It's a boy's club.... I think that a lot of things are just understood and you've got to play by the rules and keep quiet about it. That's just kind of the mentality, from my experience. And so, I feel like the feedback that was given to me was: If I wouldn't stay quiet and fall in line, then my career was over.... I was told right away that I would be, quote-unquote, "blackballed" if I came forward.... That's exactly what happened.
--Lauren Greene, former aide to former Representative Blake Farenthold (R-Texas), on the effect of coming forward with claims of sexual harassment and discrimination against her former boss; a decision that led to the "implo[sion]" of her entire political career after five years of "climbing the Capitol Hill ladder." (1) INTRODUCTION
Nearly half of working women in the United States say they have experienced harassment in the workplace. (2) Research also shows that women in male-dominated work environments are sexually harassed more than women in gender-balanced or in female-dominated work environments. (3) Congress certainly cannot be described as a female-dominated or even a gender-balanced work environment. Of the 535 elected representatives of the 115th Congress, only 110 positions were held by women--just twenty-one percent. (4) Among congressional staffers, while it appears that roughly half of the total positions are filled by women, there is a vast disparity between the number of women in positions of authority as opposed to the number of men holding those positions (5): men dominate in positions of authority, (6) while women are overwhelmingly represented in administrative or constituent-services positions. (7) In terms of both elected officials and the staff they hire, it is evident that there is either an imbalance of female presence altogether or that there is an imbalance of female power even when women are present, as the female staff hired are most often constrained to low-level positions. The combination of this imbalance of the sexes, the unique environment of power surrounding the halls of Congress, and the vital role that congressional employment plays for young professionals striving to achieve a career in national politics, fosters a culture in which harassment can easily occur, remain unreported, and go systematically unpunished.
Since the 'me too' Movement's infiltration into the congressional workplace, various members of Congress have been quoted in their belief that "as Members of Congress we must hold ourselves to a higher standard." (8) Yet the deluge of sexual harassment claims pouring out from past and present congressional employees makes clear that Congress has not been holding itself to a higher standard. (9) Leaving aside the question of whether elected representatives should be held to a higher standard than the general public, Congress has set that bar for itself, and the American people should expect its members to meet it. There were quick calls to reform the Congressional Accountability Act of 1995 ("CAA") (10) following the wave of public allegations of harassment occurring in Congress. (11) In response, both houses passed their own reform bills and then spent months trying to negotiate between the two. (12) Finally, more than a year later, the public received an answer from its representatives as to how they expected to live up to a "higher standard": the Congressional Accountability Act of 1995 Reform Act ("Reform Act"). (13) Yet, it is not clear that the reform amounts to true accountability. The Reform Act is considered by many to be only "an important step" in the right direction--not a resounding victory. (14) It represents a watered-down version of what the House had hoped to accomplish, (15) and falls short of the reform needed to really ensure that Congress holds itself to a higher standard when it comes to preventing and correcting sex discrimination and harassment within its halls.
This Note explores how the CAA contributed to the underreporting of the sexual harassment occurring in Congress and evaluates both the original proposals offered by the House and Senate to reform the CAA and the Reform Act in its final form. Part I will offer brief background information on the 'me too' Movement and the specific allegations of harassment against individuals in Congress. Part II will explore the issue of underreporting when it comes to instances of sexual harassment, with a particular focus on reporting considerations of professional women such as those employed in the legislature. Part III gives an overview of Title VII, the basic framework for making a formal complaint for sexual harassment or discrimination that occurs in the employment setting. Part III then largely focuses on the CAA and how it modified the procedure required to bring claims of sexual harassment or discrimination occurring within the congressional context. Part IV is broken into three Sections. Section IVA describes the major components of the initial House and Senate reform bills and how they compare to one another and to the Reform Act. Section PV.B covers the major components of the Reform Act. Section IV.C then explores the ways in which the Reform Act falls short of what victims of sexual harassment on Capitol Hill deserve and fails to meet Congress's promise to hold itself to a higher standard.
'ME TOO': THE NATIONAL MOVEMENT EXPOSES CONGRESS'S SEXUAL HARASSMENT PROBLEM
Though it did not garner national attention until 2017, the 'me too' Movement was founded in 2006 to build a community for survivors of sexual violence, particularly for women and girls of color in low-income communities. (16) The Movement garnered national attention due to a viral hashtag born in the wake of successive allegations of sexual harassment against high-profile men in Hollywood in October 2017, including claims against Harvey Weinstein and Roy Price. (17) With just one tweet, actress Alyssa Milano elevated the grassroots 'me too' Movement to a national platform. (18) Before the end of the month, public allegations were brought forward against dozens more men: actors, CEOs, celebrities, directors, publishers, photographers, and journalists. (19) In November 2017, the wave of 'me too' allegations reached politics, first with Senate candidate Roy Moore (20) and then with Senator Al Franken. (21) In the year that followed, public allegations were made against eleven U.S. representatives and against the chiefs of staff for two additional representatives. (22) In both claims against the chiefs of staff, the respective representatives were accused of failing to take any action to address the sexual harassment despite having knowledge of the conduct. (23) Not only were claims made against representatives by congressional staff or members of the public, allegations of sexual harassment were also brought forward against unidentified congressmen by four congresswomen. (24) While three of the congresswomen no longer served in Congress, the harassment occurred while they were in office. (25) Beyond allegations directed at specific members of Congress or particular members of their staff, dozens more allegations have been made by staffers declining to publicly identify the perpetrators by name. (26) These staffers disclosed that incidents of harassment occurred at the hands of both members of Congress and their senior aides. (27)
Despite these many allegations, it is difficult to get a sense of how frequently sexual harassment occurs on the Hill. The best resource available to get even a tentative feel for the frequency at which sexual harassment occurs within the halls of Congress seems to be the annual reports produced by the Office of Compliance (OOC). (28) These reports provide breakdowns of how many allegations of sexual harassment and discrimination are occurring each calendar year. The OOC reports for 2017 and 2016 indicate that seventeen and nineteen congressional employees initiated claims of sexual harassment and discrimination in each of those years, respectively. (29) These annual numbers should be concerning all on their own, however, they are even more alarming because of the well-known problem of underreporting when it comes to sexual misconduct. (30) The likelihood that the OOC reports significantly underrepresent the actual occurrence of harassment on the Hill is underscored by the findings of a CQ Roll Call survey of congressional staff in July 2016. The survey found that forty percent of female respondents believed sexual harassment to be a problem on Capitol Hill. (31) One in six of the respondents reported being personally victimized during her employment by the legislature. (32) Based on the number of female staffers employed by Congress and these survey results, it is quite likely that the OOC reports grossly understate the number of sexual harassment incidents occurring within the halls of Congress. (33)
While the nation began to question the CAA reporting procedure for congressional employees in the fall of 2017, a significant number of congressional staffers, either current or former, also spoke out against the pre-Reform Act reporting process. Less than one month after 'me too' arrived on the national scene, more than 1500 former congressional staff came together to sign a single letter encouraging Congress to take action and make meaningful change. (34) The signatories were not necessarily individuals representing themselves as survivors of sexual harassment or discrimination during their employment with the legislature. Rather, those who signed the letter were individuals urging reform due to a recognition that the problem of harassment is significant and the process for bringing claims forward under the CAA was "inadequate" and may have "actually [been] discourag[ing] victims" from coming forward. (35) This adds to the conclusion that the OOC reports fail to capture the depth of Congress's harassment problem: if so few actual reports are being made...