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Congress’ sexual harassment system, decoded

POLITICO answers some of the most pressing questions and misconceptions about how Capitol Hill handles, and settles, misconduct complaints.

By ELANA SCHOR

It has all the makings of a serious scandal: more than $17 million in public money paid since 1997 to settle workplace disputes on Capitol Hill.

But the reality of what critics lambaste as a sexual harassment “slush fund” is more complicated, like much about Congress’ policy for handling harassment complaints. The money covers all sorts of settlements, just not for sexual harassment, and some lawmakers cut their own side deals with accusers.

A settlement negotiated on behalf of a woman who accused Rep. John Conyers (D-Mich.), her former boss, of sexual misconduct is just the latest example: The money came out of Conyers' office budget, meaning it wasn't even included in the $17 million total.

What's more, because the multimillion-dollar settlement figure covers disputes aside from sexual harassment, including those over pay and workplace safety, it is impossible to know how much money taxpayers are actually doling out to sexual misconduct victims. The once-obscure Office of Compliance, which pays out the settlements, does not release information in which the cases are broken down by category. And it says “a large portion of cases” it resolves stem from Hill employers other than the House and Senate, such as the Capitol Police and Architect of the Capitol.

Here are some of the other big questions surrounding Congress' notoriously opaque sexual harassment system, which lawmakers in both parties are now pushing to reform:

Who knows when a lawmaker or aide settles a harassment claim?

The identities of lawmakers or their aides who reach misconduct settlements aren't disclosed, effectively meaning there's no warning system for other potential victims. Rep. Jackie Speier (D-Calif.), a longtime proponent of reforming Capitol Hill's harassment policy, is winning GOP supporters for legislation that would make members of Congress personally liable for harassment settlements against them.

Last week, Speier testified that two sitting members of Congress — one in each party — have engaged in sexual harassment. And she described the compliance office as “an enabler of sexual harassment,” thanks to a process set up that she asserts puts victims at a disadvantage.

Speier told POLITICO in a statement that the onus is on Congress to reform its own in-house system.

"Make no mistake that the fault of the current complaint process lies within Congress, which authored and passed this deeply flawed legislation that established the Office of Compliance and its burdensome complaint process," Speier said. "It is our responsibility to fix this law and do better for our employees."

The compliance office, which previously revealed its settlement spending to little fanfare, is trying to raise its profile amid the intense scrutiny of sexual harassment on the Hill.

Susan Tsui Grundmann, the compliance office’s executive director, said in an interview that Speier's testimony about harassment by sitting members has put male lawmakers “under scrutiny right now, because it could be everyone."

“I’m not saying she’s wrong in saying that,” Tsui Grundmann added, “but by not naming them — and we can’t name them — it’s put a cloud under the entire Capitol Hill.”

Who in Congress approves settlements paid with taxpayer money?

The top Republican and Democrat on the House Administration Committee approve workplace dispute settlements for that chamber before they are paid from the compliance office's fund, which Congress allocates money for in its annual legislative branch spending bill. There is no such similar process in the Senate, according to Jean Manning, who set up the upper chamber's Chief Counsel for Employment office in 1993 and remained in that post until 2014.

"I don’t understand why they do that," Manning said of the House's policy requiring administration panel approval of settlements.

Manning added in an interview that she "would be concerned that it could become political — each side of the aisle could have a political reason for not approving a settlement. If a case isn’t settled, it could proceed to a public lawsuit."

The compliance office also approves pending harassment settlements, which it then releases in broad totals that do not break down which Hill employer or which type of workplace conduct is involved. The compliance office says that it does not report more specific details about the fund because some claims can cover multiple types of misconduct.

The House administration committee's chairman, Rep. Gregg Harper (R-Miss.), has yet to field any harassment settlement requests since taking the gavel earlier this year, according to a spokeswoman. Asked whether Harper would consider publicly releasing data on harassment settlements, including those from previous years, the spokeswoman said that potential changes to "the reporting and settlement process" are part of the committee's "extensive review" of Capitol Hill's harassment policy.

AshLee Strong, spokeswoman for Speaker Paul Ryan (R-Wis.), also said by email that "additional actions are possible" as the administration panel moves forward.

But not much, it appears, would deter lawmakers from taking Conyers' approach and settling harassment allegations using their own office budgets — which are also funded by taxpayers — rather than the compliance office's fund.

Are victims of harassment required to keep their experience confidential?

The compliance office says that "there is no restriction on whom you can tell" about pursuing a harassment claim, but victims are subjected to confidentiality requirements during their mandatory counseling and mediation periods. An aide who might want to speak out about their harassment claim, including talking to their employer, can ask to waive confidentiality during counseling.

The mediation process, however, remains subject to strict secrecy rules, including the use of non-disclosure agreements that bind victims from talking.

"The trappings of confidentiality, they permeate the process," said Alexis Ronickher, an attorney who has represented several clients pursuing harassment claims through the compliance office. "The law is written to create a system to disincentivize staffers from coming forward."

Tsui Grundmann said the compliance office does not require nondisclosure agreements, though parties to a settlement can choose to impose them.

“It’s good public policy for people to settle their claims in a setting where they can have an open conversation and know that conversation ends when the document is signed,” Tsui Grundmann said. “That’s not unique to us.”

Notably, the compliance office requires any congressional employee pursuing a complaint to obtain a password in order to access the forms they must file to request counseling or a mediation, or to formally file a harassment claim.

Who investigates harassment complaints on the Hill?

After undergoing mandatory counseling and mediation, harassment victims can formally pursue a complaint with the compliance office or file a federal lawsuit. If the victim goes through the compliance office, a hearing officer with subpoena power vets their allegations in a confidential process and makes a final decision within 90 days.

Speier’s legislation, sponsored in the Senate by New York Democrat Kirsten Gillibrand, would give the compliance office the broad investigative authority that the Equal Employment Opportunity Commission has to probe harassment allegations in the private sector.

Their bill also would empower the compliance office to look into harassment allegations from former employees or members and create a “reasonable” discovery period to gather more information about alleged misconduct. In keeping with that redesign of the compliance office as more of a watchdog, the legislation also would rename it the Office of Congressional Workplace Rights.

Will the House and Senate’s move to mandatory harassment training change anything?

The House and Senate have both moved this month to require harassment training for all lawmakers and aides. Although leaders tout the move, most Senate offices already were mandating the training — which can be completed online, despite a preference for in-person training among attorneys involved in the process.

“It absolutely has to be in person,” said Manning, the Senate’s veteran chief employment counsel. “There have to be questions back and forth. Employees and managers learn so much.”

Tsui Grundmann said the compliance office “has been bombarded with” requests for training in recent weeks. Only one employee at the office, she said, is currently dedicated to in-person harassment training.