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Legislative Update: Congress Punts on Full Transparency for Sexual Harassment Claims

By December 21, 2018Blog, News and Events
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You know it’s a lame duck Congress when action on bills that members have been trying to avoid but have no excuse left not to deal with finally get passed.  Then they hold a press conference and pat themselves on the back. I admit such cynicism might not be welcome during the Christmas season, so let’s give some credit to a Congress that managed to enact something so bipartisan that no roll call vote was necessary.  The departing 115thCongress can now breathe a sigh of relief for having dealt with updating their procedures for handling workplace sexual harassment issues on their own turf in the #MeToo era.

Earlier this year, Concerned Women for America mailed thousands of petitions to Capitol Hill, asking leaders to step up and hold members accountable who had settled harassment claims in secret using a federal “hush fund” paid for by the American taxpayer. Constituents were kept in the dark about such claims, and cases were settled behind closed doors.  The fact that elected officials and senior staffers were engaging in such conduct — with at least $15 million paid out over 20 years — rightfully raised alarm bells and discredited prevailing congressional accountability rules as outdated and ineffective.

For example, the Congressional Accountability Act of 1995 imposed an artificial cooling off period requiring a victim (usually subordinate congressional staffer) to wait 30 days from the time of reporting conduct before deciding to press a case.  This requirement reinforced the all-too-common problem of victims being held to a higher standard of believability than perpetrators.  The compromise bill scraps this cooling off requirement, so due process can begin earlier for victims of workplace harassment.  In addition, the compromise requires that a member of Congress reimburse the government for any settlement using the congressional hush fund and requires that an annual report be made public identifying the amounts disbursed from the fund, the types of harassment claims, and the employing offices involved.

Steps in the right direction certainly, but by no means sufficient to address the scandals that have plagued an institution of public trust and demand a full accounting.  For one, nothing in the bill requires reimbursement to the Treasury of the $15-plus million in taxpayer money spent to settle previous claims.  Nothing is done to bring transparency to previous cases, including who committed the harassment and how much money was involved.  Only some light will shine on future cases because nothing in the bill requires naming the perpetrator, only the “employing office.”  House and Senate committees could ask for more transparency in the rules they write to implement the bill, but only if they have the will power to do so.   Finally, nothing in the bill speaks to nondisclosure agreements as at least one other proposal has.  All too often, such agreements become the means by which aggressive defense attorneys shield perpetrators and leave victims with no leverage to seek justice.

In bidding farewell to the 115thCongress, it is fair to say that members managed to make an eleventh-hour compromise to get their house more in order in the #MeToo era. It is now incumbent on a new Congress to build on this measured progress to ensure full transparency and accountability for past indiscretions as well as future cases of sexual harassment in its workplace.  Full disclosure just might be the greatest deterrent.