[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
PREVENTING SEXUAL HARASSMENT IN THE
CONGRESSIONAL WORKPLACE: EXAMINING REFORMS TO THE CONGRESSIONAL
ACCOUNTABILITY ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 7, 2017
__________
Printed for the use of the Committee on House Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on the Internet:
http://www.gpoaccess.gov/congress/house/administration/index.html
________
U.S. GOVERNMENT PUBLISHING OFFICE
31-448 WASHINGTON: 2018
Committee on House Administration
GREGG HARPER, Mississippi, Chairman
RODNEY DAVIS, Illinois, Vice ROBERT A. BRADY, Pennsylvania,
Chairman Ranking Member
BARBARA COMSTOCK, Virginia ZOE LOFGREN, California
MARK WALKER, North Carolina JAMIE RASKIN, Maryland
ADRIAN SMITH, Nebraska
BARRY LOUDERMILK, Georgia
PREVENTING SEXUAL HARASSMENT IN THE CONGRESSIONAL WORKPLACE: EXAMINING
REFORMS TO THE CONGRESSIONAL ACCOUNTABILITY ACT
----------
THURSDAY, DECEMBER 7, 2017
House of Representatives,
Committee on House Administration,
Washington, DC.
The Committee met, pursuant to call, at 10:01 a.m., in Room
1310, Longworth House Office Building, Hon. Gregg Harper
[Chairman of the Committee] presiding.
Present: Representatives Harper, Davis, Comstock, Walker,
Smith, Loudermilk, Brady, Lofgren, and Raskin.
Also Present: Representatives Byrne, Brooks, and Speier.
Staff Present: Sean Moran, Staff Director; Kim Betz, Deputy
Staff Director/Policy and Oversight; Katie Patru, Deputy Staff
Director; Cole Felder, Deputy General Counsel; Dan Jarrell,
Legislative Clerk; Erin McCracken, Communications Director;
Jamie Fleet, Minority Staff Director; Khalil Abboud, Minority
Deputy Staff Director; Eddie Flaherty, Minority Chief Clerk;
and Teri Morgan, Minority Deputy General Counsel.
The Chairman. I now call to order the Committee on House
Administration for purposes of today's hearing titled
``Preventing Sexual Harassment in the Congressional Workplace:
Examining Reforms to the Congressional Accountability Act.''
The hearing record will remain open for 5 legislative days
so members may submit any materials they wish to be included.
A quorum is present, so we may proceed.
I ask for unanimous consent that the Committee on Ethics
Chairwoman Susan Brooks, Representative Jackie Speier, and
Representative Bradley Byrne be afforded the opportunity to sit
on the dais and question all of our witnesses today.
Without objection, so ordered.
At the outset, I would like to thank all of our witnesses
for taking time out of what I know are very busy schedules to
be here. We are much appreciative of that.
First and foremost, let me reiterate, there is no place for
sexual harassment in our society, especially in Congress,
period. And one case of sexual harassment is one case too many.
The Speaker of the House, Paul Ryan, tasked this Committee
with heading up an extensive review on this issue, and we take
that responsibility very seriously. As Members of Congress we
must hold ourselves to a higher standard, a standard that
demonstrates that we are worthy of the trust placed in us by
the public, by our constituents, and by everyone in this
country.
Since our last hearing on November 14, additional accounts
of sexual harassment have surfaced, and questions about the
related settlements, both those authorized under the
Congressional Accountability Act and outside that act, have
been raised.
These issues suggest not only that it is time, but it is
appropriate for the Committee to review the policy goals of the
Congressional Accountability Act, review the processes set out
in the act, what we need to do to accomplish those policy
goals, and evaluate the reforms needed to accomplish our
collective goal, our bipartisan goal of zero tolerance.
The Congressional Accountability Act has not been
comprehensively reviewed since its enactment in 1995. The House
took an important step forward last week in updating its
policies and procedures by passing H. Res. 630. This resolution
requires all House Members, officers, employees, including paid
or unpaid interns, fellows and detailees to complete
antiharassment and antidiscrimination training every year, as
well as required all House offices to post a notice of employee
rights and protections under the Congressional Accountability
Act.
The logical next step is to conduct a closer review of the
Congressional Accountability Act to identify and evaluate what
reforms are needed to ensure that we are protecting all
congressional employees and workplaces.
This hearing plays an important role in our Committee's
extensive review, and the insight from our witnesses today will
help inform us and help us make those policy choices.
I want to take this opportunity, again, to thank our
Speaker, Paul Ryan, for tasking our Committee with this
important issue. I would also like to thank the Ranking Member,
Bob Brady, for his commitment to this issue and having the
House work in a bipartisan matter. Not only is it essential, it
is what people expect.
I look forward to hearing from each of our witnesses today.
And with that, I will yield to the Ranking Member, Mr. Brady.
Mr. Brady. Thank you, Mr. Chairman. And, Mr. Chairman,
thank you for calling this hearing today and for the bipartisan
manner by which you are approaching this issue.
I also want to thank our witnesses, especially from the
House Employment Counsel and the Office of Compliance. I
appreciate the professional and nonpartisan way you approach
your jobs, and I thank you for being here for a second time.
The Congressional Accountability Act needs to be reformed.
Since our last hearing, I have met with my colleagues and
experts to better understand how we can improve this
legislation. But most importantly, I have met with survivors of
sexual harassment and assault.
Mr. Chairman, we need to improve this process. But most
importantly, we need to change the culture of this place, and
that change must start with us. I hope this hearing helps us
find some agreement on what we must do and help us better
understand how we can reform the Congressional Accountability
Act and give victims more confidence in the process and justice
for the terrible experience that they have endured. We owe it
to our employees and the American people to get this right.
Mr. Chairman, I look forward to hearing from our witnesses.
And I yield back the balance of my time.
The Chairman. Thank you, Mr. Brady.
Does any other member wish to be recognized for the
purposes of an opening statement?
The chair will now recognize the gentlelady from Virginia,
Mrs. Comstock, for the purposes of an opening.
Mrs. Comstock. Thank you, Mr. Chairman. And, again, I
appreciate your leadership and Ranking Member Brady and the
bipartisan, bicameral nature with which we are approaching
this. And I do really believe that this is a watershed moment,
and we need to take this opportunity to really fundamentally
change how we address this in Congress, but also beyond.
I thank my colleagues, Jackie Speier and Bradley Byrne, who
are also joining us today, and I believe Susan Brooks,
Chairwoman of the Ethics Committee, will be joining us, too.
Thirty years ago, a young woman, Dorena Bertussi, was the
first victim of sexual harassment who brought this forward,
highlighted this issue against a Member of Congress and
prevailed in her case. She is here today and I want to welcome
here and once again thank her for her courage and her
perseverance and how gracefully she handled a terribly
difficult situation then.
And I think it is important that now, even though it is far
too long, and it shouldn't have been this long, that we do
right by Dorena, but all the other people who are the people
behind many of the headlines that we are seeing right now.
We see often the offenders and certainly we want to know
about sexual predators because we know sexual predators cross
all party lines, their actions transcend any party labels.
But we want to make sure that the victims are put first and
foremost here, that we provide an advocate for them, whether it
is a counsel or an ombudsman or some type of level playing
field so the victims feel that we are protecting them, but
also, more importantly, that we actually are, and that we make
this a much more fair system, and also in that arena, how we
address the nondisclosure agreements.
We know the nondisclosure agreements are often preventing
us from really knowing what is going on there, whether it is
allowing people in the past here in Congress to be able to come
forward without any fear of violating their nondisclosure
agreements or how we address it in the public sector in
general.
I know there is legislation on that front too. So I think
that is an important issue that we will need to address going
forward.
So thank you for the opportunity here to have these expert
witnesses. And particularly the EEOC did a report last year,
which I found very helpful in terms of they were talking about
changing the culture and how we do that by permeating from the
top down, from the bottom up, and that this really needs to be
something where we are all engaged and involved.
So thank you for the opportunity today to address this
important issue.
The Chairman. The gentlelady yields back.
The Chair will now recognize the gentleman from Maryland,
Mr. Raskin, for the purposes of an opening statement.
Mr. Raskin. Mr. Chairman, thank you very much, Mr. Brady,
thank you both for convening this very important hearing. And I
want to thank our colleagues, Representative Speier, who has
been in the forefront of the new changes that we are making,
Congressman Byrne, and I think, also, Representative Brooks is
coming or on the way.
We are in the middle, Mr. Chairman, of a dramatic culture
shift that is a tribute to the women's movement in the United
States and also to the strong political democracy that it is
part of here in our country.
The public uproar over sexual harassment and sexual assault
began in other places. It has rocketed across America. It came
to the Halls of Congress and it has shaken this institution to
the core.
But I am pleased that this is a moment when we are
restating our common bipartisan commitment to zero tolerance
for sexual harassment into a safe, dignified, and equal
workplace for everyone who comes to serve Congress. And we are
doing this on a bipartisan basis. We are doing this on a
comprehensive institutional basis.
And I think that is the value that is being vindicated.
This is a culture shift, much like ones Congress has gone
through before. It used to be that lobbyists could give Members
of Congress gifts and take them out for dinner and on fancy
trips. And then there was a public uproar, a scandal. A rule
has passed that banned it. And now it is unthinkable in this
culture.
It used to be that Members of Congress could pocket money
from their campaign funds when they retired. And there was a
scandal, public uproar, a rule against it, and it is
unthinkable that anybody would do that today.
We simply need to make sexual harassment something that is
unthinkable, that just wouldn't be done within these Halls.
So that is the value. I think everybody agrees with it.
What we need is a process that implements that value. And of
course, the devil is in the details. We need rules that will
strongly deter sexual harassment, and we need a process in
place that will swiftly and fairly punish sexual harassment,
address the situation of victims, and get to the facts of cases
that are controverted until we really can move to a time when
sexual harassment is simply no more in this body.
But I am glad that we are all part of this, we are going
through this process, which is obviously painful for some
members of this institution. But we have to leave sexual
harassment behind the way we have left other sordid practices
behind. And I am proud that the House Committee on
Administration is playing a leadership role there and that we
have so many colleagues who have come to join us in that
project.
I yield back to you, Mr. Chairman.
The Chairman. The gentleman yields back.
Anyone else have an opening statement?
The Chair will now recognize Ms. Speier for the purposes of
an opening statement.
Ms. Speier. Mr. Chairman, thank you. And I, too, applaud
your efforts and the bipartisan manner in which we have
undertaken this issue. To Ranking Member Brady, to my colleague
Mrs. Comstock, and to my colleague, Mr. Byrne.
I think we are at a watershed moment, as you said, Mr.
Chairman. You know, I have been working on this issue for a
very long time, long before I came to Congress, as a matter of
fact. In the mid-1990s, I was chair of the Women's Caucus in
the State legislature, and we had a hearing on this issue. And
we brought in Dr. Frances Conley, who was the first tenured
neurosurgeon in the United States, and she was a professor at
Stanford University. And she wrote a book called ``Walking Out
on the Boys,'' and talked about the horrific environment in
which she had to work as a professional in academia and as a
medical professional.
