As women in Hollywood organize to tackle harassment and discrimination, the U.S. Congress is working on new protections for its workforce. On January 18, a bipartisan group of lawmakers introduced legislation that aims to address complainants’ resources and rights, dispute resolution and reporting, and settlement transparency. With the new bill expected to move quickly, and others like the ME TOO Congress Act having been introduced, we want to make sure that whatever is passed in the end contains broad, meaningful changes that will not only benefit Congress but set an example for the entire nation. People For the American Way is among more than 100 organizations detailing specific recommendations for addressing sexual harassment and a full range of workplace discrimination complaints, including those based on sex (including sexual orientation, gender identity, pregnancy, and childbirth), race, disability, age, ethnicity/national origin, color, religion, marital status, and parental status. You can download our January 19 letter, with signers, here.

Dear Speaker Ryan, Leader Pelosi, Chairman Harper, and Ranking Member Brady:

As organizations committed to advancing and protecting civil and human rights, equality, access to justice, and transparency, we write to express our appreciation for your efforts to address the problem of sexual harassment in Congress, including holding hearings last fall and requiring all House members and their staff to participate in mandatory anti-harassment and anti-discrimination training.

We hope that these steps are only the first of many and urge you, as you move forward, to ensure that any reforms of the existing system look beyond the current crisis, and seek to implement broad, meaningful changes that will benefit the entire legislative workforce and set an example for the nation. Specifically, we encourage you to move quickly to consider H.R. 4396, the ME TOO Congress Act, currently before the House Administration Committee, or other similar legislation, and to ensure that any final legislation includes the recommendations below to prevent and remedy workplace harassment and discrimination and ensure a safe and fair workplace culture in Congress.

Moreover, while this current moment is focused on sexual harassment, no one employed by the legislative branch should be subjected to harassment on the basis of any protected characteristic—and Congress must ensure that any reforms also apply to claims of workplace discrimination based on sex (including sexual orientation, gender identity, pregnancy and childbirth), race, disability, age, ethnicity/national origin, color, religion, marital status, and status as a parent.

Background

Workplace harassment, including sexual harassment, is a pervasive problem in the United States. Despite the longstanding prohibitions against sexual harassment and sexual assault, these behaviors continue to infect our workplaces and deny workers equal employment opportunities, safety, and dignity. For too long, victims of harassment and assault have lived in silence because of fear of jeopardizing their safety, jobs, financial security, and career prospects, while too often perpetrators—often powerful men—have escaped accountability for their actions, enabled by many who have turned a blind eye to these transgressions. As recent events have demonstrated, no workplace is immune from harassment, whether in the entertainment industry, restaurant kitchens, or the halls of Congress.

In 2017, it was reported that four in 10 women on congressional staff said that sexual harassment is a problem on Capitol Hill, and a whopping “one in six said they personally had been victimized.” But in contrast to federal agencies and many private workplaces, the legislative branch workforce lacks a comprehensive system to enable employees and other staff who have been harassed to report safely; to respond to complaints; to assess culpability; and to impose appropriate penalties based on fair and transparent principles that are consistently applied. Moreover, the avenues for protection and redress that do currently exist through the under-resourced Office of Compliance are largely unknown to many employees, place many obstacles in the way of those bringing complaints of harassment, and do not serve as a deterrent to offenders.

Recommendations

1. Improve the Reporting and Dispute Resolution Process and Expand Coverage and Protections.

The Congressional Accountability Act (CAA) must be amended to ensure the legislative branch workforce enjoys robust protection from and appropriate remedies for harassment and other forms of discrimination. Any reforms should ensure that:

