Why doesn’t Congress play by the same rules when it comes to sexual harassment?

Imagine if people accused of sexual harassment got to choose whether they would face consequences for their misconduct, and that victims would be prohibited from discussing their experiences with anyone outside their immediate family. Unfortunately, to the detriment of countless victims, this has been the precise system for addressing allegations of sexual harassment in Congress for the past 20 years.

As an employment lawyer who has represented victims of harassment, including victims on Capitol Hill, I have seen how these policies and procedures — which Congress established to police itself when it comes to workplace harassment — are unsurprisingly largely self-serving and do little to empower victims.

Lawmakers who have been accused of misconduct have the option — one left entirely to them — to stay in their elected positions. While some have resigned, there is no law requiring them to do so. In private companies and federal agencies, accused harassers can be disciplined or fired at the employer’s discretion, but in the legislative branch, there is no effective mechanism to terminate or discipline members of Congress charged with misconduct. The current process for removing or sanctioning members of Congress lacks transparency and rarely results in the kind of remedial action we see occur in the private and federal sectors.

{mosads}While members of Congress are often shielded from the repercussions of their actions, victims of sexual misconduct in the workplace face procedural hurdles as they try to resolve their complaints. Victims of sexual harassment in the legislative branch have only 180 days to take action against their powerful harassers. If they choose to pursue a complaint, they are required to request and participate in a 30-day counseling period, engage in mediation, and then wait another 30 days before they ever have an opportunity to file an administrative complaint with the Office of Compliance or for their complaint to be heard in a federal district court.

For individuals raising claims against congressional leaders, 180 days is simply not enough time to process the harassment they have been subjected to, decide whether or not to file a complaint, and weigh the immediate and permanent repercussions it could have on their personal and professional lives. As a result, complaints often go unfiled, victims are rendered voiceless, and any legal recourse they might have had is quickly extinguished for good.

These problems — the disparity in the treatment of those accused and the onus and silence imposed on victims — are largely rooted in a broken system for filing complaints that only applies to employees of the legislative branch. In 1995, the Congressional Accountability Act (CAA) made Title VII of the Civil Rights Act of 1964 applicable to congressional employees, protecting them from harassment and discrimination in the workplace. In establishing the Congressional Accountability Act, Congress chose not to follow practices used commonly in the private and federal sectors, where, for example, mediation is not mandatory and there is no required waiting period imposed before filing a lawsuit. Instead, members of Congress — the ones who would find themselves the subject of complaints filed under the CAA — created an entirely new process that makes it difficult for individuals to pursue complaints in court, protects the accused, and enables the use of taxpayer dollars to quietly settle claims.

Despite its long-term repercussions for sexual harassment victims in Congress, the Congressional Accountability Act has come under scrutiny only in recent years. While a need for transparency, uniformity and accountability has driven calls for reform today, we must do more than just articulate these concepts for meaningful change to occur.

Training is a good start, but we must do more to empower victims of sexual harassment and misconduct to come forward, and support them once they do. They should not be made to feel that the system leans in favor of the accused. Those in the Office of Compliance created by Congress, and its board of directors, who are responsible for adjudicating complaints under the CAA and recommending changes to the CAA to Congress, are appointed by House and Senate members. The staffers are, in turn, are appointed by the board. The Office of Compliance therefore cannot be the objective body it is purported to be. We need a truly independent administrative body, like the Equal Employment Opportunity Commission, in Congress.

Modifications to the CAA are also essential for change. Victims who choose to file complaints of sexual harassment or misconduct must be able to have their cases addressed as meaningfully and expeditiously as possible. And while their confidentiality should be protected if they so desire, it should not be required of them. Ultimately, both victims and the accused can benefit from having a fair system to objectively process complaints — and that cannot be done by the CAA as it currently reads. 

We must change the system to make sure there is accountability in Congress, and that victims’ voices are heard — just like in any other workplace.

Rosalind Herendeen is a civil rights attorney specializing in employment law and a founding partner at Wilkenfeld, Herendeen & Atkinson.