Of course, the Anita Hill hearings of 1992 was also a
watershed issue and time when it was called the Year of the
Woman. Well, it was 1 year, and that, frankly, was not enough.
So what we have experienced over the last many decades is
that there has been a return to the status quo, which is
woefully unacceptable. We all recognize now that the Office of
Compliance is mandated to do things that really hurt the
victim. It is not that they do it by choice, it is because that
is how it is mandated in the Congressional Accountability Act.
H.R. 4396, which some of you have cosponsored, it now has
over 110 cosponsors, it is Republicans and Democrats alike, it
is the ME TOO Congress Act, which attempts to do the job of
reforming the Office of Compliance. I don't think it goes far
enough.
And as we continue to talk about this issue, I think we
need to recognize that probably the House Ethics Committee or
the House Administration Committee is not the venue to which
investigations should be sent when a complaint is filed about
sexual harassment. There needs to be an independent
investigation.
Now, some have said: Well, how about the due process? And I
would say, you know, there is due process here, and if we allow
this independent agency or entity to do the review and make a
recommendation to the House, that that would provide it.
I do think that we have to recognize that behavior like
this is normally not just one incident. Normally it is a
pattern of behavior. And I think we have got to make sure that
however we move forward, that we are victim-centric. We have to
recognize that many of these victims, one of whom sat in my
office crying, said to me going through this process was worse
than the sexual harassment itself. Shame on us for not having
addressed this sooner.
But I want us to remember a young woman who came to this
building, who worked in a number of offices. And it was in her
second office where she filed a complaint for sexual
harassment.
She is no longer here. Her career was over. She was told
her career would be over if she filed a complaint. And she
hasn't worked since.
We have got to make sure that the victims have the
opportunity to stay here and work. They have a right to be able
to work in these hallowed halls. Just because they were pawed
by a colleague of ours or by a staff member is not a reason to
then, if they file a complaint, to ostracize them.
So as we talk about this, I hope that we redouble our
efforts to make sure that we are protecting the victim and that
we are making sure there is a soft landing for them so they can
continue to pursue a career in public service.
With that, I yield back.
The Chairman. The gentlelady yields back.
The Chair will now recognize the gentleman from North
Carolina, Mr. Walker, for purposes of an opening statement.
Mr. Walker. Thank you, Mr. Chairman. I appreciate the
opportunity to be part of this Committee. And I think it says
much that the Speaker has chosen your leadership and this
Committee to handle a sensitive, but very important matter.
I think about the bravery of all the victims that have
stepped forward. I believe Congresswoman Speier is exactly
right, there is a pattern to this behavior, certainly much of
the time. But it usually takes a champion or someone to step
forward to begin to break through some of that, who is willing
to come out. And we actually have one of those leaders in this
courageous movement, Gretchen Carlson, with us today. So I just
want to acknowledge her bravery over the last couple years in
being a leader in this movement.
With that, I yield back, Mr. Chairman.
The Chairman. The gentleman yields back.
Any other person wishes to be recognized for the purpose of
an opening statement?
I would now like to introduce our witnesses.
First, Victoria Lipnic was appointed as Acting Chair of the
U.S. Equal Employment Opportunity Commission by President Trump
on January the 25th, 2017. Before becoming the Acting Chair,
Lipnic served as the Commissioner.
Acting Chair Lipnic has extensive experience working with
Federal labor and employment laws, holding positions such as
U.S. Assistant Secretary of Labor for Employment Standards and
Workforce Policy Counsel to the Committee on Education and the
Workforce in the U.S. House of Representatives.
Acting Chair Lipnic has also worked in the private sector
as counsel to the firm Seyfarth Shaw LLP in its Washington,
D.C., office.
We welcome you, Ms. Lipnic.
I would also like to introduce Susan Tsui Grundmann,
Executive Director, Office of Compliance. Ms. Grundmann serves
as Chief Operating Officer for the Office of Compliance, which
was established to ensure the integrity of the Congressional
Accountability Act of 1995 through programs of dispute
resolution, education, and enforcement.
Ms. Grundmann also works with the Office of Compliance
board of directors to advise Congress on needed changes and
amendments to the Congressional Accountability Act.
Previously, Ms. Grundmann served as the Chairman of the
U.S. Merit Systems Protection Board, enforcing Federal merit
systems in the executive branch. She was confirmed to that
position by the U.S. Senate in 2009.
Ms. Grundmann has more than 20 years of professional
experience in litigation and in advising and educating clients
in labor and employment matters. She began her legal career as
a law clerk to the judges of the 19th Judicial Circuit of
Virginia.
Welcome, Ms. Grundmann.
Ms. Gloria Lett currently serves as Counsel to the Office
of House Employment Counsel. Prior to serving as Counsel, Ms.
Lett was a corporate attorney handling employment law issues
and litigation for a large telecommunications company.
She also served as an Assistant Corporation Counsel
representing the District of Columbia in civil litigation, as a
Special Assistant United States Attorney for the District of
Columbia handling criminal prosecutions, and as an attorney for
the Equal Employment Opportunity Commission.
We welcome you, Ms. Lett.
Dan Crowley has served as counsel to the firm K&L Gates in
the firm's Washington D.C. office since 2008. Prior to joining
K&L Gates, for 5 years Mr. Crowley was chief government affairs
officer at the Investment Company Institute, the national
association of the mutual fund industry.
Previously, Mr. Crowley was vice president and managing
director of the Office of Government Relations at NASDAQ Stock
Market, Inc.
Mr. Crowley's earlier employment includes Counsel to this
Committee, the Committee on House Administration; also the
Committee on House Oversight and the office of Speaker Newt
Gingrich.
We welcome you, Mr. Crowley.
The Committee has received each of your written
testimonies, and you will each now have 5 minutes to present a
summary of that submission. Of course, most of you have
testified before or seen that, so you have the clock in front
of you that will help you keep up with your time. It will be
green for 4 minutes, then it will turn yellow for the last
minute, and red means that your time has expired.
So, the Chair now recognizes our witnesses for the purpose
of the opening statement, beginning with EEOC Acting Chair
Lipnic. Thank all four of you for being here today.
STATEMENTS OF VICTORIA A. LIPNIC, ACTING CHAIR, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION; SUSAN TSUI GRUNDMANN,
EXECUTIVE DIRECTOR, OFFICE OF COMPLIANCE; GLORIA LETT, COUNSEL,
OFFICE OF HOUSE EMPLOYMENT COUNSEL; AND DANIEL F.C. CROWLEY,
PARTNER, K&L GATES LLP
STATEMENT OF VICTORIA A. LIPNIC
Ms. Lipnic. Thank you so much.
Chairman Harper, Ranking Member Brady, Members of the
Committee, good morning and thank you for the opportunity to
testify before you today about a subject that for weeks now has
consumed headlines--sexual harassment--but certainly something
that we at the EEOC have known to be far too common and which
is only now being fully brought into the light.
Since early October, when news of what was then simply
known as the Weinstein scandal broke, the issue of sexual
harassment has dominated the Nation's collective conversation.
I am pleased to add my voice to that dialogue this morning.
By way of introduction, as the chairman said, I am Vicky
Lipnic. I am the Acting Chair of U.S. Equal Employment
Opportunity Commission. I have served as a Commissioner of the
EEOC for the last 7\1/2\ years, and President Trump designated
me Acting Chair in January of this year.
When I first joined the EEOC in 2010, I was struck by the
number of harassment complaints the agency would see every
year, the cases we would litigate, and the egregious behaviors
we were addressing on behalf of victims of harassment.
I had a conversation with our then-Chair, the late Jackie
Berrien, who asked me to dig deeper into this issue. I spoke
with every one of our district directors around the country and
each of our regional attorneys. I was astonished but also
deeply concerned that to a person I was told the same thing.
The EEOC could, if it wanted to, have a docket consisting of
nothing but harassment cases generally and sexual harassment
cases specifically.
This fact and a concern on a leadership level with the
persistence and pervasiveness of the harassment claims we at
the EEOC continue to see led to the establishment of the Select
Task Force on the Study of Harassment in the Workplace, an
outside group of experts that the EEOC convened following a
public Commission meeting on workplace harassment in January
2015. I was honored to co-chair the select task force alongside
my Democratic colleague, Commissioner Chai Feldblum, who joins
me in the hearing room today.
The goal of creating the task force was to see if we could
find new, innovative ways to address workplace harassment. We
wanted to speak to and reinforce the work of prevention, not
just address as an enforcement agency viability issues. The
task force included members of both the management and
plaintiff's bar, organized labor and trade associations,
academics, including social scientists, compliance experts, and
worker advocates.
Our work concluded in June 2016 with the release of the
final co-chair's report, almost 30 years to the day after the
United States Supreme Court handed down its landmark decision,
Meritor Savings Bank v. Vinson, in which it held for the first
time that sexual harassment was a form of unlawful sex
discrimination. We took away a number of top-line lessons
learned through the study of the task force which I would take
this opportunity to share.
First, workplace harassment remains a persistent problem.
Almost fully one-third of the approximately 90,000 charges
received by the EEOC in fiscal year 2015 included an allegation
of harassment. This includes charges of harassment on the basis
of sex, race, disability, age, ethnicity, national origin,
color, and religion.
Second, workplace harassment, particularly sexual
harassment, too often goes unreported. In fact, the least
common response to harassment is for an employee to take some
formal action, either to report the harassment internally or
file a formal legal complaint. These employees may not report
harassing behavior because they fear disbelief or inaction on
their claim, blame, or social or professional retaliation.
Third, an effective antiharassment effort must start at the
top, and leadership and accountability are crucial. This cannot
be overstated. Effective prevention efforts and workplace
culture in which harassment is not tolerated must start at the
highest level of management and an organization must have
systems in place that hold employees accountable for this
expectation.
Finally, training must change. Much of the training done
over the last 30 years has not worked as a prevention tool. It
has been too focused on simply avoiding legal liability. We
believe effective training can reduce workplace harassment, but
even that cannot occur in a vacuum. It must be part of a
holistic culture of nonharassment.
And one size does not fit all. Training is most effective
when tailored to the specific workplace and to different
cohorts of employees.
I understand that the Committee is contemplating changes to
procedures designed to address workplace harassment in the
legislative branch. I am happy to offer my thoughts on these
proposals.
In the interest of giving the Committee full background, my
written testimony includes a lengthy discussion of the EEOC's
procedures with respect to discrimination charges in both the
private and Federal sectors.
I would also commend to the Committee a set of promising
practices for preventing and combating workplace harassment
that the EEOC recently published on our website and which have
been provided to Committee staff.
In closing, I reiterate a key finding of our task force
report: No system of training, monitoring, or reporting is
likely to succeed in preventing harassment in the absence of
genuine and public buy-in from the very top levels of an
organization. We can and we must do better in all of our
workplaces.
