The wave of transparency and accountability heightened by the #MeToo movement has hit Capitol Hill. After months of negotiations, on December 13, 2018, Congress passed S. 3749, a bipartisan, bicameral bill to amend the Congressional Accountability Act of 1995 by providing new procedures for initiating, reviewing, and resolving sexual harassment claims. President Trump signed the bill on December 21, 2018. The amendments will become effective in June 2019 (180 days after President Trump signed the bill into law).
The hallmarks of the bill, which Congressional members touted as “a strong step towards creating a new standard in Congress that will set a positive example in our nation,” include:
- Requiring Senators and Members of the House of Representatives (including Delegates or Resident Commissioners to the Congress) who, while in office, personally commit sexual harassment or retaliate against individuals for reporting sexual harassment, to reimburse the Treasury Department for settlement payments and awards made in connection with those claims.
- Publication of a publically accessible, annual list of settlement payments and awards made in connection with sexual harassment allegations.
- Requiring congressional offices to develop and implement training programs to educate employees about their rights and protections under the Congressional Accountability Act.
- Initiation of biennial workplace climate surveys on attitudes regarding sexual harassment.
- Automatic referral to the Congressional Ethics Committee of any awards or settlements made in connection with sexual harassment claims involving members of Congress or senior staff.
- Allowing congressional employees alleging sexual harassment to work remotely or take paid leave during the pendency of processes.
The full text of S. 3749 can be found here. See also Press Release, Committee on House Administration, House and Senate Reach Agreement on Congressional Accountability Act of 1995 Reforms (Dec. 12, 2018).
Because the bill affects congressional employers only, there is nothing that private employers must do in direct response to this bill. However, private employers should keep abreast of developing state and local anti-harassment laws which may apply to them. Some of these laws include, but are not limited to, increased training requirements and restrictions on the use of arbitration agreements or non-disclosure agreements in connection with sexual harassment claims. These developments are driven by the same considerations as those addressed by Congress in S. 3749, and include efforts to promote transparency of sexual harassment claims and increase accountability of those accused of harassment.
Crowell & Moring’s team will continue to monitor anti-harassment and #MeToo developments in both the public and private sectors and is available to assist companies in complying with their obligations and efforts to increase transparency and accountability in this area.