It took the #MeToo movement, an explosion of resignations, and Brett Kavanaugh’s gut-wrenching confirmation hearing to reform sexual harassment policy in Congress.
The House and Senate — which had previously been at odds on how exactly to address the issue of harassment in the government body — overwhelmingly approved legislation last week after roughly a year of back-and-forth on the matter. President Donald Trump, who has been accused of sexual assault himself, is now expected to sign it.
The legislation reforms the Congressional Accountability Act of 1995 by significantly improving the process for congressional employees to report allegations of sexual harassment, holding lawmakers financially liable for harassment settlements and increasing transparency around any settlements that lawmakers pay out for possible allegations.
It had picked up strong momentum earlier this year, but its fate was more recently in doubt after it had stalled for months. The bill’s passage comes about a year after Congress was hit with a raft of sexual misconduct allegations that resulted in the resignation of multiple members, both Democrats and Republicans, including Reps. Blake Farenthold, John Conyers, and Trent Franks and Sen. Al Franken. And it marks an important step toward Congress acknowledging its problems with harassment and the power imbalance that exists between staffers and lawmakers.
But it’s really just the beginning, advocates and lawmakers note.
“The agreement reflects the first set of comprehensive reforms that have been made to the Congressional Accountability Act since 1995,” House leaders including chief bill sponsor Rep. Jackie Speier (D-CA), who has made this one of her core issues, said in a statement. “We believe this is a strong step towards creating a new standard in Congress that will set a positive example in our nation, but there is still more work to be done.”
While the bill makes important inroads on a number of Congress’s longstanding issues with harassment, it still has much further to go.
What the bill does — and doesn’t do
The final version of the legislation is a byproduct of months of negotiations between the House and the Senate, which strongly disagreed on how to handle a series of provisions that would further bolster protections for victims. While the House was eventually able to secure some compromises, the ultimate legislation watered down key tenets including a guarantee of employer-backed legal counsel for all victims.
Here are the major provisions of the final bill, dubbed the Congressional Accountability Act of 1995 Reform Act, as passed by both chambers:
- The bill eliminates the “cooling off” period, and a broader waiting period of roughly three months during which time a victim would have to undergo counseling and mediation in order to formally file a lawsuit or administrative complaint. The soon-to-be law does away with all these delays and makes counseling and mediation optional if people are interested in participating in it.
- The bill requires lawmakers to be personally financially liable if they pay out settlements for harassment or retaliation. This is a major change spurred by the sexual harassment scandals last year that revealed that lawmakers could actually use taxpayer money to cover their settlements. Texas Rep. Blake Farenthold had used $84,000 in taxpayer funds in order to settle a sexual harassment allegation, for example. A House report found that approximately $300,000 in taxpayer funds had been used by 13 members to pay for settlements since 2003. The legislation would ensure that lawmakers cover these costs, and would even go so far as to garnish their wages if they don’t pony up the funds within 90 days after an agreement is reached.
- The bill adds protections for interns and fellows, who weren’t included in the 1995 version of the law and were among some of the most vulnerable staffers on the Hill as a result.
- The bill requires an annual report that details any settlements that have been made in the House or the Senate related to harassment and retaliation. The report will name the member’s office and whether the member was involved, the type of violation, and the amount of the settlement.
Even though these provisions didn’t cover everything that advocates pushed for, they do offer a major update to a law that was originally designed not so much to help victims but to protect harassers.
“It’s not everything we wanted, but it’s something concrete,” an aide for Rep. Speier’s office told me, adding that Speier sees it as “80 percent there.” The fact that this bill has garnered so much momentum is a major credit to the sustained #MeToo movement and a shifting office culture on the issue, the aide said.
In 2014, Speier introduced a much narrower bill on harassment that would require House members and staff to participate in trainings on the subject. At the time, the legislation didn’t even make it through committee.
The final bill does fall short in many ways, however — with the Senate ultimately pushing to strip out several tenets that would have done even more to insulate victims. These provisions were in the original bill that the House passed in February, but they were cut out of the final compromise.
What the bill doesn’t include:
- The bill does not hold lawmakers financially liable for settlements related to discrimination. This means they would not have to personally pay if they were accused of discriminating against a staffer for being pregnant, for example. Advocates say that the lines between discrimination and harassment can often be blurry and note that any law holding members accountable should tackle both.