I am pleased to answer any questions you may have. And as
you said, Mr. Chairman, I am a former House staffer myself, so
I am very familiar with working in the legislative branch.
Thank you.
[The statement of Ms. Lipnic follows:]
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The Chairman. Thank you very much, Ms. Lipnic.
The Chair will now recognize Ms. Grundmann for the purposes
of her opening statement.
You are recognized for 5 minutes.
STATEMENT OF SUSAN TSUI GRUNDMANN
Ms. Grundmann. Good morning, Mr. Chairman, Ranking Member
Brady, and distinguished Members of this Committee and guests.
On behalf of the Office of Compliance and our entire board of
directors who join me here today, thank you for the opportunity
to discuss our process and our concerns. We support and commend
the efforts of this Committee and the Members of Congress for
mandating workplace rights training for everyone and notice
posting of those rights.
Over the last 6 weeks we have seen a triple-digit-
percentage increase in the number of requests for in-person
sexual harassment prevention training, a triple-digit-
percentage increase in the number of staffers enrolling in our
online training module, twice as many visits to our online
information about how to report sexual harassment, a 12 percent
surge in the number of people subscribing to our social media
platforms to receive updates on rights and protections. And I
am happy to report that posters notifying employees of their
rights are flying off our shelf, with reorders arriving late
last week.
These numbers tell us something. They mean that people are
finally taking seriously a problem about which we have been
sounding the alarm and have been proactively working to combat
for years through our outreach and education program.
However, mandatory training and posters are the floor, not
the ceiling. And even though Chair Lipnic notes in her
statement that the training in the last 30 years has not worked
as a prevention tool, we have over 20 years of nonmandatory
training, and here we are today.
To reach the ceiling, not only should our process change,
which we hope to discuss with you today, but as the chairman
noted previously, publicly and forcefully, that the culture
must change.
And that cultural shift includes not just changes to our
process, but a shift, a policy, a sexual harassment prevention
policy that is currently not mandated under the law. That
policy should include examples of what constitutes harassment,
reporting procedures, standards of conduct, investigations at
the appropriate level, and accountability.
This discussion is proof that the members of this Committee
in this watershed moment are focusing on an issue and
validating our efforts to help build a strong culture of
collegial respect.
Let me note, media reports have portrayed us as opaque,
Byzantine, shrouded in secrecy. And while we understand that
these comments are directed at our process and not to us as
individuals, these comments, nonetheless, sully the reputations
of the 20 women and men who faithfully report to our office
every day for work, including our occupational health and
safety inspectors who examine the Capitol Grounds for hazards
in public access; including our Deputy Executive Director, who
trained 500 people in person over the last 6 weeks, and not all
at once, but in ones and twos and tens; and including our only
alternative dispute resolution counselor, who meets with
employees at the beginning of the process to hear their
stories, to advise them of their rights, and to comfort them in
their distress.
This is the process that Congress designed in 1995, a
process that not only demands confidentiality, but strict
confidentiality under the law, a system we have been tasked to
administer, a process that Congress is now seeking to change,
and a change that we welcome. And we hope that we will play an
integral role.
Many call this a moment of reckoning. We call it a moment
of clarity, a clarity with respect to not what we do, but what
we do under the Congressional Accountability Act.
And as you deliberate, we ask that you bear in mind that
this is a new day, not just for Congress, but throughout the
legislative community. The changes that you propose and
implement should and must apply beyond the halls of Congress
and to our entire legislative community.
During this time, our office stands ready and we will roll
up our sleeves to assist you in the important work ahead.
Thank you. I look forward to your questions.
[The statement of Ms. Grundmann follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Ms. Grundmann, for your testimony.
We look forward to asking you some questions soon.
And we will now recognize Ms. Lett, Counsel for the Office
of House Employment Counsel.
Welcome, Ms. Lett.
STATEMENT OF GLORIA LETT
Ms. Lett. Good morning. I want to thank the Committee on
House Administration for inviting me for a second time to give
testimony on the issue of preventing sexual harassment in the
workplace. This testimony will supplement the written testimony
that I submitted to the Committee earlier this week.
I want to start by referring to an opinion piece I read on
the cover of The Washington Post yesterday. It was entitled,
``I Was Sexually Harassed. Question My Story.'' It was written
by a woman named Karissa Fenwick.
In the article, Ms. Fenwick tells her story of how she was
sexually harassed. She goes on to say, ``Question my story
because we need to examine our views about sexual harassment
and misconduct.'' And, she said, ``By their nature, harassment
complaints are characterized by gray areas and few witnesses.
Victims and perpetrators are both flawed and sympathetic.''
I thought it was important to read Ms. Fenwick's language
because it captures, better than I probably could ever do, the
challenges my office faces in our role as counsel for the
employing offices on these issues. I read her words to mean
that there has to be discussion and understanding around these
issues. And when I say ``these issues,'' I mean allegations of
discrimination.
Sexual harassment is a form of unlawful discrimination,
just like discrimination based on race, color, religion,
national origin, age, and disability.
I also read her words to mean that automatically
characterizing any questions about the basis for sexual
harassment allegations as victim blaming is counterproductive
to rooting out sexual harassment, and I agree. Part of the role
of my office is to question employees' claims of
discrimination, including sexual harassment, and to do so is
not victim blaming.
On a personal note, like most women in this country, I have
experienced sexual harassment in the workplace. It occurred
during the early part of my employment, and my way of dealing
with it was to leave a job that I liked.
As a woman of color, I have also experienced race
discrimination in the workplace. I worked for a private company
where a White manager brought in a whip, which he prominently
displayed in his office. And when questioned about it, he said
he wanted to, quote, unquote, motivate the black employees.
I believe these and other experiences have made me more
sensitive to allegations of discrimination, not less. And I am
probably a better lawyer for it because I understand the
perspective of both the employee and the employer. I also try
to lead by example as the head of my office.
Posing difficult and challenging questions to employees,
most often through their lawyers, is necessary to assess
whether sexual harassment has occurred and correcting any
inappropriate behavior.
On the other side of that equation, when we are contacted
about these issues, which unfortunately does not happen in all
instances, and our clients tell us that they have done
absolutely nothing wrong, we question that, too. We are not in
the business of covering up unlawful behavior, but rather, we
examine those gray areas that I mentioned earlier by conducting
thorough investigations and then working with our clients to
figure out how to address the concern both legally and
practically.
The congressional workplace is a microcosm and in many ways
reflects workplaces across the America. Yes, sexual harassment
occurs in the Congress, just like it does in other workplaces,
and while the more serious allegations of sexual harassment,
and borderline criminal behavior in some instances, tends to
receive the most attention from the media, those types of
allegations are not the norm on Capitol Hill, at least not in
my office's collective experience. And, of course, I recognize
that this kind of behavior does go unreported, so that may
account for some of that.
I want to try to answer the question of what has worked to
address the concern about sexual harassment. I wish there was
an easy answer, but there is not. Although it is not a panacea,
I believe mandatory in-person training is very helpful. I have
trained quite a few Members on this issue lately, and the
response has been encouraging. I am hopeful that the training
has meant that Members are talking directly with their
employees and telling them that they should come forward with
concerns without fear of retaliation.
Employees won't always believe it, but this is still a
positive step and it might help to change a perception held by
some that these issues should not be reported.
I will say that training does work effectively, but it
doesn't work effectively when Members schedule it around or
near votes.
While I am convinced that no amount of training will fix
truly egregious conduct, that will require other mechanisms of
accountability, again, it is a step in the right direction.
In closing, I want to thank the Committee again, and I
welcome your questions.
[The statement of Ms. Lett follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Ms. Lett.
The Chair will now recognize Daniel Crowley for 5 minutes
for the purposes of an opening.
Thank you.
STATEMENT OF DANIEL F.C. CROWLEY
Mr. Crowley. Thank you. Chairman Harper, Ranking Member
Brady, and Members of the Committee, thank you for the
opportunity to testify today.
My name is Dan Crowley. I am a partner at the law firm of
K&L Gates. I note at the outset that my comments are my own and
do not represent the views of the firm, my colleagues, or any
firm clients.
I had the privilege of serving as counsel to the Committee
under Congressman Bill Thomas from March 1991 through early
1998, a period that straddled the Republican revolution of
1994. The Congressional Accountability Act was the first law
enacted by the new Republican Congress in 1995.
However, it is important to note that these are not
fundamentally partisan issues. Rather, they are institutional
in nature. In fact, the Committee's consideration of this
legislation began under the previous Democratic majority.
The basic principles that in the past guided the Committee
in this area are, one, if a law is right for the private
sector, it is right for Congress; two, Congress will write
better laws when it has to live by the same laws it imposes on
the private sector and executive branch; and three, the
separation of powers embodied in the Constitution must be
respected.
The challenge faced by the Committee more than two decades
ago was to reconcile these principles. At that time it was felt
that the procedures established to provide a means for redress
of grievances by employees must take into consideration that in
the congressional context allegations can be career-ended, even
if they subsequently prove to be untrue.
The key constitutional provision at issue is the Speech or
Debate Clause, which has repeatedly been interpreted by the
U.S. Supreme Court as providing immunity for Members of
Congress for not only speech or debate in either House, but
also for other matters that the Constitution places within the
jurisdiction of either House. Moreover, lower courts have ruled
that Speech or Debate Clause immunity attaches to employment
decisions by Members in certain circumstances.
Against this constitutional backdrop, the Committee sought
to establish a procedure to address violations of the Federal
labor and employment laws by Members of Congress. Toward that
end, the CAA provided for the creation of the Office of
Compliance within the legislative branch and charged it with
responsibility for promulgating implementing regulations,
conducting studies, and, importantly, carrying out a program
for educating employing authorities.
Perhaps the most significant provisions in the CAA provide
for a right of limited judicial review. However, the CAA was
carefully crafted to avoid waiver of Speech or Debate Clause
immunity. For example, Section 502 provides: ``It shall not be
a violation of any employment discrimination provision to
consider the party affiliation, domicile, or political
compatibility with the employing office.'' In other words, such
factors provide an affirmative defense to allegations of
discrimination.
As described in the Committee report: ``This provision and
the exemptions listed therein recognize the special nature of
employment in Congress by allowing Member offices, as well as
Committee and leadership offices, to incorporate these three
factors in employment decisions without prejudice to the
legality of such decisions. ``The political compatibility
exemption, while subject to broad interpretation, is intended
to provide Members, Committee offices, and leadership offices
with more flexibility than is available under the party
affiliation and domicile exemptions.''
The jurisprudence since enactment of the CAA makes clear
that in employment cases in which Speech or Debate Clause
immunity is asserted, it will be up to the courts to determine
whether the privilege applies on a case-by-case basis. I note
that notwithstanding the CAA, the Committee on Ethics has broad
discretion to discipline Members for violating standards of
official conduct, which may provide another meaningful avenue
to explore as the Committee of considers solutions in this
area.
In conclusion, the Congressional Accountability Act of 1995
is legislation that attempted to reconcile Member intent to
subject themselves to the same laws they impose on others,
consistent with the legitimate constitutional protections
afforded by the Speech or Debate Clause.
