The Senate on Thursday passed a bill by voice vote that would crack down on sexual harassment on Capitol Hill and update the onerous process for employees to report harassment and discrimination.
The overhaul measure was quickly brought to the floor, after being released Wednesday with the backing of the Senate’s Republican and Democratic leaders.
The bill’s authors, Rules and Administration Chairman Roy Blunt of Missouri and ranking member Amy Klobuchar of Minnesota, lauded it as a needed update to the 1995 law that governs workplace harassment and discrimination claims in Congress, dubbed the Congressional Accountability Act.
“This is an antiquated policy” that requires mandatory counseling and mediation for accusers and other steps, “and it’s time for a change,” Klobuchar said. “This is a good day for changing the rules so that the deck is not stacked against victims who should be in a safe workspace.”
Blunt said the 1995 law puts “too many obligations and too many restrictions, in our view, on victims. Those things are all eliminated.” He noted the new measure would make lawmakers personally liable for settlements stemming from their actions: “It puts the responsibility where the American people think it should be.”
Watch: McConnell and Klobuchar High-Five After Passage of Sexual Harassment Bill
Swift passage by the Senate came more than three months after the House passed its own version, leading to a lengthy effort among senators to draft their own bill. The Senate proposal has some significant differences from the House measure, however, including doubling the amount of time, to 90 days, that employees have to request a hearing or file a civil action in federal district court.
The Senate bill would make big changes to the process for employees to report and resolve claims of harassment, which has been criticized by lawmakers from both parties for taking too long and putting much of the burden on victims. Periods of mandatory counseling and a 30-day “cooling off” period would be eliminated under the measure. Although mediation would be the default process, employees would be able to opt out.
There are critics of the bill, despite the bipartisan support in the Senate. The Leadership Conference on Civil and Human Rights, along with other groups, sent a letter Wednesday warning Senate Majority Leader Mitch McConnell and Minority Leader Charles E. Schumer that the bill “falls short of an acceptable compromise, and may have unintended negative consequences.” They also targeted the timeline, saying that senators and stakeholders were not given enough time to review the bill.
The term “unwelcome harassment” appears in the Senate legislation, and the groups said it should be removed because harassment by definition is never welcome. The groups added that the bill would put into law a restrictively narrow interpretation of harassment that would limit reimbursement to victims.
The bill would require members of Congress to personally pay for any settlements to victims in cases where they are the alleged harasser. Lawmakers would have 90 days to repay the Treasury for the amount of the award or settlement before their salary would be withheld.
Currently, settlements are paid with taxpayer funds. Both the Senate and House measures would make repayment mandatory.
On member liability, the specificity of the Senate bill is a departure from language that passed in the House, which includes a more expansive view of cases in which personal liability would be triggered. The Senate text tightens the liability language, making members responsible for all settlements from their own misconduct but not for certain other issues. The Senate bill would also cap lawmaker liability at $300,000 and would only hold members liable for “compensatory damages.”
This provision “would allow members to game the system” by allocating damages so as to minimize the amount that a member would be required to pay, according to the Leadership Conference on Civil and Human Rights.
Ethics committees’ roles
The bill would require all awards and settlements for harassment violations under the 1995 law be referred to the chamber’s Ethics panel for review. That would give the House and Senate Ethics committees new responsibilities, including reviewing the settlements of harassment claims against members within 90 days.
The Leadership Conference raised concerns in their letter that members of the Ethics committees would have access to settlement documents as part of the review process — without redaction of the claimant’s name and identifying information. They argued that in the small world of Capitol Hill, this could have a chilling effect on reporting by staff if they know their name and information may be shared with lawmakers whom they may interact with in their work.
The Senate deal would route settlements involving “an allegation of a violation” to the Ethics panels for further inquiry and approval of possible reimbursement by lawmakers. Senators were concerned that lawmakers could be financially liable for misconduct by their staff, not themselves, and this process could safeguard against that.
The public would get to know more about complaints against lawmakers under the measure because the bill requires increased public reporting when a claim is settled, including details about which member’s office the claim originated from.
The new Office of Congressional Workplace Rights, which would replace the current Office of Compliance, would be required to report annually to Congress and to publish on its website all awards and settlements when members are found to be personally liable from the previous year.
The reports would include the employing office, what part of the 1995 law was violated, and if the member was involved and whether they have complied with the repayment requirement. The House bill calls for semiannual reports.