Labor & Employment Law Daily Congressional #MeToo compromise bill approved, discarded provisions to land in new bill next session
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Tuesday, December 18, 2018

Congressional #MeToo compromise bill approved, discarded provisions to land in new bill next session

By Pamela Wolf, J.D.

Congress has finalized proposed reforms to procedures governing how sexual harassment and other workplace discrimination claims against legislators are handled, with the Senate approving the compromise bill early on December 13, and the Senate passing it later that day. The harmonized bill, S. 3749, cleared both chambers the same day it was introduced. But look for more action in the next Congress, particularly as to provisions discarded from the original House bill.

Stalled legislation. Earlier versions of the Congressional Accountability Act of 1994 Reform Act introduced in the House and the Senate were approved several months ago, languishing with no further action. On February 2, 2018, the House approved H.R. 4924 a day after it was introduced. On May 24, 2018, the Senate approved its version of the same bill, S. 2952, which passed without amendment the same day it was introduced.

Frustrated by the continuing Congressional delay (while the #MeToo movement continued to net positive results across the nation), the House Committee on Ethics sent a letter to Congressional leaders pressing for passage of the legislation. As the committee noted, it alone among House committees, is evenly divided between Republicans and Democrats.

Compromise bill. The harmonized version of the Congressional Accountability Act of 1994 Reform Act, perhaps most notably, would require lawmakers to reimburse the Treasury for awards and settlements stemming from acts of harassment they personally committed, including lawmakers who have left office. Other provisions in the bill would:

  • Change the way harassment claims are handled by eliminating the required 30-day “counseling” period, the required 30-day mediation phase, and the 30-day “cooling off” period. The legislation would permit an alleged victim to immediately pursue an administrative hearing or file a civil action.
  • Provide employees with access to a dedicated advocate who will provide consultation and assistance regarding proceedings before the Office of Compliance.
  • Require public reporting of awards and settlements, including identifying if a Member of Congress was personally liable.
  • Require awards or settlements to be automatically referred to the Committee on Ethics for claims against Members of Congress and senior staff.
  • Extend protections under the Congressional Accountability Act to unpaid staff, including interns, detailees and fellows, and other Legislative Branch staff.
  • Provide opportunities for employees to work remotely or request paid leave without fear of retribution.
  • Require a survey of staff each Congress to examine the workplace culture on Capitol Hill.
  • Provide additional support for state, district, and regional Legislative Branch staff to ensure they have the same access to Office of Compliance resources, training opportunities, guidance, and advice as Washington, D.C.-based legislative branch workers.
  • Require the Office of Compliance to establish an electronic system for taking in claims by victims, tracking those claims throughout the process, and generating reports on various details of claims.

Nixed provisions. According to Representative Jackie Speier (D-Cal.), a provision in the original House bill that required lawmakers to be held personally liable for discrimination claims as defined by Title VII was removed by the Senate. That Chamber also struck language requiring an investigation by an independent third party when a victim comes forward. The Senate in addition refused to adopt the House rule that passed in February and provides House staff with legal representation.

“Congress finally joined together today to say, ‘Time’s Up!’ and sent a message to all members and staff that we will no longer tolerate sexual misconduct that denigrates employees and debases the institution,” Speier said. “All the members who fail to heed this warning do so at their own risk, because if they harass or retaliate against a staffer they will be paying out-of-pocket for any settlements or court-ordered awards. And resigning and slinking off into the dark won’t work because we’re going to garnish wages, Thrift Savings Plans, pensions, and Social Security payments until the US Treasury is reimbursed.”

If at first you don’t succeed … Speier and Representative Bradley Byrne (R-Ala.), who worked together to draft the original House bill, along with Committee on House Administration Chairman Gregg Harper (R-Miss.) and Ranking Member Robert Brady (D-Pa.), immediately announced that they will introduce new legislation in the 116th Congress to reinstate the provisions omitted or altered by the Senate.

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