After more than two decades, it is important to review the
CAA as well as the standards of official conduct to determine
whether updates are necessary or appropriate. These are
complicated issues that remain difficult to resolve.
That said, the steps the Committee took more than two
decades ago mean that you now have experts, including my fellow
panelists, who are available to ensure that employing
authorities are appropriately advised.
Finally, I believe today, as I did then, that a commitment
to taking prompt corrective action, up to and including
termination, must be unequivocal.
Thank you again for inviting me to testify today. I would
be happy to respond to any questions you may have.
[The statement of Mr. Crowley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Crowley.
We now have time for Committee Members to ask questions of
the witnesses. Each member will be allotted 5 minutes to
question a witness or witnesses. And I will now recognize
myself for 5 minutes.
And I will start, if I may, with you, Ms. Lipnic. I
certainly appreciate you being here today and the work that you
have done in this area of sexual harassment and antiharassment
generally.
I want to focus on your work for a moment as co-chair of
the Select Task Force on the Study of Harassment in the
Workplace. The EEOC has created a document entitled ``Promising
Practices for Preventing Harassment'' identifying five core
principles around which prudent practices are identified.
Can you give us a little insight as to what practices would
constitute an effective sexual harassment education program?
And in your opinion, of that, what have you seen that works or
doesn't work?
Ms. Lipnic. Certainly. And I would tell you, Mr. Chairman,
that the promising practices that are on our website are
completely derived from our task force report, in the
recommendations that we made in the task force report.
So there are five core principles that we think are
important for preventing harassment. And again, our task force
was focused on prevention. At our very first meeting of our
task force, we all agreed that we all know what is legally
actionable harassment, but that is not working as a prevention
tool. So we focused on five things.
One is there has to be committed and engaged leadership,
there has to be consistent and demonstrated accountability
within an organization, there has to be strong and
comprehensive harassment policies in place, trusted and
accessible complaint procedures--and I would emphasize trusted
procedures--and regular and interactive training that is
tailored to the audience and to the organization.
And as I said earlier, we were very critical of training,
much of the training that has taken place and developed over
the last 30 years, as a prevention tool. But we do not by any
means reject training as a tool. We believe that training is
absolutely necessary. And what Ms. Lett referred to, in
particular, and she said in-person training, can make a big
difference.
So we have a number of recommendations about training. That
it has to be customized to that particular workplace. The
leadership of the organization has to show up for it and
demonstrate that they are interested in it. It has to give
examples to that particular workplace.
And it is very important in training that individuals in
the workplace focus on training, not even so much as what is
harassment and what isn't, what are the procedures by which
people can report, they know who to go to, they know what the
consequences will be, what will happen. That is an important
component of the training as well.
The Chairman. So this is not going to be effective or as
effective unless the person at the top----
Ms. Lipnic. Absolutely.
The Chairman [continuing]. Says this is going to be the way
that it will be.
Ms. Lipnic. Yes. And I have spoken on this in many places.
And you will oftentimes here, in particular, outside counsel
who are called in to do trainings at corporations, and the head
of the business unit or the organization will show up for the
very beginning of the training and say, ``I want you all to pay
attention to this,'' and then leave.
And so, you know, the leadership of the organization has to
be as committed to it and as engaged in that training and send
the message to the individuals who are receiving that training.
The Chairman. Thank you very much.
If I could now, Ms. Lett, I would like to ask you a couple
of questions in the time that I have left.
Would you describe OHEC's role in the counseling or
mediation phases? And specifically, is OHEC retained by an
employing office when counseling is initiated or when mediation
begins, or does OHEC already have an attorney-client
relationship with the House office prior to being notified of a
CAA claim?
Ms. Lett. I am going to give you a lawyerly response, and
that is, it depends. In many instances we will know when a
complaint is coming down the pike, and that is because the
employing office has contacted us. There has been an employee
who is dissatisfied with something that is going on in the
workplace. They have attached it to a discriminatory motive.
And we work with the office to try to address the situation.
Sometimes an employee will have an employment performance
issue. They have been put in a performance improvement plan.
That hasn't worked out. The employee is terminated. And so we
work with the office through that entire process and anticipate
that when the employee loses his or her job that they are going
to go to the Office of Compliance.
We anticipate that. We don't know when someone has gone to
the Office of Compliance initially for the counseling phase,
because that is confidential unless the employee waives it.
When mediation is requested, then we would be notified
automatically. Again, we might know about that ahead of time
that it is coming down the pike or for the first time when we
get the notice of mediation. And of course, at the mediation
phase we represent the employing office and attempt to resolve
the matter at that point.
The Chairman. Okay. Thank you very much. My time has
expired.
The Chair will now recognize Mr. Brady for 5 minutes.
Mr. Brady. Thank you, Mr. Chairman.
For Gloria Lett, of all the cases you handle, how much of
your work is focused on sexual harassment?
Ms. Lett. I anticipated that question. And I have a list
here in terms of the number of cases and the categories in
which they occur. We typically see mostly retaliation cases
because when employees file claims they always put in a--well,
always--they routinely will include a retaliation claim.
Followed by retaliation is the Americans with Disabilities
Act claims, race claims, Fair Labor Standards Act claims, age,
Family and Medical Leave Act. And sex discrimination, gender
discrimination cases come in at about the same rate. It is
followed by sexual harassment claims, pregnancy claims,
national origin, and military discrimination claims come at
about the same rate. And then finally, claims based on color.
Mr. Brady. Do you support eliminating the cooling-off
period?
Ms. Lett. I don't have a strong position on that one way or
the other. My only caution about eliminating that 30-day period
is that oftentimes we do settle cases during that period. So it
would take away another opportunity to possibly resolve a case
before a party goes directly into litigation.
Mr. Brady. In your advocacy for employment offices, do you
find that just your engagement, the engagement that you are
engaged with, changes office behavior in the future?
Ms. Lett. I think it is difficult for us to know to a
certainty whether that is happening, but it has been reported
back to us that when there has been an incident of some kind or
some allegation of discrimination and an office speaks with us
and tries to take appropriate action, we do action items,
after-action items with the office.
That might involve training for a particular individual. It
might involve training for the entire staff. It might mean, in
some instances, and not all House employing offices have
written policies, so it might mean sitting with them, adopting
those policies, rolling those policies out with the employees,
and having conversations going forward.
So I do think that there is a lot of positive that comes
out of some of these situations.
Mr. Brady. Thank you.
And for Mr. Crowley, thank you for your service on the
Committee, and I understand you worked with my former counsel,
Charlie Howell.
Mr. Crowley. Yes, sir.
Mr. Brady. Who was a real gift to the members of this
Committee in drafting the CAA.
Why did Congress exclude the Library of Congress from some
of these protections? Was that a mistake? And should we fix
that and include now the Library of Congress?
Mr. Crowley. You know, Congressman, I have to tell you that
my recollection of these issues is now 22 years old, and so I
don't remember every discussion we have.
Mr. Brady. I can appreciate that, sir.
Mr. Crowley. Yeah. I do recall a number of conversations
involving the Library, including whether the police forces
ought to be unified. I don't remember the specific discussion
about the Library, although I think the answer might be, and I
would defer to my colleagues, that they were already covered to
a certain extent under Federal law, if I am not mistaken.
Mr. Brady. Yes?
Ms. Grundmann. Perhaps I can provide a little insight. The
Library of Congress does have its internal personnel system,
but that system is entirely internal. There is a hearing
process in the Library of Congress, but the hearing officer's
decision is merely a recommended decision. It must be forwarded
to the Librarian, where she can either accept or reject that
decision.
Mr. Brady. Do you think we should include the Library of
Congress in this ongoing hearing and discussion and maybe a
bill?
Mr. Grundmann. We do.
Mr. Brady. Thank you.
Ms. Lipnic, in the June 16 report you write about the risk
factors in the workforce. Among them are many young workers in
offices with significant power disparities. Congress is
obviously a dramatic example of both of those risk factors. We
passed a resolution focused on training recently, but no one
believes that training is enough.
And this hearing is about improving our laws, and that is
important, but it is also not enough. We really need to change
the culture.
So based upon your experience, beyond providing training
and changing laws, what other work can we do to change that
culture?
Ms. Lipnic. Thank you, Mr. Brady.
One important point that I think the Committee should
consider as you are looking particularly at revising the
Congressional Accountability Act, and I would look to the
testimony from Congresswoman Speier from your November hearing:
There is a difference between what immediate action has to be
taken when someone is concerned and complains that they are
being sexually harassed versus what is all of the process that
the Office of Compliance deals with and the House Employment
Counsel when you are looking to is there liability.
And so as Representative Speier said, you have to be
concerned about what is happening to that person who has
complained about it when she is still sitting there in that
workplace.
So I would urge you to sort of bifurcate your thinking on
this and understand that that immediate action and that
investigation that has to take place, which I think that the
House Employment Counsel, I understand from the testimony, does
a lot of that, you should consider how detailed can you be and
how can you instruct your work environment as to how you want
to deal with those immediate issues of harassment.
Think of harassment claims different from other types of
discrimination claims. So it is one thing to allege you did not
get promoted to a particular job in an office based on your
sex. That is very different than a harassment complaint and a
harassment claim.
And so the immediate investigation that has to take place,
which may be referred to the House Employment Counsel's office,
or maybe the Office of Compliance does that, I would urge you
to think about what is that process and what is that type of
corrective action that is taken immediately.
That, again, is very different from all of the other
process that is in place that determines is there liability
here. So that is one thing that I would urge you to think
about.
And your focus on culture is very much what our select task
force spent a great deal of time on. And there are a number of
things that will influence a culture, again, including what is
the message that is being sent from the top and is the
leadership of the organization owning each individual
workplace. And of course workplaces in Congress, you have a lot
of--as you mentioned, the number of risk factors--you have a
lot of young people, you have people working in very close
quarters, you have people working very long hours.
I think there is a recommendation maybe in one of the bills
that you do a culture--a climate survey. Those are things that
you can also consider and make sure that you are reviewing
those things on a regular basis.
But culture and the message that is sent from the
leadership and the engagement within each individual office to
address that are very important factors and can do the most to
act as a prevention tool.
Mr. Brady. Thank you. I thank all the witnesses for being
here and for your testimony, very important and educated
testimony.
Mr. Chairman, I yield back the balance of my time.
The Chairman. Thank you, Mr. Brady. The gentleman yields
back.
The Chair will now recognize the Vice Chairman of the
Committee, Mr. Davis, for 5 minutes.
Mr. Davis. Thank you, Mr. Chairman.
And thank you to all of our panelists.
Ms. Lett, it is great to see you here again.
Thank you all for your testimony.
To begin, I believe an important takeaway from our previous
hearing is the need for the OOC and OHEC to become more
familiar with the policies and procedures not only of the
workings of both of your organizations but, really, how the
Ethics Committee process work as well. I also encourage more
outreach to the Hill in general so you have a sense of how best
we can all work together to serve and improve this great
institution.
