Wild West approach

Congress’ Wild West approach to sexual harassment

When it comes to policing sexual misconduct, it’s every office unto itself.

By ELANA SCHOR and GENEVIEVE GLATSKY

The mushrooming scandal over sexual harassment in Congress and its secretive system for handling complaints has yet to zero in on another troublesome reality on Capitol Hill: What counts as harassment in one lawmaker’s office might not be considered that in another.

That’s because individual lawmakers’ offices effectively function as lone entities that formulate their own internal policies for employee behavior. And the Office of Compliance, the arbiter of misconduct complaints that provides harassment training now required in the House and Senate, does not provide templates.

“It’s possible there are 535 different policies,” Susan Tsui Grundmann, executive director of the compliance office, said in a recent interview.

To better understand the scope of the Hill’s workplace culture, POLITICO asked all 535 House and Senate offices — plus four delegates — about whether they had a harassment policy in place and whether it included a training program.

Of the offices that shared part or all of their internal policy, all the Senate offices defined harassment as including “suggestive or lewd remarks, including sexual innuendo” as well as “displaying sexual or pornographic images, regardless of the medium used (e.g. virtual, digital, paper, etc.).”

But most of the House offices' policies were less specific, issuing a general prohibition on "verbal or physical conduct or activity" among the behavior that creates a hostile work environment.

Three of the offices that agreed to share their policies — those of Sens. Maria Cantwell (D-Wash.) and Mazie Hirono (D-Hawaii), as well as Rep. Judy Chu (D-Calif.) — were significantly more far-reaching, barring fraternization between supervisors and subordinates. House members are weighing a broad resolution that would prohibit those relationships, according to Rep. Barbara Comstock (R-Va.).

The differing approaches from one office to another add a fresh challenge to efforts to deter and punish harassment in Congress. Underscoring the complicated nature of the Hill's workplace culture is the occasionally confusing guidance in the compliance office's anti-harassment video, which at one point suggests that a few late-night texts and hugs from one's boss wouldn't be enough to constitute misconduct.

The handful of lawmakers in both parties who are calling for broader reforms to the system already face political headwinds, as colleagues wrestle with the urge to protect their own amid what seems to be a daily drip of new harassment allegations.

"It’s an inappropriate construct we have right now, that basically says every office is a small business unto itself and the member is the CEO," Rep. Jackie Speier (D-Calif.) said in an interview. Speier is a chief author of legislation that would overhaul the Hill's workplace misconduct system.

About 43 percent of the House and 60 percent of the Senate responded to POLITICO's harassment survey, at least in part. Of the 190 House offices that responded, all but 18 said an internal harassment policy was already in place and 131 confirmed that training was already part of it.

Of the 62 Senate offices that responded, all but five confirmed they have an internal harassment policy and 52 confirmed that training already was part of it. POLITICO followed up with each personal office that did not initially respond to a request for details on internal harassment policy. In both the House and Senate, more than 60 percent of responses came from Democratic offices versus those in the GOP.

The House on Wednesday approved a measure that mandates anti-harassment training, a move the Senate made earlier this month. But the high number of congressional offices responding that they already required — or at least encouraged — employees to get trained suggests that Congress will have to do more to address the problem if it is to have significant results.

Now that training is required, Speier said, among Congress' next steps should be "a uniform policy about what’s in the handbook in each office. I do believe it will become standardized."

For the lawmakers who already ask their aides to undergo anti-harassment training, the compliance office's video is a convenient and popular method.

One segment in the video features a congressional aide named Chloe who's having trouble with her boss. He praises her looks, twice hugs her in front of coworkers, and sends her a trio of late-night text messages — one while apparently drunk — complimenting her outfits.

A clear case of harassment? Not really, according to the video, which says the behavior Chloe encountered over the course of a year “probably” would not meet the standard to demonstrate wrongdoing — though a late-night message with an explicit sexual proposition might.

“However, Chloe’s boss probably made Chloe feel uncomfortable due to his inappropriate conduct, and he may have violated office policies,” the training video states.

The fictional Chloe’s experience with late-night texts from her boss is intended to teach a broader lesson on the level of severity and pervasiveness a harassment claim has to meet to qualify as something that creates a hostile work environment.

But the model employee handbook posted on the House Administration Committee’s website sends a conflicting message. It tells employees that they “should not wait until the actions become severe or pervasive” before reporting harassment in the workplace.

"What the employee digests is, you can’t complain until you’re already in a hostile work environment," said Les Alderman, an attorney who has represented multiple congressional employees in harassment and discrimination cases.

However, Alderman added, "That sets them up in conflict with Supreme Court precedent that says you have to complain before the environment gets to that level. It’s difficult to understand for lawyers and judges, so I can’t understand why employees should be required to understand. But they are."

The majority of the House offices that shared their policies prohibit harassment based on “race, color, sex, religion, age, disability, military status or national origin.” Less than half touched on sexual orientation or gender identity, both of which were added to prohibitions against executive-branch discrimination by Democratic presidents.

Extending protections against harassment to cover sexual orientation was more common among Senate offices that shared their internal guidelines, with 14 including that added provision and 11 covering gender identity. Only one Republican office, that of Colorado Rep. Mike Coffman, shared a policy with protections based on sexual orientation.

Sen. Joe Manchin’s (D-W.Va.) office did not include sexual orientation and gender identity in the policy it shared, but was among the 17 responding offices that extended their protections to harassment based on a person's genetic information.

Other categories of protected harassment at certain offices included marital status, cited in six of the policies shared for this story, and uniformed service, cited in 17 of those policies.

The compliance office is the clearinghouse for employees who allege workplace misconduct, but its video isn't the only option for lawmakers and aides to comply with the new harassment training requirements. Another alternative is in-person training. Tsui Grundmann said her office is currently expanding its limited resources to accommodate skyrocketing demand for hands-on guidance.

The Senate chief employment counsel’s office also provides training in that chamber. Jean Manning, the Senate’s first chief employment counsel, said in a recent interview that the chamber “has a comprehensive training program, and I’m skeptical that the [compliance office] would develop anything as effective in the foreseeable future.”

Tsui Grundmann said the compliance office is planning to redo the harassment training video, in part to add guidance on the reaction of harassment bystanders and on anti-retaliation measures. The office's budget, notably, has remained flat in recent years.

Another segment in its training video provides clearer guidance on “quid pro quo” harassment, using an example of Chloe getting pressured to have dinner with a supervisor who tells her, “It’s good for your career.” And the office clearly states that congressional employees have 180 days after alleged harassment occurs to file a request for mandatory counseling.

However, three House offices who shared their internal policies added a clause stating that employees must report harassment within 48 hours: Reps. Rick Crawford (R-Ark.), Mike Bishop (R-Mich.), and Ralph Abraham (R-La.)

That rule raised questions for one former chief of staff. Given the unconventional workplace environment of Capitol Hill, "It’s not that far of a leap to get to something that isn’t appropriate at all to be asked to do, and a staffer's response is always going to be 'yes, whatever you need,'" the veteran aide said in an interview.

"It’s only after talking through it with more senior people and doing some reflecting that you might realize that request was inappropriate," the aide added. "The idea that that would always happen within 48 hours is pretty crazy."