Soft on lawmakers..

Critics blast Senate harassment bill as soft on lawmakers

The plan was nonetheless hailed by supporters like Democratic Sen. Kirsten Gillibrand as a step forward.

By ELANA SCHOR and RACHAEL BADE

The Senate’s newly unveiled deal to overhaul Capitol Hill’s sexual harassment rules set off a battle Wednesday with reform advocates in the House who warn that the agreement could let lawmakers off the hook for misbehavior.

The deal, like one passed in the House earlier this year, would require lawmakers to personally pay the cost of any harassment settlements that stem from their behavior, while eliminating the mandatory counseling and mediation periods that had forced victims to wait months before seeing any action on allegations. But the Senate plan requires lawmakers to pay only for settlements related to harassment, not discrimination — which often compose the bulk of misconduct claims – and victims would have to opt out of mediation, making it the default setting.

That irks multiple people backing the House version, which would require all members of Congress to pay for any harassment or discrimination settlements stemming from their own bad behavior.

“If it passes the Senate, I look forward to going to conference, because it appears to shift the power back to the institution instead of the victims,” said Rep. Jackie Speier (D-Calif.), one of the lead negotiators of the House bill.

Maya Raghu, senior counsel at the nonprofit National Women’s Law Center, said in an interview that she has “serious concerns” about the Senate bill weakening parts of the House-passed version.

The Senate bill’s specific definition of “unwelcome harassment,” Raghu warned, risks creating an inadvertent statutory distinction between “welcome” and “unwelcome harassment.”

“Harassment, by definition, is unwelcome conduct,” she said. Raghu added that the Senate bill’s definition of harassment risks solidifying a new standard for a definition of sexual misconduct that’s already being narrowed by the courts.

“So many cases get thrown out in the early stages because of the way this standard has been read,” Raghu said. “We have significant concern that, by codifying that standard in this law, that’s going to have consequences for hostile work environment claims.”

Lawmakers could be “getting off” easier under the Senate bill than the version the House passed in February, said Les Alderman, a lawyer who represented the woman who made a harassment claim against Rep. Blake Farenthold (R-Texas), who has since resigned.

One senior House Democratic source was less diplomatic.

“This so-called compromise guts nearly every meaningful accountability provision in the House bill,” the source said. “This sends a terrible message to the American public that Congress is not taking the responsibility to lead by example seriously.”

It’s too soon to tell whether the criticism, which has so far been aired mostly in private, could hurt the Senate bill’s chances in the House, which would have to agree to the changes before the deal could reach President Donald Trump’s desk.

The Senate bill, which would update a 1995 law governing Capitol Hill’s procedures for on-the-job harassment, could pass as soon as this week and has support from liberals who have led the push for Congress to modernize its ways in the wake of the #MeToo movement. It comes after sexual misconduct scandals roiled both parties in Washington over the past year, forcing the resignation or retirement of seven lawmakers.

The congressional Office of Compliance, in particular, came under severe scrutiny from both parties for its lack of transparency and slow processing of harassment complaints. Reform advocates were also incensed that taxpayer money — at least $600,000 in the Senate over the past 20 years — went to resolving complaints, though it is unclear how much of that went toward payments for misconduct by lawmakers versus staff.

Sen. Kirsten Gillibrand (D-N.Y.), who had corralled bipartisan support for a more stringent harassment reform bill in the chamber, nonetheless hailed the deal Wednesday.

“We must remain focused on finishing this fight by passing this bill in the Senate and the House, to hold members of Congress accountable once and for all and to make sure taxpayers are never again left footing the bill for a politician’s sexual harassment scandal,” she said in a statement.

And Alderman said the Senate bill is “so much better” than the status quo or even the House bill, in terms of the process it would employ to bring forward a harassment complaint.

Under the House bill, victims have 45 days from the time they approach the compliance office to choose whether they want to file a lawsuit, which Alderman called “really rushed.” The Senate version includes a 90-day timeline.

Anna Kain, whose harassment at the hands of a former colleague in Rep. Elizabeth Esty’s office sparked a furor that led to the Connecticut Democrat’s retirement from Congress, hailed the Senate bill. But she said lawmakers should give staffers an open-ended amount of time to seek redress.

“The bill does a lot of very good things and is an important first step, but I still don’t think there should be time limits within which a staffer can file a complaint,” Kain said. “It’s not a realistic requirement given the psychological effects of abuse and the unique power dynamic on the Hill. It took me almost 2½ years to say anything.”

Under the Senate bill, lawmakers also are required to cover only “compensatory damages,” which are not defined in the bill. And they are on the hook only for harassment settlements, not discrimination complaints.

Alderman, who has represented federal employees in both harassment and discrimination cases, said “compensatory damages” usually include a substantial part of a claim — for example, a payment for harm caused — but not the entire payout, such as if the employee seeks to have attorney fees covered.

Another flash point for some critics of the Senate bill: whether it would require congressional ethics panels to approve the reimbursement of any harassment claims approved by the Hill’s workplace misconduct adjudicators at the Office of Compliance.

The Senate deal routes settlements involving “an allegation of a violation” to the ethics committees for further inquiry and approval of possible reimbursement — language that worries some in the House, since ethics panels are notorious for slow-walking investigations. Senate sources said they wanted to make sure lawmakers are not on the hook financially for wrongdoing by staff members.