I want to focus my questions today, though, on Ms.
Grundmann, and I really want to focus on OOC's outreach to the
Hill.
Your testimony discusses the need for new employees to
receive training. How is the OOC currently reaching new
employees with this information?
Ms. Grundmann. We have a very unique mandate. In fact, we
are compelled to train on our statute by the law. And it is a
very robust program, for a very small office, that is
administered largely by two people.
As I stated in my opening statement, 500 people have been
trained in person in the last 6 weeks. Our online training
module has soared in recent times, and here is an example: In
September, five people completed the online training module for
sexual harassment prevention training. In October, it was 618.
In November, it was over 4,000, with 800 people arriving just
last week.
So, in addition to this type of training, we are developing
new training. Coming on December 10 is a new comprehensive
online module that talks about anti-harassment, anti-
discrimination, anti-retaliation. In production right now is an
overview orientation of the Congressional Accountability Act.
We have a new module coming up, as well, that will focus on how
to report sexual harassment, how to respond to sexual
harassment, and behaviors that could lead to sexual harassment.
In addition, let's talk about new employees. We don't know
who these new employees are. We would love to be notified as to
when new people are onboarded so that we can communicate with
them directly----
Mr. Davis. So let me get this straight. There is no contact
between our office of--our payroll office here at the House of
Representatives and your office when a new employee comes on
board?
Ms. Grundmann. That is correct.
Mr. Davis. Okay.
You mentioned in your testimony, too, you wanted to reach
more younger staffers.
Ms. Grundmann. Yes.
Mr. Davis. Are you seeing the younger staffers taking these
training modules that you just mentioned in the last few
months? Or do you show by age--and how are you going to reach
more younger staffers?
Ms. Grundmann. Well, let me answer that question. We don't
know exactly the age or the person that is taking the module;
we just know the hits that we are receiving.
What we could explore doing--and we could do it with this
committee and the members of this panel--is a particular module
designed specifically for new employees and younger employees.
They do face different issues.
Mr. Davis. Okay. I think it is a great point that there
probably needs to be more communication between our offices
that are run by the CAO and the OOC to make sure that those
modules are out there and the training is in.
I also think it is important that we develop training for
senior managers, because they are going to be the first ones
that an employee will go to to address the process, and I think
our senior managers need to know a little bit more about the
process. How can we address that?
Ms. Grundmann. Well, there is actually a module in place
right now on anti-discrimination, anti-harassment, and anti-
retaliation that actually meets the standards for managers in
the Senate. It is a resolution that passed recently. So it is
there already.
Mr. Davis. Well, excellent.
And, in your testimony, you talked about how you hope to
strengthen OOC and your outreach programs. We look forward to
working with you to do that.
I do want to point out that the author of the Congressional
Accountability Act, our former colleague, Chris Shays, is in
the audience today.
And thank you for your work on this, Congressman Shays.
I do want to point out, while I have a little bit of time
left, Ms. Grundmann--and I notice that we have many of your
annual reports that will come out every couple of years. There
wasn't a lot of focus in the 2016 report on sexual harassment
in the workplace. And I would hope, as we move forward, that
the OOC and those who make up the agency would help us help you
identify how we can better serve all of our employees at all
levels and also understand how we can get anybody who may be a
victim in front of you, in front of the office, and on the path
to get the problem rectified. That is the goal.
And I appreciate you being here.
Ms. Grundmann. Great. We couldn't agree with you more.
Mr. Davis. Thank you.
I yield back.
The Chairman. The gentleman yields back.
The Chair will now recognize the gentleman from Maryland,
Mr. Raskin, for 5 minutes.
Mr. Raskin. Thank you very much, Chairman Harper.
So I think I want to begin with a question with Ms. Lipnic.
The less power in equality that women have in the
workplace, the more vulnerable they are to sexual harassment. I
think we have to take it as both a sign and a cause of progress
here that we have 84 women, I think it is, in the U.S. House
today and 21 in the Senate. One can only imagine the conditions
of sexual harassment when the Senate and the House were all
male, or virtually all male.
But I saw an interesting comment by Barbara Ehrenreich, who
has noted kind of a class bias in the sexual harassment
discussions that we have been focused on, lots of women who are
in professional jobs. And she said people are not talking about
the hotel workers, the farm workers, the waitresses who face
rampant sexual harassment and so on.
And I am just wondering, is there anything that we can do
that will benefit everyone, if not in the same legislation,
necessarily, but are there policies we can advocate that will
actually make a change for people across society?
Ms. Lipnic. Thank you for that question.
So, in our work at the EEOC, you are absolutely right. I
mean, we see harassment claims across industries, across income
levels, from the executives suite to the factory floor, to the
farmers' fields. We have had horrendous cases of harassment for
particularly vulnerable workers.
That is part of the reason why, when we put our task force
together, we included representatives from worker advocacy
groups. So, certainly, things that are more outreach along
those lines and that recognize the work advocacy groups, worker
advocacy groups, can play and how individuals who are in
vulnerable work situations can go to those organizations and
seek some redress.
You know, certainly one thing to consider--and this is
something that we have in the Federal sector--is requirements
that information is provided in different languages so that,
you know, you are reaching populations, particularly for
vulnerable workers, who English may not be their first
language. So that is certainly one thing to consider.
In terms of legislative changes, in terms of Title VII, I
am not sure that there is--I am not sure that there is anything
that I could recommend right now, and I certainly would be
happy to give more thought to it.
Mr. Raskin. Okay. Let's pursue that----
Ms. Lipnic. Sure.
Mr. Raskin [continuing]. If we could. And I thank you very
much.
Ms. Lett, let me ask you, you began by mentioning this
interesting article, which I saw too, ``Question My Story'' by
a victim of sexual harassment. And you invoked her description
of gray areas and the lack of third-party witnesses and so on.
And it brought to mind the F. Scott Fitzgerald saying that
the sign of first-class intelligence is the ability to hold
contrary thoughts in your mind at the same time and still
conduct yourself effectively.
And everyone agrees we need zero tolerance, and everyone
agrees we also need a process that is fair to the victims and
fair to the accused. The problem is that people today think
that our process is so cumbersome and convoluted that its
purpose is not to discover the truth but somehow to bury the
truth or to complicate the truth. That is, at least, the public
perception.
And so can we do to make sure that we do have a process
that is fair, that is perceived as fair, but also moves things
quickly enough so that people see that we are taking the issue
seriously?
Ms. Lett. Well, as I mentioned before when I was asked a
question about the cooling-off period, I don't have a practical
reason to think that that is not a good idea. Certainly, it is
not going to change how we do business. And so eliminating,
possibly, that particular piece of the process might be
helpful.
I do think that there--and I know that the Office of
Compliance can speak more to this, but----
Mr. Raskin. Just to be clear, you were saying that we don't
need the cooling-off period?
Ms. Lett. From my perspective, I don't think it is needed.
As I said, the one reservation I have is that it does provide
an additional chance to resolve a matter before a full-blown
litigation begins.
I do think it is important to communicate to employees
their rights. That is not my job, not our office's job. And I
know that there have been, over the years, efforts by the
Office of Compliance. I remember when I first started on the
Hill, we would get paychecks, and there would be communication
about the Office of Compliance and our rights under the
Congressional Accountability Act. So more efforts, of course,
to train employees, to make them aware of their rights, and
ongoing communication, I think, would be helpful.
I have to say, the plaintiffs' bar is very savvy about
these rules, and, typically, employees don't have problems
getting attorneys representing them. Most of the concerns I
have heard is that the process is lengthy. So eliminating the
cooling-off period would be helpful.
Mr. Raskin. Thank you.
Mr. Chair.
The Chairman. The gentleman yields back.
The Chair will now recognize the gentlelady from Virginia,
Mrs. Comstock, for 5 minutes.
Mrs. Comstock. Thank you, Mr. Chairman.
I wanted to focus on what you cited, Ms. Lipnic, as one of
the best prevention methods, which is the trusted complaint
procedures.
Now, we have the procedures that by law you are required to
have. So I appreciate, Ms. Lett, as you laid out, you know, you
have to deal with both sides. But we have been talking about
and I think a number of us have talked about having some type
of victims advocate, having a separate person for the victim,
whether it is an ombudsman, an advocate, a victims counsel.
Wouldn't that help, if we had somebody where the victim can
go--and even if they have had the training, you know, when you
are in that situation--you know, I mean, we have special people
for rape victims, they then go, and you are walked through the
whole process at that point when you are in crisis.
So if we could have somebody that they could go to in that
type of situation, wouldn't that improve the whole dynamic of
the experience of the victim, putting them on a level playing
field and helping them through this process?
I will start with you, Ms. Lipnic.
Ms. Lipnic. Sure. I think that is a very valuable
suggestion.
One of the things I would tell you, that when we were doing
the work of the task force, we actually invited people from the
Pentagon, from the Defense Department, because of what they
have been dealing with for the last, you know, 14 years and
their own internal procedures as to sexual assault in the
military.
And so having a victims advocate is something I know that
they set up there, and I would urge you to maybe consult with,
you know, the generals there who have been dealing with that,
and they would have more experience with that.
But that is something that--I think your focus on
addressing the immediate situation for the person, what can
help them in that immediate situation, how will they know what
is going to happen, and what is the corrective action that is
taken immediately, needs to be a big focus.
Mrs. Comstock. Okay. Thank you.
And I know that is in Congresswoman Speier's legislation
and Congressman Byrne had talked about that. And I do want to
thank Ms. Bertucci again, because when I had asked her, with
her situation, what could we do that would have helped, an
ombudsman, a counsel, an advocate was the single thing that she
identified that I do think--just thinking about that
experience, I think it is very important that we get that in
the legislation and then also have that be, you know, imbued
through the training also.
Perhaps on the training process, too, you know, when
someone sets up a House account and they are a new employee,
maybe we can have more socialization in getting information
directly to them in multiple methods, not just, ``Here is a
class you can go to,'' but let's make sure we are getting, you
know, more information out that way.
And then I wanted to--I guess the Office of Compliance. I
know you are continuing to go through the records and to give
us the information on the overall cases.
And I think, Ms. Lett, you went through the type of cases
you are getting.
But given the public's concern and, sort of, the public
right to know about what type of cases you are dealing with,
and particularly, you know, when Members are involved and/or
Members' staff, do you estimate you will have that information
soon so that we can have that available for the public in
whatever legal way you are allowed to have it, have a much more
detailed accounting?
Ms. Grundmann. A couple things. Let me just address the
victims counsel just specifically, because it was part of our
statement.
We understand that during at least the counseling stage and
certainly in the mediation stage, when the employing office is
represented by OHEC, that the victim feels entirely alone and
is at a severe disadvantage. So what we have proposed to do is
really beef up the counseling stage so the counselor actually
actively participates in technical advice, in drafting a
complaint.
That coupled with investigatory authority given to our
general counsel to immediately investigate these claims as it
emerges can be a form of advocacy on behalf of the employee.