• Protections against harassment and employment discrimination are extended to those not currently covered, including interns, fellows, detailees, and pages;
• Participation in mediation and counseling is optional and not a prerequisite to initiating a complaint or lawsuit;
• Nondisclosure agreements are neither a prerequisite to initiating a complaint nor a mandatory condition of settlement;
• No 30-day “cooling off” period is imposed before a complainant can file an administrative complaint with the Office of Compliance or file a lawsuit in U.S. District Court;
• Harassment and discrimination complainants are given meaningful advice and support through, for example, a legal counsel program;
• The Office of Compliance is provided new investigative and subpoena authorities in order to evaluate complaints in a prompt and thorough manner;
• Whistleblower protections are extended to all those covered by the CAA to include the rights and remedies enjoyed by most federal employees under the Whistleblower Protection Enhancement Act. Whistleblower protections should also provide the legislative workforce with access to a jury to challenge retaliation, rights against retaliatory investigations and prosecutions, and accountability for retaliators;
• If a retaliation claim should later arise, that retaliation claim relates back to the initial filing, meaning that complainants are not required to file a second formal complaint; and
• All notice-posting requirements regarding federal anti-discrimination, anti-harassment, and other workplace rights laws covered by the CAA are made applicable to the legislative branch, so that employing offices and staff are informed of their rights.

2. Ensure Greater Accountability and Increase Transparency.

Elected officials should be held to the highest ethical and professional standards and, as stewards of public trust, must be held accountable. Thus, it is critical that:

• Where taxpayer funds are used to settle a claim that a member of Congress has unlawfully harassed or discriminated against a legislative staff member, the member of Congress should personally reimburse the Treasury for funds expended on his/her behalf as expeditiously as possible; and
• Use of office funds to pay settlement amounts should be disallowed, and the number of settlements, settlement amounts, and the employing office should periodically be made public in a report that is transparent and accessible, while balancing the privacy and confidentiality of the complainants.

Moreover, because workplace harassment and discrimination encompass a range of actions, the Office of Compliance and leaders in Congress should develop guidelines that identify harassing and discriminatory conduct, the proportionate corrective actions and sanctions that may be assessed when violations are substantiated, and the process for doing so. These guidelines should be made available to the entire legislative workforce and the general public and should be consistently applied, thereby establishing expectations for behavior and promoting accountability for members of Congress and legislative branch staff.

3. Implement Comprehensive Prevention Practices.

Preventing workplace harassment and discrimination must be a top priority and goal of every member of Congress and leader in the legislative workforce. Those prevention practices should include the following:

• Every office should be required to have strong anti-discrimination and anti-harassment policies in place that help employees understand what prohibited conduct looks like; explain how to report harassment or discrimination within the office or to the Office of Compliance and provide multiple avenues for reporting; outline the process for investigating and responding to complaints; assure confidentiality; detail the consequences for harassment, discrimination and retaliation; and provide internal and external resources for support, including information about the role of the Office of Compliance.
• While codification of the annual mandatory sexual harassment training should be included in any CAA reform package, the training itself must do more than merely seek to ensure compliance with the law, and instead should help instill a culture of respect within the congressional workplace; enable members of the legislative workforce to understand their rights and responsibilities; empower them to intervene in a situation or to report safely without retaliation; and most importantly, set out standards that will ensure that members of Congress and their staff do not engage in conduct that leads to a workplace culture that increases the likelihood of unlawful behavior.
• The creation and implementation of a regular, anonymous climate survey of the legislative workforce will help offices understand the true nature and scope of harassment and discrimination in Congress and any failures in the policies and procedures designed to prevent and address harassment and discrimination.

Finally, in order to ensure the changes outlined in this letter can achieve the stated goals of preventing and remedying harassment and discrimination in the legislative workforce, the Office of Compliance must have the additional resources, authorities, and access to staff and members of Congress needed to do its job effectively.

Conclusion

The above recommendations reflect some of the changes that are needed to the legislative workforce’s reporting and dispute resolution process and are not exhaustive. Our organizations have a wealth of expertise and stand ready to assist you in any way that we can and look forward to working with you on this critical issue.

For questions or to contact the coalition, please contact Vania Leveille at the American Civil Liberties Union ([email protected]), Joi Chaney at Equal Pay Today ([email protected]), June Zeitlin at The Leadership Conference on Civil and Human Rights ([email protected]), Maya Raghu at the National Women’s Law Center ([email protected]), and Remington A. Gregg at Public Citizen ([email protected]).