- The bill does not provide victims with legal counsel. They will have access to government attorneys who could provide advice, but they won’t be guaranteed representation — something that staffers in the House already have access to because the lower chamber approved its own policies on the matter. This is a big one since members would have Congress-provided counsel, while staffers would be forced to scramble and hire their own.
- The bill does not include an independent investigation at the start of the review process. As was evident during Supreme Court Justice Brett Kavanaugh’s confirmation process, a thoroughly conducted independent investigation of allegations — something that did not happen for Christine Blasey Ford — could be pivotal in laying out the facts and accounts provided.
- Additionally, on the Senate side, members do not have to reimburse the US Treasury automatically for settlement payments. The Senate Ethics Committee would evaluate the claim and determine whether members should personally be on the hook.
Emily Martin, the vice president of education and workplace justice at the National Women’s Law Center, which advised on the bill, notes that the Senate was a bit more skittish about member reimbursements and what that process would look like.
She says the more conservative approach was likely aimed at shielding lawmaker liability.
“My best guess is that it was a version of splitting the baby: it was a way to address the #MeToo moment that brought this issue to the floor while still keeping some level of protection for members from financial exposure,” she said.
Anna Kain, a former senior staffer for Rep. Elizabeth Esty who raised allegations of harassment against the office’s former chief of staff, adds that formal employer-provided legal counsel is crucial for victims seeking to make their case. “Speaking from my experience, there’s no way I would have been able to afford an attorney while I was on the Hill,” she said.
What advocates’ ideal version would include
More effective sexual harassment legislation would not only strengthen victim advocacy and address discrimination settlements but would also offer some way to cover other fallout victims experience — like reputational blowback, says Martin.
“There is a real hit that your professional reputation can take, especially in a setting like Congress where it’s all based on personal networks,” she said, noting that there should be other protections in place that can help staffers find work at other offices after they come forward about allegations.
Kristin Nicholson, a former chief of staff in the House and co-founder of Congress Too, a group of former staffers dedicated to addressing sexual harassment on the Hill, says the organization is focused on providing some form of “safety net” for victims who may need guidance regarding new opportunities.
Additionally, Martin said she hoped the passage of this legislation would prompt Congress to evaluate stronger victim protections in other industries beyond the Hill.
This year’s efforts to reform Congress’s sexual harassment policy mark a sea change.
Before last year, sexual harassment — and how to address it — wasn’t really something that got talked about on the Hill at all, even though a staggering one in six female congressional staffers have said they’ve experienced it. #MeToo, a series of explosive lawmaker revelations and a Supreme Court confirmation centered on allegations of sexual assault, have pushed the issue to the forefront.
“The first thing that struck a lot of us is that no matter how many years you’ve spent on the Hill, you didn’t even know this process existed. That was one of the most striking things to me,” says Nicholson.
It didn’t help that lawmakers did not have any mandatory training on sexual harassment before 2017, says an aide for Speier’s office, who added that the lack of “formal HR” in Congress only further muddled how staffers could raise concerns. Congressional offices operate so independently that they’re often compared to 535 self-contained small businesses.
“[Sexual harassment] was never part of any training I was in. It was never addressed in any office handbook,” says Kain. “The biggest challenge I faced when I worked on the Hill was harassment and abuse being issues that were never talked about any point, even in a Democratic office.”
The new Democratic House could help bolster a stronger supplement
Reps. Speier and Bradley Byrne — co-sponsors of this sexual harassment bill — have already committed to introducing another bill in the new congressional term that would help fill some of the gaps in the current version, including the lack of lawmaker liability on discrimination settlements.
“I look forward to working with my colleague and friend, Bradley Byrne, to pass legislation in the next Congress to reinstate those provisions removed by the Senate for the House,” Speier said in a statement. Her aide notes that it’s already garnered support from members on both sides of the aisle.
Given some of the resistance the current bill received, it’s possible that the new version would face similar challenges, though the Democrat-heavy House would likely continue to back its passage.
Beyond additional legislation that can continue to increase accountability around sexual harassment, many advocates say that improving the congressional approach to harassment requires building on cultural changes that value staffers’ experiences as much as those of lawmakers’.
“The larger and more challenging step is changing the culture on the Hill that prioritizes members’ electoral success more than staff members’ well-being,” says Kain.
“Now it’s really about this cultural shift that can’t be legislated,” says Nicholson.