But in response to your question--and this actually
dovetails into Mrs. Brooks' request to us regarding the ethics.
We provided a response this morning. The law as it is currently
written is difficult for us to produce this kind of
information, because we know that in counseling it is a strict
confidentiality, and that binds our office from discussing it.
The employing office, as Gloria Lett said, is not told.
In mediation, there is also strict confidentiality. And
that specifically adheres to the products, the materials that
are produced in mediation. And that is, again, strictly
confidential, but it is not unusual in our process. Mediation
is private throughout the industry.
What our law specifically requires, in terms of producing
information in the rules, is numbers and types of inquiries
that come to our office, number and types of initial requests
for counseling, numbers of covered employees to the complaints
they file, the claims they raise, and the disposition of those
claims.
In terms of disclosure to Ethics, we, to our knowledge,
have not received any requests up until this recent one, so we
appreciate the concern. The law as it is currently written only
allows us to disclose this type of information in a very narrow
circumstance, under two conditions: when the case reaches a
final decision and the employee is consulted. So, in the event
that we cannot release documents with respect to counseling,
mediation: where there is no final decision and when the
employee has not been consulted.
Having said that, we would like to work with this committee
to change that rule. And a potential change really goes towards
granting us the authority to investigate claims. If the general
counsel were granted that authority, it would be similar to
what we have in ADA and OSHA. The general counsel, at that
point, could find--if there is reason to believe that the law
had been violated, a report could be generated. And that report
could be made available to you.
Mrs. Comstock. Okay.
And, Mr. Chairman, I would just mention, I hope we can get
much more detailed information, and if we need to make changes
to allow you to do that, because if we are going to correct the
process, we need to know what has happened, where the
complaints have been.
I noted the committee got a report on November 28, a memo,
detailing from 1997 to 2007, where it laid out that 90 percent
of the cases were with the Architect and the Capitol Police--
probably a lot of safety things.
But I think we need to know what are the type of cases and
then when Members or Member offices are involved and how we are
going to do that going forward.
But I think the public has a right to know that, going
back, and, certainly, going forward, how we can improve that
transparency. So I hope you can work with us on that in getting
more detail.
Ms. Grundmann. Understood.
The Chairman. The gentlelady yields back.
The Chair will now recognize the gentlelady from
California, Ms. Lofgren, for 5 minutes.
Ms. Lofgren. Thank you.
And my apologies for being tardy. The FBI Director is over
in the Judiciary Committee, and I had to be there for a bit.
And I think my colleague Mr. Raskin has the same conflict.
This, obviously, is a very serious matter for us. And we
are, I think, very clearly going to change the procedures and
the statute that we have. So the question is how to do that,
how to avoid pitfalls.
And one of the things that I am interested in is the
recommendation that you have made, Ms. Grundmann, on the
additional powers for the general counsel that you just
referenced, specifically how the counsel would use those
investigative powers to get to the facts of the matter that you
currently can't do.
What conflicts might exist if that were assigned to you?
And could you more fully explain that to us?
Ms. Grundmann. Absolutely.
Rather than reinventing the wheel, we propose to use the
internal mechanisms that we currently have. And the general
counsel, as we state, does have investigatory authority in
certain areas, such as in OSHA and ADA.
And how that really works is a claim can be filed
anonymously, which is unusual. It is not the same in the labor
forum. But the current practice would be we would work, the
general counsel would work with the employing office. Now,
clearly, that is not going to work in this particular
circumstance. But, in the investigation, there is a move
towards resolution. Because in OSHA cases and ADA cases, there
are a lot of dollars involved, so there is a significant amount
of negotiation and discussion.
If the matter is not resolved, it could result in the
filing of a complaint by the general counsel. The general
counsel actually represents the employee, in this case, in
moving the case forward. That is the process we envision
putting into effect.
The reports are not made public. And they are given to the
party that can control the outcome, who can fix the outcome, if
you will.
So the process is in place. The concern we have is the lack
of staffing. We don't know how great the volume will be----
Ms. Lofgren. Right. Of course.
One of the things that I think--we want more transparency
on some of this. I mean, if you have an employer-employee
dispute--for example, under the act that we adopted in 1995,
certain employees are exempt from overtime and certain
employees aren't, just as in the private sector. You could have
a dispute about that category and a fight about overtime. I
don't know that that needs to have the same level of disclosure
as a sexual harassment thing. We want to stomp that out, and
part of the way to do that is to have some daylight on this
process.
So one of the things I have been thinking a lot about--and,
certainly, my colleague Ms. Speier has done the work on this
bill, but it is a beginning point--how do we make this
transparent in a way that protects the victims who want to
maintain their privacy, but some victims are bullied into a
confidential agreement.
So I am just wondering in terms of what other people in an
office where there is sexual harassment, what their role is,
what their obligation is, and are they constrained by these
agreements that are being undertaken right now.
Ms. Grundmann. So part of our training in the future,
coming soon, will cover bystander training--specifically, how
do people who view this type of activity, what do they do. And
I think that is something Representative Speier has previously
mentioned in terms of our training. It is a hard area for us to
deal in. The confidentiality that is currently in the rules
prohibits us from having a conversation----
Ms. Lofgren. Yeah, but we can change those rules.
Ms. Grundmann. And let me urge this committee, as you go
about changing these rules, one of the communities that you
need to reach out to really is the plaintiffs' bar and the
employee representatives.
Ms. Lofgren. Right. And we are doing that.
Ms. Grundmann. Let me also talk a little bit about what we
hear on nondisclosure agreements. That is a very confusing
area, but we have a very simple answer. We don't require
nondisclosure agreements. It is a product of the parties. We
don't provide standardized language. And we don't require
anybody to sign a nondisclosure agreement to come into our
system.
Ms. Lofgren. All right. That is important, but, certainly,
the inherent power differential between, say, a Member of
Congress who is harassing and a staffer who has been harassed
is pretty extreme.
Ms. Grundmann. Absolutely.
Ms. Lofgren. And I read an article recently about a young
woman who stepped forward and has never been able to be
employed again, even though she did the right thing. So,
certainly, we need to get our heads around how to protect
victims even beyond a settlement agreement.
And I see my time has expired, Mr. Chairman.
Thank you very much for your testimony.
The Chairman. The gentlelady yields back.
The Chair will now recognize the gentleman from North
Carolina, Mr. Walker, for 5 minutes.
Mr. Walker. Thank you, Mr. Chairman.
Again, I would like to thank Representatives Bradley Byrne
and Susan Brooks for the leadership not just on this committee
but the example that you set in our entire conference.
I have a couple questions for Mr. Crowley.
It has come to our attention that Federal agencies are
required to reimburse this judgment fund for judgments against
agencies and settlements for discrimination in the workplace,
yet there is no comparable requirement for Congress.
So, when we talk about liability, what discussions were
held prior to or during consideration of the Congressional
Accountability Act regarding personal liability for settlements
and final judgments awarded under the CAA?
Mr. Crowley. Well, Congressman, again, my memory is two
decades old here, but----
Mr. Walker. I understand.
Mr. Crowley [continuing]. As I recall, there was a very
clear discussion early on that would have simply prohibited
personal liability for Members, as well as punitive damages.
That changed, as the process unfolded, to limiting the
ability to pay judgments out of the new fund that was created.
And, of course, those discussions occurred extensively with the
Subcommittee on Legislative Branch Appropriations, who had a
significant input into that decision.
But I think the general notion was that, first of all, it
is not the Member personally, it is the employing office of the
Member, so that, for example, if a Member leaves office, there
would still be the ability to get restitution from the office
after the fact.
Mr. Walker. Okay.
Mr. Crowley. So I think it would be aberrational to hold
Members personally responsible when, in fact, it is an
employing office of the Congress for all other purposes,
including the Federal Tort Claims Act, et cetera.
Mr. Walker. Okay. All right. You covered, actually, the
second part of that question, so let me then ask this: Is there
any provision in the Congressional Accountability Act or in
House rules that would forbid the use of the MRA funds to pay
for a settlement reached at any point during the dispute
resolution period?
Mr. Crowley. I am not sure there is a clear answer to that
question. There is, in the statute, a limitation on what funds
can be used to settle claims. But, of course, Members have
broad discretion over the use of the MRA, and I imagine that,
in certain circumstances, particularly when part of the
settlement involves reinstatement to a position, that
implicitly the MRA would be used.
Mr. Walker. Yeah. And I can't imagine that that wasn't part
of the discussion, with the authority that a Member would have.
And even going back to those years, the budgets for staffing
were much higher than they even exist today. You know, a 2-week
settlement or a month for conflict resolution or maybe an
employee didn't fit, but the authority or the ability to cover
up such office behavior, wrongdoing, harassment, leaves a lot
of discretion in the Members' hands.
So is that what you are telling me, that there can be a
separate settlement or payment outside of the Congressional
Accountability Act using the MRA?
Mr. Crowley. I think Members implicitly have that
authority. But you have to remember that, at the time--the MRA
didn't exist until Bill Thomas created it. Before that, we had
the Clerk Hire Allowance and roughly a dozen different
allowances that were consolidated with the specific intention
of giving Members discretion on how to deploy those resources,
to such an extent that the committee was actually renamed from
the Committee on House Administration to the Committee on House
Oversight to emphasize the fact that it was not going to be
determined at the committee level but by the individual Member.
And so I think that there is some conflict between the
Congressional Accountability Act language and the inherent
authority that Members have over the MRA.
Mr. Walker. Your testimony highlights the Speech or Debate
Clause within the Constitution. Can you explain to the
committee how this clause has been interpreted by the Supreme
Court in its applications within the context of the
Congressional Accountability Act?
Mr. Crowley. Yes, sir.
The lower courts--I don't think the Supreme Court has
ruled, but the lower courts, the D.C. Circuit in particular,
has ruled that the Speech or Debate Clause does not preclude
suits under the Congressional Accountability Act, but there
still remains the immunity that is essentially an affirmative
defense that Members can assert.
And so we have created sort of a gray area. You know,
stepping back to the original discussions around the act, there
was case law saying that it is unclear whether Congress can
waive its constitutional privileges, but any waiver would have
to be explicit and unequivocal.
Mr. Walker. Yep.
Mr. Crowley. And I would have to say that in the
Congressional Accountability Act we equivocated.
Mr. Walker. And one last question. It is a simple ``yes''
or ``no,'' Mr. Crowley. Do you believe it is wrong for Members
to use the MRA to settle interpersonal sexual harassment
claims?
Mr. Crowley. My personal opinion?
Mr. Walker. Personal opinion.
Mr. Crowley. That the taxpayers should not be on the hook
for that.
Mr. Walker. Thank you.
With that, I yield back, Mr. Chairman.
The Chairman. The gentleman yields back.
The Chair will now recognize the gentleman from Nebraska,
Mr. Smith, for 5 minutes.
Mr. Smith. Thank you, Mr. Chairman.
Thank you to your witnesses. And I certainly thank you for
this interaction today among members, and certainly a very
serious topic.
