Workplace rules lax for Congress

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Sex-harassment policies are stricter for businesses

Billy House

Republic Washington Bureau

Oct. 5, 2006 12:00 AM

WASHINGTON - When former Rep. Mark Foley and other soldiers of the "Republican Revolution of 1994" took control of the U.S. House in 1995, they kept a promise to bring Congress under many of the same laws that apply to the rest of the country.

But the reforms delivered from the GOP's "Contract with America" may have fallen short when it comes to sexual harassment.

In applying to Congress the same civil rights, labor and workplace-safety laws that U.S. businesses must observe, members set up a compliance system that legal experts say doesn't meet the standards seen in many corporations.

"When, ultimately, Congress made itself susceptible to these laws, it did the right thing. It was a shameful thing for Congress to not be covered," said Micah Salb, a Washington, D.C.-area employment-law attorney.

"But if this were a business, without question it would not be operating as it should," Salb said of Congress' compliance program.

The deficiencies in the program were exposed with the resignation of Foley, R-Fla., who stepped down last week amid a scandal over salacious electronic messages he sent to teenage pages. House leaders learned of the behavior a year ago.

Revelations of inaction by senior congressional leaders and aides are raising questions about whether Congress is enforcing its workplace laws, which were put in place to protect the more than 30,000 employees of the legislative branch.

The independent agency established by Congress to administer and enforce what is known as the Office of Compliance is prohibited from looking into a matter unless the person who says he was wronged files a formal complaint. In private workplaces, a formal complaint typically is not required.

The aggrieved employee may not file a complaint against an individual lawmaker but only against the employing office. The term "employing office" in this case means the personal office of a member of the House or the Senate.

If a complaint is filed, a process that emphasizes dispute resolution begins with counseling, possible mediation and an administrative hearing. If unresolved, the case could move to federal court.

By comparison, the Equal Employment Opportunity Commission, an agency created by Congress in 1964 to address discrimination by businesses and other employers, has the authority to launch its own investigations of employers, providing they have 15 or more employees.

"No, we don't have that kind of authority," acknowledged Teresa James, director of dispute resolution for the agency, the Office of Compliance. "The employee needs to bring their allegation to us."

That applies even to cases where, although there is no formal complaint, there is wide suspicion or knowledge of sexual harassment on the part of a lawmaker or other House and Senate employees, actions that could violate such statutes as Title VII of the Civil Rights Act of 1964.

Activities covered in that act include unwelcome sexual advances in the workplace, requests for sexual favors or other conduct of a sexual nature that may create an intimidating or offensive work environment.

In the case of the 16-year-old page who raised questions about Foley's messages and wanted them stopped, his parents reportedly did not want to take the matter further.

Still, Rep. Roy Blunt, R-Mo., a member of the House leadership, said Wednesday that he would have handled the matter differently from Speaker Dennis Hastert, R-Ill., had he known about it.

"You absolutely can't decide not to look into activities because one individual's parents don't want you to," Blunt told the Associated Press.

Hastert could have asked the Justice Department to conduct a criminal investigation or had House members vote to refer the matter to the Ethics Committee, two moves he took after news of Foley's messages were publicized last week.

In a business setting, an owner or supervisor who fails to follow up or take action on reported harassment could wind up costing his company, especially if others later are similarly harassed, said Jason Zuckerman, a Washington employment lawyer, and others.

"The business can face liability," he said.

Some human rights laws or acts adopted by local governments also contain personal liability for supervisors who fail to investigate and conduct appropriate actions.

But whether a congressional leader can be sued, or even Congress in its entirety, for failing to act is a murky topic and touches on questions of sovereign immunity while conducting official duties.

There appears to be no affirmative responsibility under the Congressional Accountability Act for congressional leaders to report instances to the Office of Compliance of violations, Salb said.

However, a case making its way through the courts is raising the possibility that, in some instances, members of Congress can be sued for such things as age discrimination and retaliation under the Congressional Accountability Act, on the grounds that such activities are not protected legislative acts.

"I think what happened with Foley is a pretty bad sign of how the system works," Zuckerman said.