The 264 Congressional staffers and other legislative branch employees who were paid more than $17 million over the past two decades, according to a report released on Thursday by the Office of Compliance, to settle harassment claims are just the tip of the iceberg of the total number of harassment incidents that have taken place on Capitol Hill, sources tell Breitbart News.
The reason so few incidents of harassment, sexual and otherwise, of Congressional staffers by members of Congress have ended up in financial settlements is because Congress passed a law designed to protect itself from such claims – prohibiting their employees from having the same rights of redress that more than two million other federal employees and tens of millions of private sector employees have.
More than two decades ago, Congress passed and President Bill Clinton signed into law the Congressional Accountability Act (CAA) of 1995, which established what Elizabeth K. Newman, an attorney with The Jeffrey Law Group, a Washington based law firm that represents Congressional staffers subjected to sexual and other forms of harassment, says is a “a terribly inefficient process and it takes forever,” in dealing with those allegations.
“What staffer in his or her right mind is going to sit through that?” Newman asked Breitbart News in an exclusive interview.
The CAA established the Office of Compliance, located right on Capitol Hill, which has the administrative responsibility for handling harassment incidents brought to it by Congressional staffers.
Employees of private companies with fifteen or more employees can file a harassment claim with the Equal Employment Opportunity Commission (EEOC), regardless of whether they have gone through their private company’s internal procedures.
Federal employees who are not employed in the legislative branch can also file a harassment claim with the EEOC.
“If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency’s EEO complaints program,” the EEOC website states.
But Congressional staffers and employees of the other agencies that are part of the legislative branch–the GAO, the Congressional Budget Office, and the Library of Congress–are prohibited by law from filing harassment claims with the EEOC.
“They [Congressional staffers]” should have the same rights to go to the EEOC as their federal employee brethren,” Newman tells Breitbart News.
But Newman says they do not have those same rights now, because the”EEOC does not have jurisdiction” over complaints of sexual harassment filed by employees of the legislative branch against their employers.
The authorizing legislation for the EEOC “expressly does not extend jurisdiction to the legislative branch,” Newman notes.
Breitbart News asked the Equal Employment Opportunity Commission if a Congressional staffer – or any employee covered by the Congressional Accountability Act of 1995 – files a sexual harassment claim with the EEOC without first submitting to “counseling” and “mediation” with the Office of Compliance.
“EEOC has no jurisdiction over Congress, so we suggest you check with the Office of Compliance: https://www.compliance.gov/publications/congressional-accountability-act-overview,” a spokesperson for the EEOC tells Breitbart News.
“We would inform the individual that we can’t take the charge and have no jurisdiction,” the EEOC spokesperson told Breitbart News when asked what EEOC would do if a Congressional staffer attempted to file a sexual harassment complaint with the EEOC against a member of Congress that took place on Capitol Hill.
As for the Office of Compliance process to deal with incidents of sexual and other harassment by members of Congress against staffers, attorney Newman says, “For all intents and purposes it’s an internal administrative process.”
“The CAA provides a mandatory dispute resolution process of counseling and mediation for the settling of disputes,” the Office of Compliance Handbook states, adding:
If the parties involved are not able to resolve their dispute through counseling and mediation, an employee may either pursue a non-judicial administrative hearing process with the Office of Compliance or file suit in Federal court. The administrative hearing process offers speedier resolution and greater confidentiality than a Federal civil suit while still offering the same remedies that a court can provide.
The dispute resolution process is a multi-step process. All employees, including district office staff, must follow established dispute resolution procedures in order to process their claims under the CAA. Only after an employee has engaged in the required counseling and mediation can a remedy be granted. The failure to follow these procedures or to meet established time lines may jeopardize any claims raised under the CAA.
Surprisingly, Step One of the process, “Counseling,” is mandatory for the complaining employee, but not the individual who is has allegedly engaged in the harassing behavior against the employee, a highly unusual requirement when compared to the EEOC process. Here’s how the Office of Compliance Handbook describes Step One:
Step One: Counseling
The first step in the dispute resolution process is to file a written request for counseling with the Office of Compliance.
A request for counseling must be made within 180 days after the date of the alleged violation. The counseling period normally lasts for 30 days. . . .
During the counseling period, an Office of Compliance counselor will discuss an employee’s concerns and inform the employee of his or her rights under the law. The counselor does not serve as a representative or advocate, only as an advisor to help an individual understand how the law works and to clarify facts and issues. A covered employee may retain representation at any time during the dispute resolution process. [emphasis added]
The Second Step of the process, “Mediation,” is also mandatory for the complaining employee:
The Second Step: Mediation
If an employee chooses to continue with a claim after the counseling period, the next step is to request mediation with the Office of Compliance. Mediation must be requested within 15 days of receiving notification of the completion of the counseling period and lasts for 30 days unless both parties request an extension of time.