It is interesting, I appreciate my colleague Mrs.
Comstock's recommendation for a victims advocate. And if each
of you, starting with Ms. Grundmann and Ms. Lett, if you could
express how that might be able to be brought into the existing
process, what changes might need to take place so that, if that
is the decision, to make changes, if that would work and how
that might work.
And then, Ms. Lipnic, if you could perhaps express your
knowledge of how that has been done elsewhere and how effective
it has been.
Go ahead, Ms. Grundmann.
Ms. Grundmann. Sure.
What we propose really is beefing up what we already have,
rather than throwing out what we have and creating a separate
office.
We could take the counselor's position and actually make it
a much more interactive process with the employee, whereby the
counselor would help technically advise the employee on how to
draft a charge or a complaint, coupled with using the general
counsel and giving him the authority to investigate claims in
the dispute resolution program.
If the general counsel were to find that there is a
reasonable cause to believe that the law were violated, he
would actually represent the employee in further administrative
processes.
Mr. Smith. Thank you.
Ms. Lett.
Ms. Lett. I would have to think a little bit more about how
it would work, in terms of the specifics. But I can tell you
that it would likely be a welcome thing, from my clients'
perspective, in that I think an advocate would encourage
employees to come forward sooner rather than later.
That would be music to our ears, certainly, because the
sooner an employer knows that there is an issue, the sooner
they can address it. It is not a good model when things barrel
way down the track and an employee feels that he or she has--he
or she--has to go to the Office of Compliance for relief. So I
think there absolutely could be some upside to that.
Mr. Smith. Okay. Thank you.
Ms. Lipnic.
Ms. Lipnic. Mr. Smith, all I would add is, by the time
people are coming to the EEOC to file a charge of
discrimination, at that point we are investigating for
liability purposes. So there is no victims advocacy role on the
part of the EEOC itself.
Mr. Smith. Okay. Thank you.
Mr. Crowley, do you wish to comment?
Mr. Crowley. Well, I think it is an interesting idea. It is
amazing to me the extent to which the issues haven't
fundamentally changed. The intent at the time was to create a
process that would both encourage victims to come forward and
allow for resolution in a way that didn't incentivize
politically charged claims immediately before an election. And
so anything consistent with those objectives, which this sounds
like this might be, seems worth pursuing.
Mr. Smith. Okay. Thank you.
I yield back.
The Chairman. The gentleman yields back.
The Chair will now recognize the gentleman from Georgia,
Mr. Loudermilk, for 5 minutes for questions.
Mr. Loudermilk. Well, thank you, Mr. Chairman.
And thank you all for being here.
Of all the issues that I ever thought I would be dealing
with when I ran for Congress, this is not one of them. And, in
fact, it sickens me, the idea that the most respected
legislative body in the world's reputation is being tainted by
us discussing this. But it is extremely important.
And it boils down to character. And, in reality, there is
nothing we can do to affect someone's character, but we can
remove the bushes that allow the bad characters to hide behind.
And I think that is kind of the direction that we are looking.
Ms. Grundmann, in your testimony, you described in detail
OOC's process and make several recommendations. But one of the
areas that you didn't really address is OOC's rule in
administering the award settlement fund. Can you kind of take
us through your role in the payment process once the tentative
settlement is reached or a final judgment is received?
Ms. Grundmann. Absolutely. But, first, if you will allow me
to clarify. The statute refers to funds that are appropriated
by the Treasury. In actuality, there is no fund. It is an
account, and that account is empty until we requisition the
funds for a particular award or settlement.
And, also, to be clear about this settlement account, the
$17 million we have talked about, yes, it covers awards and
settlements from our dispute resolution process. It also covers
awards and settlements from district court. It also covers
settlements and awards that derive out of the arbitration
process for various collective bargaining agreements in the
legislative community, such as at the Architect of the Capitol
and at the Capitol Police.
Mr. Loudermilk. Okay. Can I ask one quick question?
Ms. Grundmann. Sure.
Mr. Loudermilk. And we will get back to this. It is a zero-
dollar account. When something occurs like we are talking about
here, where does the money come from?
Ms. Grundmann. We actually requisition it. The account is
empty until a settlement comes through, and then we ask for the
money through the vehicle of a warrant, which should be
familiar to this committee.
Mr. Loudermilk. Right.
Ms. Grundmann. Our role in settlements is purely
ministerial. The parties negotiate the terms. It is incumbent
upon them to agree. It is incumbent upon OHEC to secure the
proper authority from this committee when settlements come out
of the Treasury for the House.
But should Congress desire to beef up our role, for
instance, by giving us a greater review for legality of these
decisions, you would have to change the act. Currently, we
don't have the authority. The only thing we look for is whether
it is signed by the parties and it is a written statement.
Mr. Loudermilk. Can you kind of walk me through this
process of, say, this zero-dollar account? You receive notice
of a settlement of X number of dollars. Then you request,
through a warrant, that much money.
Can you start at that point? Walk us through who sends the
money to the account. Is it the Treasury? Is it from House
Appropriations? And until the individual who filed the
complaint receives the check, what is that process?
Ms. Grundmann. Let's take one step back.
Mr. Loudermilk. Okay.
Ms. Grundmann. When the settlement is reached, the award
comes to our office. We review it for two things: in writing
and signed by the parties. That is it. And clarity,
essentially.
That settlement agreement then goes to our case
administrator. She obtains payment information from the parties
who will receive payment--routing information, banking
information.
Then the document moves down the hall, and it goes to our
budget officer. She actually requisitions the funds--this is
the account we are talking about--through the vehicle of the
warrant.
And once the funds are there, the settlement agreement
actually goes to a fourth----
Mr. Loudermilk. Who do the funds come from?
Ms. Grundmann. They come from Treasury.
Mr. Loudermilk. From Treasury. Okay. Thank you. Sorry.
Ms. Grundmann. And then the final step that we have in this
process is the agreement goes to a fourth person to check that
all the information is correct, the routing information. And
then the funds are released.
At that point, our involvement with the fund ends. We do
not determine when the person is paid. There could be an
offset, for instance. But we are done with the process.
Mr. Loudermilk. Okay.
Is there any other process in there to where anyone in
Congress notified of a settlement, has to sign off on it? Or is
it just within your office?
Ms. Grundmann. Other than rule X, which governs this
committee, whereby the Chairman and the Ranking Member have to
sign off on particular settlements that come out of this
account, that is the only rule.
Mr. Loudermilk. So, in that process, then, the Chairman and
Ranking Member do sign off on that?
Ms. Grundmann. That would be a good question for Ms. Lett.
Mr. Loudermilk. Okay.
And, Ms. Lett, in the few moments left, could you answer
that question?
Ms. Lett. The answer is yes. If there is a settlement that
comes out of the Treasury, that has to be approved by this
committee.
Mr. Loudermilk. Okay. Thank you.
Mr. Chairman, if we do other questions, I have some others,
but I will yield back at this point.
The Chairman. The gentleman yields back.
The chair will now recognize Ms. Speier for 5 minutes for
questions.
Ms. Speier. Thank you, Mr. Chairman.
Mr. Chairman, it has been said a couple of times and I just
want to underscore the importance of having the plaintiffs' bar
appear before the committee, as well, to hear from them how the
process has or has not been working so we can refine it moving
forward.
To the last question that Mr. Loudermilk just raised, it
was my understanding in one article that I read that the former
chair of this committee declined to approve any sexual
harassment cases, and, as a result, the MRA started to be used
for that process.
Is that your recollection, Ms. Lett?
Ms. Lett. That is not exactly accurate. There were more
than sexual harassment cases that were not approved.
Ms. Speier. Well, maybe so. But were there sexual
harassment cases in which the former Chair declined to sign off
on--the Ranking Member was not made aware of. That is how it
was reported, and I am trying to get clarification.
Ms. Lett. I don't remember the exact number. It may have
been one or two, but it certainly was not more than that.
Ms. Speier. So if it is not signed off by the Chair, then
there has to be another way in which the settlement is reached.
And that, in my understanding, is how the MRA has been used in
some cases.
Ms. Lett. That is correct.
Ms. Speier. I want to focus back on the victim. One of the
problems--and you made mention of it, Ms. Lipnic--is that you
have a victim who has come forward, is concerned about the fact
that she has been sexually harassed, either by the Member or
someone in the office, but she has to continue to work in that
office in order for it to be resolved through the Office of
Compliance. If she doesn't continue to work in the office, then
the Office of Compliance has no role, correct?
Ms. Grundmann. Oh, you are talking to me? I thought you
were talking to Ms. Lipnic.
There is a concern that we haven't discussed here today,
and that really is about retaliation. You know, the employee
has filed a claim----
Ms. Speier. That is what I am getting to.
Ms. Grundmann. Perfect.
Retaliation is covered currently under the CAA, in that an
employee who has come to our office, experienced some sort of
retaliation, would have a separate claim.
But here is how the process works. The employee comes in.
They seek counseling. They go to mediation. The employee office
now knows of the claim. There is retaliation that occurs. Under
the current process, that employee would have to restart the
process again, go back through counseling, go back through
mediation.
And this is why we propose the possibility of
investigations for our general counsel and the possibility of
amending the complaint so that the charges all merge at one
point in time, rather than going back through the whole system
again.
Ms. Speier. So I am also concerned, though, that we don't
have a means yet--and possibly should consider this--to allow
the employee to work remotely, to the extent that they can. In
some offices, you can't. If you work for the Architect and you
have to be painting offices, you can't do that remotely. But in
offices where you can, so that there is not the continued
environment that is very uncomfortable for the victim.
Ms. Lett. May I address that, Congresswoman?
There actually is a way that that can happen. And it has
happened in other cases. In the----
Ms. Speier. I think we just need to make it explicit, is
what I am suggesting. I don't think it has always been the case
for everybody. One of the complaints that was filed that went
through the process, the employee had to be in the office. And
I don't think that is right, personally.
Ms. Lett. I can speak to--I can't speak to specific cases,
but, as I said, employing offices have a lot of flexibility in
this area. And I think that this is an area where employees
have been very effective, because, as soon as we know that an
employee has engaged in protected activity, we will counsel the
employing office very strongly that, while the underlying case
may not have merit, if the employee is retaliated against in
any shape, form, or fashion, I mean, if they even have a
thought bubble to retaliate, they are going to face a very
difficult case.
And so, I think, we have never lost a case on retaliation
because----
Ms. Speier. Okay. My time is running out, so I am going to
ask a couple more questions.
Ms. Lett. Sure.
Ms. Speier. Soft landings. One case that we all are
familiar with where the employee, after the settlement,
couldn't find a job in the Capitol. I would be interested--
maybe we don't have time right now--but some kind of discussion
about what we do for employees who have, through no fault of
their own, have been sexually harassed, they have come forward,
they now have a scarlet letter that they wear and cannot be
employed elsewhere.
Ms. Grundmann. Could I answer that question just very
quickly?
Under the current law, an employee who has left is still a
covered employee up to 180 days from the violation. So, if
there was retaliation, if they had left, they could still file
a claim for that 180 days.
