The Fox Guarding the Hen House – What is our Federal Government doing to Combat Sexual Harassment in the Workplace?

As employment discrimination lawyer  residents can rely on can probably tell you, congress has recently taken several steps to combat sexual harassment in the workplace as a result of the #MeToo movement.

First, Congress passed a resolution, which does not require Senate or Presidential approval and is therefore effective immediately. The resolution prohibits Congressional lawmakers from having sexual relationships with their employees. Yes, you read that correctly. Apparently, up until this resolution passed, it was perfectly permissible for lawmakers to have sexual relations with their employees. Just to be clear, on paper this behavior has not been tolerated in most companies for years – although, in reality, it occurs with much more frequency than most people think. The fact that Congress is just now making an attempt to change the culture on Capitol Hill highlights the underlying issue in the #MeToo movement – that sexual assault and sexual harassment are widespread issues in every workplace and that victims of sexual harassment in the workplace are not alone.

Second, Congress has passed legislation overhauling its internal policy for the investigation of workplace complaints – including claims of sexual harassment in the workplace. The proposed policy still needs to pass the Senate and get Presidential approval before it goes into effect and becomes law. This revelation made headlines, but what does the proposed legislation really do? Title I of the legislation is labeled “Reform of Dispute Resolution Procedures.” Currently, before a victim can file a lawsuit in court and get the opportunity to have his or her case heard by a jury of their peers they must submit themselves to counseling and complete mandatory mediation. In legal terminology, this means that there are administrative remedies that the victim must first exhaust before they can file a civil suit. The current Congressional dispute resolution procedure erects procedural barriers to victims subjected to violations of their rights and protections under practically every law that protects employees including: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, Title I of the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, and the Fair Labor Standards Act of 1938. This is a classic example of the fox guarding the hen house. While Congress has made these laws applicable to employers, it has protected itself by requiring the victim of sexual harassment in its own workplace to get counseling from a counselor who works for the very same entity that has victimized them. This is absurd, and, thanks to the brave individuals who have stood up to say “Me Too!”, there is a good chance that the new law will pass and the mandatory counseling and mediation provisions will be eliminated. Such a change in the law will at least allow these victimized employees to proceed directly to federal court to have their case heard by a jury.