During mediation, the Office of Compliance appoints one or more neutral mediators – professionals at dispute resolution – who will meet with the parties to the dispute to seek a solution to the problem that is acceptable to both parties. The goal of mediation is a voluntary resolution acceptable to all. Mediated settlements are always voluntary and can never be imposed by the mediator.
Mediation is intended to provide a confidential, informal means of settling disputes. Mediation permits both employees and their employing office to come together with a neutral third party to attempt to resolve a dispute under mutually acceptable terms. Mediation also permits the parties to resolve a dispute promptly and avoid a formal
adversarial complaint process.
Only after the complaining employee has gone through the cumbersome and potentially intimidating first two steps of the process–counseling and mediation–is the employee allowed to go to the the Third Step, “Civil Action or Administrative Hearing.”
It is only after the Fourth Step, “Review by the Board of the Office of Compliance” that the complaining employee has an opportunity to receive a financial settlement, “If an employee prevails in a case.”
When that happens, “the Hearing Officer, Board of Directors, or Federal court may order monetary awards and other appropriate remedies. Attorney’s fees, expert fees, and certain other costs may also be awarded.”
Notably, “No civil penalties or punitive damages may be awarded for any claims under the CAA,” another marked contrast to how such claims are handled throughout the rest of the federal government and in the private sector.
“They [the Office of Compliance] encourage and push cases to mediation during that process,” attorney Newman says.
“It’s more counseling them on an exit strategy,” Newman says when asked how the firm deals with CAA complainant clients.
“More of how can we help our clients get through the process.”
If not satisfied with the results of the lengthy four step process, a Congressional staffer who says they have been harassed can then take their claim to federal court, but as attorney Newman notes, “They have to exhaust the administrative process” before they could get their day in federal court.
“During testimony before the Committee on House Administration on Tuesday, Representative Jackie Speier (D-CA) stated there are two current members of Congress, one Republican and one Democrat, who have sexually harassed people,” Breitbart News reported:
Speier said, “In fact, there are two members of Congress, Republican and Democrat, right now, who serve, who have been subject to review, or [have not] been subject to review, but have engaged in sexual harassment.”
She continued, “These harasser propositions such as, ‘Are you going to be a good girl?’ To perpetrators exposing their genitals, to victims having their private parts grabbed on the House floor. All they ask in return as staff members is to be able to work in a hostile-free work environment. They want the system fixed and the perpetrators held accountable.”
Speier and former Congressional staffers are calling for reform of the process.
“The CEO of the Congressional Management Foundation, which is dedicated to supporting Congressional offices and staffs, has stated that “we have no doubt that sexual harassment is underreported in Congress, just as all workplace infractions are underreported in Congress,” a letter circulated and signed by more than 1,200 former Congressional staffers notes, adding:
The OOC is charged with adjudicating workplace disputes, as required by the Congressional Accountability Act of 1995 (P.L. 104 – 1). The same CQ/Roll Call survey found that nine in ten staffers were unaware of the OOC. This is consistent with our experience, as most of us were not aware of the OOC during our time in Congress. Although the OOC has urged Congress to require mandatory staff training to deter sexual harassment since 1996, this training has not been required.
Furthermore, the dispute resolution process at the OOC may actually discourage victims from filing a grievance because of the excessive waiting period it imposes on victims. The OOC requires an individual to wait at least 90 days from the alleged incident before the filing of a sexual harassment complaint. This includes requiring the complainant to undergo 30 days of mandatory counseling and 30 days of mandatory mediation between the employee and his or her employing office. Only if mediation is unsuccessful can the staff then pursue legal action.
We believe that Congress’s policies for preventing sexual harassment and adjudicating complaints of harassment are inadequate and need reform.
We urge the House and the Senate to change current policy to require mandatory in-person harassment training for all Members of Congress and Congressional staff, and to make counseling and mediation voluntary for individuals wishing to file a complaint with the OOC.
It is unclear what, if any, action the House Administration Committee, the House Leadership, including Speaker Paul Ryan (R-WI), and the Senate Leadership, including Senate Majority Leader Mitch McConnell (R-KY), will take to address the problems of sexual harassment identified in this testimony.
Breitbart News contacted Speaker Ryan and Majority Leader McConnell for comment, but has not received a response.