Ms. Speier. Yeah, but what happens if they still want to
work in the building?
Ms. Grundmann. Larger policy. Yup.
Ms. Speier. Thank you.
I yield back.
The Chairman. The gentlelady yields back.
The Chair will now recognize the chair of the Ethics
Committee, Mrs. Brooks, for 5 minutes.
Mrs. Brooks. Thank you, Mr. Chairman. And thank you again
for allowing me to participate.
I would like to ask permission to admit for the record the
letter that Representative Deutch, my ranking member on Ethics,
and I submitted that Ms. Grundmann has just referred to, the
letter of December 1.
The Chairman. Without objection.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mrs. Brooks. Thank you.
And I would also ask unanimous consent that we admit into
the record the Office of Compliance's response that was
received this morning that I have been reading this morning.
The Chairman. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mrs. Brooks. Thank you.
In our letter on December 1, we asked that the committee--
and because this is a hearing about the process and about
examining reforms to the Congressional Accountability Act, that
is what I want to zero in on. There are many, many other things
I would love to talk about.
However, we asked OOC to promptly provide the committee
with all records in the possession of the office related to any
claims of sexual harassment, discrimination, retaliation, and
so forth.
The response that we received today indicates that--you
refer--and I quickly went to section 1416 of confidentiality.
As I am reading your response, you cannot share, because of the
strict confidentiality rules, any claims that you have been
involved in, OOC, relative to referrals to Ethics. Am I
correct?
Ms. Grundmann. You are absolutely correct. The way the law
is written is the confidentiality, the strict confidentiality,
not only binds the parties, it specifically binds our office
from discussing those claims.
And you are talking about claims overall. The law currently
prohibits us from releasing information regarding in the
counseling period, in the mediation period, but allows for a
very narrow exception when a case has gone to hearing and a
final decision has been rendered and the employee consents.
Mrs. Brooks. And to that point on the hearing, there was
only one hearing in 2016, in fiscal year 2016. Is that correct?
Ms. Grundmann. If that is what is in the letter. I----
Mrs. Brooks. That is not in the letter. That is on a
screen-shot on your website.
Ms. Grundmann. Now, it is possible that that case settled--
--
Mrs. Brooks. Okay.
Ms. Grundmann [continuing]. And there was no final
decision.
Mrs. Brooks. There was one that indicated a hearing, but
you indicated in this letter that there have been no
proceedings before a hearing officer. And the hearing officer
comes after mediation. It is the end stage of your process----
Ms. Grundmann. Correct.
Mrs. Brooks [continuing]. Correct? And you indicate that
there have not been any proceedings before a hearing officer or
a board relative to any Members or employees.
Ms. Grundmann. Correct. That doesn't cover district court.
Mrs. Brooks. Okay. That covers the court of appeals.
Ms. Grundmann. It does not cover the court of appeals. It
only covers our administrative hearing process before one of
our hearing officers.
Mrs. Brooks. Okay. And so are you saying that there are
matters that have gone to district court?
Ms. Grundmann. There are matters that have gone to district
court.
Mrs. Brooks. That you don't have possession of those
records?
Ms. Grundmann. We are not part of that process.
Mrs. Brooks. Okay. And so those people who decide to go to
district court, they pursue their own process in district
court.
Ms. Grundmann. That is correct.
Mrs. Brooks. And so we are not getting anything.
Ms. Grundmann. Pardon me?
Mrs. Brooks. We are not going to receive anything regarding
any--and we actually asked about any employment matters. We
actually asked related to claims of sexual harassment,
discrimination, retaliation, or any employment practice.
Ms. Grundmann. That goes back to the law. The law doesn't
allow us to release anything to your committee.
But if we were to change the law, then we could use the
method, through investigation by our general counsel, any
report that is generated where reasonable cause has been found
that the law has been violated could be released to your
committee.
Mrs. Brooks. And so let me ask you, as well as Ms. Lett,
what are your opinions on mandatory reporting to the Ethics
Committee in harassment matters?
Ms. Lett. I have to say that is a very difficult question
to answer. When we handle matters of discrimination and we talk
with our clients, we tell our clients that it is possible that
we will resolve the case or the case may go forward, but there
may also be some type of Ethics matter that might arise out of
those circumstances. So they will know that they may be
fighting on two fronts, whatever the claim may be.
Mrs. Brooks. And can I ask, Ms. Grundmann: In your letter,
you state to us that you have encouraged employees who have
been the victim that may constitute an ethical violation to
contact our committee--how do you do that?--and to cooperate
with our investigation.
Ms. Grundmann. We do that through the counseling period.
Mrs. Brooks. And is that just written? It is a written
discussion? Or do you provide them that in writing, that they
should----
Ms. Grundmann. Counseling is generally by phone or in
person. So it is a verbal discussion.
Mrs. Brooks. And is there any discussion--and I am sorry,
my time is up. But my question was, is there any discussion
about the confidentiality of the Ethics proceedings, in many
ways, not that initial investigations might not be reported,
but, in fact, very often the witnesses, the complaining
witnesses, are often kept confidential?
Ms. Grundmann. I believe there is.
Mrs. Brooks. Okay. Thank you.
I yield back.
The Chairman. The gentlelady yields back.
The Chair will now recognize the gentleman from Alabama,
Mr. Byrne, for 5 minutes.
Mr. Byrne. Thank you, Mr. Chairman. And I appreciate your
allowing me to participate in this hearing. It has been very
edifying for me.
Mr. Crowley, I want to make sure I clarify one thing with
you. I don't think you are saying this, but I want to make sure
we get this very clear. You are not saying the Speech or Debate
Clause provides immunity to a Member or a Member's office if
they engage in sexual harassment.
Mr. Crowley. Congressman, that is a very difficult question
to answer. Clearly, the conduct itself is not protected. The
question becomes what happens when a Member of Congress asserts
that a discriminatory action, which, of course, sexual
harassment includes, was not motivated by what the victim says
it was--clearly, sexual harassment, under any circumstances----
Mr. Byrne. But that would not be sexual harassment then.
Mr. Crowley. Well, keep in mind that sexual harassment is a
form of discrimination under the----
Mr. Byrne. It is a subset of discrimination based on
gender, but sexual harassment cannot be immunized by the United
States Constitution.
Mr. Crowley. That is correct.
Mr. Byrne. Okay. I wanted to make sure we got that clear.
Now, I want to move to what we do about it. And I think
where we are really touching here is how we investigate and
enforce this.
Ms. Grundmann, you do not have the authority to investigate
or enforce that today, in sexual harassment.
Ms. Grundmann. That is correct.
Mr. Byrne. But if it was an OSHA a case, you would.
Ms. Grundmann. That is correct.
Mr. Byrne. Why would there be a distinction between OSHA
cases and sexual harassment cases?
Ms. Grundmann. We have those same questions.
Mr. Byrne. Okay.
Mr. Crowley, do you want to answer that question?
Mr. Crowley. You know, Congressman, the honest answer is I
don't recall. I do recall conversations around having the
Office of Compliance play a particular role with respect to the
ADA and OSHA because it was a case of first impression. These
are historic buildings. If there needed to be retrofitting of
an elevator shaft, for example, it was a more involved
discussion. And so that was the reason that the Office of
Compliance was given responsibility in that area. But why it
didn't go further, I can't tell you.
Mr. Byrne. Well, I will say this. A lot of case law
occurred in this area after 1995. I mean, we have the Faragher
decision from 1998, the Oncale decision. So a lot happened
after that time that you wouldn't have known about at the time
you were writing it.
So, Ms. Lipnic, let me turn to you. You do have the power,
whether it is in regard to people in the private sector or
Federal employees that don't work for Congress, you do have the
power at the EEOC to both investigate and enforce. Do you think
that the Office of Compliance should have similar powers when
those sorts of things come up with regard to Members of
Congress or people that work for us?
Ms. Lipnic. The short answer is yes.
Mr. Byrne. Okay. I like short answers. They are the best.
Ms. Lipnic. Again, as you well know--and, you know, I
thought your testimony from the November hearing was spot-on.
Again, this point I keep making, there is the difference
between that immediate investigation that has to take place and
that corrective action. And then, you know, the investigation
at the EEOC is when someone comes to us, and we are
investigating, essentially, was there an investigation, what
happened internally, what was, you know, the corrective action
taken by the company. But someone needs to be doing that.
And, now, it is my understanding from the testimony that I
read that the House Employment Counsel plays that first role,
in terms of investigating Members' offices. But I think it is
certainly worth considering, do you want to have, you know, a
third party, essentially, who is not then representing the
Members' offices later on in the process, conducting that
initial investigation and then also making some determination
in terms of liability.
Mr. Byrne. Here is a really sticky issue. And, Ms. Lett, I
am going look at you for this one.
Now, in the private sector, where we don't have public
disclosure issues, when we engage in mediation or we engage in
settlement discussions and we reach an agreement, it is almost
always confidential. Mediation rules require confidentiality,
and the settlement agreements, which are contracts, have
confidentiality provisions in them because the confidentiality,
or the promise of it, helps foster the negotiations, helps
foster people coming to a meeting of the minds.
How do we resolve that tension here in the public sector?
Ms. Lett. I wish I had an easy answer for you on that one,
Congressman. There is a tension there. Oftentimes, the
employees want that confidentiality because they want to go and
they want to get other jobs. Certainly, Members of Congress
want that confidentiality, because even if a Member or the
office has done absolutely nothing wrong, putting that
information out into the public can certainly hurt.
So I don't have an easy answer to that question. I
certainly will give it some additional thought, but it is a
very difficult situation.
Mr. Byrne. Thank you. Me either.
Thank you, sir. I yield back.
The Chairman. The gentleman yields back.
I want to thank each of the witnesses for being here today.
You have given us some very valuable testimony to consider as
we go forward.
And I particularly want to also thank Mrs. Comstock for her
work on this. She has been invaluable to this committee and
will be as we go forward.
Also, again, I want to thank Representatives Speier and
Byrne for your previous testimony here on November 14 and your
participation, along with Mrs. Brooks today, as ex-officio
members. I appreciate that insight that you have given.
We have a great responsibility as we go forward to get this
right and to make sure that we continue with the message that
one case of sexual harassment is one too many. How do we make
sure that the victim--as Ms. Speier has so eloquently stated,
how do we make sure that the victim is protected, with changes
that we will consider, when we balance transparency issues with
making sure that a victim is not a victim a second time because
of any changes that we make. And we want to make sure, with
your input, that we make this in the correct way.
It doesn't seem that difficult for Members to remember the
golden rule and to treat people with respect. And that will
solve a lot of our future problems as we try to clean this up.
I want to remind everyone that members will have 5
legislative days to submit to the Chair additional questions in
writing that would be passed on to the witnesses.
If we do that, we would encourage you to answer those as
quickly as possible so that those can be made a part of the
record.
Without objection, this hearing is adjourned.
[Whereupon, at 12:00 p.m., the committee was adjourned.]