These cases used to be regarded as outliers. It is now all too clear that these cases of misconduct or abuse may in fact be the norm. In the typical case, more powerful congressmen or senior staffers have harassed or abused female staff members. These women, many only just beginning their careers, sometimes unpaid, and often unaware of their rights, have tended either to leave their positions or carry on as if the assault or harassment had not taken place in order to avoid retaliation.
Under the current system, accusers are able to file lawsuits only if they first agree to attend months of counseling and mediation. After mediation, the Office of Congressional Compliance (OCC) is charged with resolving the case outside of the courts. If a settlement is reached the member whose office the incident took place in does not pay. Rather, the payments come out of a special U.S. Treasury fund supplied through taxpayer money. While this ensures that a settlement is not dependent on the whim or stubbornness of a particular member, it also is less of a penalty for the member or staffer whose conduct led to the filing of the complaint than if their own or their office’s funds were on the line.
This is the mandatory process many victims face when making the decision to report misconduct. For many, it is daunting, laborious, and an invitation for retaliation. In response, Gillibrand and Speier have introduced the Me Too Congress Act to restructure the sole complaint process available to legislative branch employees to make it more effective and better known. Currently, the OCC is the sole route to enforce the Congressional Accountability Act, under which Congress (relatively recently) subjected itself to the anti-harassment and discrimination provisions of Title VII, but the OCC process set up in the Congressional Accountability Act for employees to try to invoke those protections is deeply flawed and ends up discouraging far more aggrieved employees from pursuing claims than it assists.
Moreover, due to a lack of training, many victims are not even aware that this system is available to them. Barbara Childs Wallace, chairwoman of the Office of Congressional Compliance’s board of directors, said congressional employees generally are not aware of their rights, whether they should report sexual harassment claims or even that the office exists. So with a system unfriendly to victims and a culture and clear history of protecting perpetrators, can any good come of these new training requirements?
For many, it is a necessary and important first step. However, it is not enough to simply order members of Congress to attend these trainings. As with any other institution workplace culture and norms are often decided and set by those in positions of authority and power. As these trainings move forward, it will largely fall to members of Congress to set the tone for their respective offices to take these matters seriously. Additionally, these trainings must inform staffers of their rights and the resources available to them if they are the victim of sexual harassment or assault, including the OCC process.
Whatever measures Congress decides to implement, ultimately what is needed is a shift in the culture. In American society at large, women are beginning to speak up and tell their stories of sexual harassment at work en masse. Unlike in previous years, they are being believed and the perpetrators are facing consequences. The momentum is growing, and we should hope that the #MeToo movement can make its way far enough into the halls of Congress to bring about real change rather than lip service followed by a return to the previous, now unacceptable, norm.
Heather White is a partner specializing in public sector employment litigation at the Federal Practice Group in Washington, D.C.
Paige McKinsey is a legal assistant at the Federal Practice Group.