On Monday night, BuzzFeed broke the story that Michigan Rep. John Conyers paid a former staffer thousands of dollars in a settlement in 2015 after sexually harassing her and other women in his office and then firing her for refusing his advances.
He likely isn’t the only member of Congress to settle a harassment case. Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.
The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.
The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.
The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in media, comedy, and Hollywood, it’s come under more scrutiny.
This secret Congressional sex harassment payoff fund could be the Congressional bank scandal redux.— John Podhoretz (@jpodhoretz) November 15, 2017
Victims of sexual harassment on Capitol Hill are protected by law. But payments made by harassers are protected too.
The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.
But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.
In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.
“Congress has notoriously exempted itself from accountability measures,” said Danielle Brian, executive director of the Project on Government Oversight, an organization focused on promoting transparency in government, in an email. “It's no wonder the public has such a low approval of Congress given that they exempt themselves from workplace laws that they apply to the rest of society. It is long overdue for Congress to live by the standards of conduct they appropriately demand from others.”
The 1995 law also established “an account of the Office in the Treasury on the United States for the payment of awards and settlements” — a fund paid for by taxes to pay settlements.
The payouts have varied widely, from just under $40,000 in 1997 to more than $4 million in 2007 to just under $1 million in 2017. The fund is virtually unlimited. The act calls for however much is necessary to pay awards and settlements, and a spokesperson for the Congressional Office of Compliance told me that money is only added to the fund when it is needed for a payment.
The exact source of the money is still a question: The spokesperson told me that money for the fund is not included in the yearly legislative branch appropriations budgets.
The Settlement and Awards Fund isn’t the only fund made up of unlimited taxpayer money to solve the government’s legal problems. If you sue the United States government, your settlement will be paid by the same fund used to pay the Iranian government $1.3 billion in interest, part of an effort to end a financial dispute between the two countries and hasten the return of five Americans being held in Tehran (including Washington Post journalist Jason Rezaian.)
This fund is called the Judgment Fund, established by the Automatic Payment of Judgments Act of 1956 to be “a permanent appropriation for the payment of certain types of judgments and settlements obtained against the United States.”
If the US government is found liable in court, the Judgment Fund pays if another source of money isn’t available. Over the past 50 years, those provisions have been altered to include “administrative claim awards,” settlements made by agencies that didn’t require a lawsuit. It’s not clear if the Judgment Fund has ever paid out a harassment case, but Congress has been sued at least once over workplace discrimination laws.
The Office of Compliance’s mediation process for victims of harassment is long, complicated — and discouraging
Women working on the Hill, from senators to staffers, have been subject to sexual harassment for decades — even during hearings. And there’s no human resources department in Congress. Instead, the same law that created the settlement fund also created the Office of Compliance to administer it.
If members of legislative branch staff — from Senate office staffers to employees of the Congressional Budget Office — experience sexual harassment at work, they must go to the office within 180 days of the incident to find a solution.
The compliance office then initiates a four-step process: a 30-day counseling period, a mediation effort, an administrative hearing or civil action (a lawsuit), and an appeals process.
But according to Rep. Jackie Speier (D-CA), who has proposed a bill to change how Congress handles harassment, the current process puts the employee making a complaint at greater risk than the person who has harassed them.
Victims can’t even make a formal complaint for sexual harassment (or any other violation of the CAA) until three months have passed, including a 30-day period after enduring a mediation process with their harasser.
Even if victims get through the process and receive a settlement, that money comes not from their harasser’s office but from the Settlement and Awards Fund. Furthermore, no office is required to make those payments public, meaning that legislative staffers — including members of Congress — may have sexually harassed their colleagues and employees on the Hill, and done so with the knowledge that settlements to victims would stay secret.
And thousands of employees that make up the offices of legislators on the Hill can’t even take advantage of the protections that do exist. Interns who work (often for free) on the Hill every summer aren’t protected by the CAA, despite efforts by some Democrats to pass explicit protections for interns back in 2015.
Overall, a spokesperson for Speier told me, “It’s very clear [that] when the original bill that put this process in place was passed in 1995, it was done to protect the institution, not the most vulnerable.”
There’s still a lot we don’t know about the money used to pay victims of sexual harassment
According to the Office of Compliance, nearly $1 million has been paid in settlements for violations of the CAA in 2017.
But contrary to recent media reports, there’s no breakdown of which payments for CAA violations were for which offense, or even from which office.
Settlement payments are approved by the chair and ranking member of the House Administration Committee, but they are under no obligation to tell anyone else about those payments, and more importantly, which office was responsible for them. An aide to House Administration Committee Chair Rep. Gregg Harper told CNN he had received no requests for settlement approvals since becoming chair on December 2 of last year.
In the wake of allegations of sexual harassment against political figures like Sen. Al Franken and Republican Senate candidate Roy Moore, Speier and Sen. Kirsten Gillibrand proposed the Member and Employee Training and Oversight on (ME TOO) Congress Act, an effort to reduce sexual harassment in Congress through trainings, increased transparency, and changes to the complaint process.
If the ME TOO Act becomes law, it will require the Office of Compliance to identify the members of Congress whose offices settled harassment suits. In addition, if a member of Congress settles a claim as a harasser, they will have to pay back the Treasury for the amount of the award or settlement made to their victim.
The bill also has some Republican support. Rep. Bradley Byrne of Alabama, a former practicing labor attorney, told reporters on Monday that the Compliance Office should have the power to subpoena and investigate accusations of CAA violations, including sexual harassment.
A spokesperson for the Congress member told me that Byrne “was surprised to learn about the differences between how harassment claims are handled in Congress and in the private sector. He strongly believes Congress should have to play by the same rules as every other American. He is working with colleagues, including Congresswomen Jackie Speier and Barbara Comstock, to make bipartisan reforms to the outdated process.”
But for now, victims of sexual harassment on the Hill are locked into a lengthy and uncomfortable process to seek justice. And if they make it to a settlement, their harassers aren’t the ones paying it — in effect, they are.