#MeToo in Congress: Reforming the Last Generation’s Reform

The #MeToo movement led to calls on Congress to enact legislative change.  Reformers demanded change that would encourage the reporting of sexual assaults, would deter assaults in the first instance, and would better protect the rights of both accusers and the accused.  After considerable back and forth, Congress has responded in at least one close-to-home area:  It has adjusted the process by which congressional staff may accuse Members themselves of sexual harassment.

At the tail end of 2018, during the “lame duck” session of the last Congress, the House, Senate, and President agreed on enactment of the Congressional Accountability Act of 1995 Reform Act (CAARA), Pub. L. No. 115-397.  As the name implies, the CAARA reformed the already-existing Congressional Accountability Act of 1995 (CAA), Pub. L. No. 104-1, as amended.  The CAA had provided the first statutory authorization by which congressional staff could bring sexual harassment allegations against Members.  In the context of #MeToo, however, many found the CAA procedures arcane and cumbersome; others objected to the transfer of government (taxpayer) money to complainants.

And so, in the crucible of #MeToo, one reform act (the CAA) begat another (the CAARA).  The CAARA does at least five potentially important things, discussed below.  (Some of these changes were effective immediately; others are being phased in over the next few months).

First, the CAARA extends CAA rights to unpaid staff (e.g., interns), and it streamlines the process for bringing a CAA claim.  For example, the CAARA eliminates a previously required 30-day counseling period, and it makes optional a previously-required 30-day mediation period.  In short, congressional staff alleging sexual harassment, including interns, now may proceed more directly to filing a federal civil lawsuit, if they so choose.

Second, the CAARA requires Members found personally to have engaged in sexual harassment of their congressional employees to reimburse the Treasury for any damages paid to the complaining employee.  The CAARA further requires Members to provide such reimbursement where payments are made in settlement of the allegations of such sexual harassment.  One likely, if unintended, result:  Members may be much less likely to settle such cases, now that the money ultimately will come from the Member’s pockets.  In other words, we may finally see the trial of a sexual harassment allegation against a Member of Congress.

Third, the CAARA provides that, wherever Members or senior staff are found to have engaged in sexual harassment, or where a settlement is premised on such allegations, that conduct will be referred to the House or Senate Ethics Committee.

Fourth, in consequence of the CAARA reimbursement requirements, Members now may themselves intervene—with private, personal counsel—in litigation in which they are accused of the sexual harassment of their subordinates.

And, fifth, the CAARA provides a mechanism by which Congress will provide employees with free, confidential legal advice regarding employees’ rights under the CAA, including re: benefits and strategy in bringing litigation.  On the one hand, that seems only fair, given that the government provides representation to Member offices in defending against sexual harassment claims.  On the other hand, it is extraordinary:  Rarely does an entity provide free counsel to individuals preparing to sue it.