Here’s a riddle for our era: What is “unwelcome harassment”? If we’ve learned anything from the #MeToo movement — not to mention from Anita Hill and the other brave victims who came forward before this reckoning — it’s that sexual harassment is, by any reasonable definition, never welcome. But tell that to the U.S. Senate, which has included that phrase in legislation meant to address gross inadequacies in Congress’ internal sexual harassment policies, highlighting just how poorly some lawmakers understand this problem and opening the door to dangerous legal interpretations of what constitutes harassment.
Worse, efforts to address this and other problems in the Senate bill — and, ultimately, to make it easier for many government employees to seek justice against workplace harassers — appear to be stalled.
With all the chaos in Washington this year, it’s easy to forget that since the fall, nine members of Congress have resigned or announced they won’t seek re-election because of #MeToo scandals. At least one of them, former U.S. Rep. Blake Farenthold of Texas, used tens of thousands of taxpayer dollars to settle a claim with a sexual harassment accuser, money that he has not paid back to the Treasury Department. It turns out that is perfectly legal under the ironically named Congressional Accountability Act, the 1995 law that governs the sexual harassment complaint process for members of Congress and their staffs, as well as thousands of other federal employees.
In response to those scandals, the House rose to the occasion, with members of both parties coming together in January to draft sweeping reforms to the law. The House bill, which passed unanimously the next month — a legislative miracle in 2018 — would make individuals accused of sexual harassment personally responsible for financial settlements, and would shorten and simplify the monthslong process victims must endure before they can file a lawsuit. It also would ensure that all accusers are provided free legal counsel.
Then it was the Senate’s turn to take a stab at the legislation. And it remained the Senate’s turn for months, as Mitch McConnell, the majority leader, stalled for time, trying to placate some male senators concerned about their potential financial exposure under the House bill, as the Wall Street Journal recently described it.
After pressure mounted for McConnell to hold a vote, including from all of the chamber’s women members, the Senate finally rushed through a bill in late May. The Senate bill is inferior to the House version — with which it must now be reconciled — in several ways. In addition to muddying the definition of harassment, the Senate legislation would allow lawmakers accused of harassment to avoid full financial responsibility by requiring that they reimburse the Treasury only for compensatory damages, rather than also for other damages; it’s not clear why. Instead of providing accusers with legal counsel, the Senate bill would provide them with a “confidential adviser” who would be barred from dispensing legal advice, and it would keep in place some of the unnecessary hoops accusers currently must jump through before they can sue.
In short, if the House bill is a root canal, then the Senate version is a filling — it would leave things better than they were before, but it would not go far enough toward addressing the rot at the core of the existing law.
FROM AN EDITORIAL IN THE NEW YORK TIMES