reached, the complainants will likely have to sign a non-disclosure agreement in order to receive money from a hush fund at taxpayer expense.

And remember: interns or those working on the Hill through a fellowship are on their own. This process isn’t open to them [and, under federal anti-discrimination law, interns and fellows don’t have any of these protections in the workplace].”

Anti-sexual harassment “training” isn’t enough. In response to the flood of sexual harassment and assault allegations sweeping the country, the House and Senate have instituted new, mandatory anti-harassment and anti-discrimination training for all MoCs and their staff. However, as a former staffer explains in the article by Fuller and Terkel, the current training course used by the Hill is insufficient and “can end up doing more harm than good” by muddying the waters about what constitutes sexual harassment.

Each step of this process is rife with choices that protect perpetrators and harm survivors. It prioritizes maintaining secrecy and protecting the reputation of perpetrators over justice and safety for the people they harass or assault. Too often, it ends with women (and men) who speak up being shut out of politics, while offenders are allowed to continue their careers—without the public ever knowing about their actions.

When survivors are forced to leave the Hill, workplace sexual harassment becomes even more difficult to address and prevent. Four in ten women surveyed by the CQ Roll Call in 2017 said that they believe sexual harassment is a problem on Capitol Hill, and one in six say they personally have been victimized. Women are also underrepresented among the top staff positions in House and Senate offices—positions that take years of work and relationship-building to attain. There is a clear relationship between hiring and promoting women, and reducing sexual harassment at work. If women are driven off of Capitol Hill by harassment before they can ascend the ranks, this vicious cycle will continue.

HOW COULD CONGRESS BEGIN TO FIX THESE PROBLEMS?

The Senate, led by Senators Roy Blunt and Amy Klobuchar, has introduced a bill to reform the current process—but it is inadequate in many ways. This bill bars survivors from receiving legal advice from a designated “confidential advisor” once they file their complaint. It provides the Ethics Committee in the relevant chamber with documents that could identify the survivor, which opens the door to re-victimization and/or retaliation. It also does not identify which offices (or MoCs) have used public funds for settlements related to discrimination (including harassment)—a key transparency reform that should be included in any overhaul of this process.

The Congressional Harassment Reform Act (S. 2236), introduced by Sen. Kirsten Gillibrand, would be a better vehicle for beginning to overhaul the process for filing official complaints. It has 32 cosponsors in the Senate, including ten Republicans. You can read the bill here. (Politico also has a write up of the bill here.)

S. 2236 would make some key improvements to the current process. It builds on two bills (H.R. 4924 and H. Res. 724) that already passed the House in February 2018. Like those bills, it covers all forms of harassment—not just sexual harassment. S. 2236 would require lawmakers to reimburse the Treasury for settlements of harassment claims so that taxpayers no longer foot the bill for secret settlements. Unlike the bill the Senate is considering now, it would require offices to publish these settlements twice per year (unless the survivor opts for privacy) with the name of the member’s office involved, the violations, the amount of the settlement and whether the lawmaker has paid. The bill would also provide survivors with “immediate access” to an advocate who can assist the survivor with understanding their rights and the reporting procedure—which the Blunt-Klobuchar bill does not allow.

However, even this bill would leave some gaps in the reporting process. Like the new bill, it allows the Ethics Committee to determine that MoCs do not have to reimburse the Treasury if they determine the MoC wasn’t responsible for the alleged act. It only gives survivors 30 days to file a civil suit against the perpetrator after they file a formal complaint (a coalition of concerned organizations has endorsed extending this window to 90 days). And it heaps new responsibility on the General Counsel of the Office of Compliance without providing any additional funding for those responsibilities, while taking investigatory power away from the Office of Congressional Ethics.

Despite these gaps, the reforms in S. 2236 would begin to transform the culture of accountability on Capitol Hill. Their intention is to shift responsibility for addressing sexual harassment and assault off of survivors and onto the Congressional offices where discrimination is taking place. It would ensure survivors have representation and support where they currently have none, and that perpetrators are held accountable when they currently are not. It would allow survivors to speak out, if they choose, when they currently cannot. It would extend protections to interns, fellows, and pages, who are under immense pressure to generate as much goodwill from their superiors as possible—a power dynamic that enables predators to take advantage of them.

Congress should act to protect all survivors of sexual harassment and assault. However, in the absence of federal action to ensure survivors can safely seek justice within all institutions in American life, they must at least act to guarantee support and protection for survivors in their own office buildings. The Congressional Harassment Reform Act is a critical first step in reforming the institutional processes that put perpetrators above survivors and cause talented women to leave public service.