Testimony of Maya Raghu
Director of Workplace Equality and Senior Counsel, National Women’s Law Center
Maryland House of Delegates, Rules and Executive Nominations Committee Hearing on HB 1342
March 5, 2018
Thank you for the opportunity to submit testimony on HB 1342 on behalf of the National Women’s Law Center on the issue of reforms to address sexual harassment in the General Assembly. The National Women’s Law Center has worked for 45 years to advance and protect women’s equality and opportunity, and has long worked to remove barriers to equal treatment of women in the workplace.
We appreciate your ongoing efforts to address the problem of sexual harassment in the General Assembly, including introducing legislation such as HB 1342, holding hearings, and creating a Workplace Harassment Commission1 to examine ways to strengthen your internal procedures and policies. We also note that the Women’s Caucus has released a report with important recommendations.2
We hope that these steps are only the first of many and urge you, as you move forward, to ensure that any reforms of the existing system look beyond the current crisis, and seek to implement systemic, sustainable reforms that will benefit the entire legislative workforce and set an example. Maryland has the opportunity to be a leader in the country, and we encourage you to ensure that any final administrative and legislative changes include the recommendations below to expand the scope of protections and the types of individuals covered; improve the reporting and dispute resolution process; promote accountability and transparency; and implement prevention practices. Ultimately, the goal of these reforms must be to prevent and remedy workplace harassment and discrimination and ensure a safe and fair workplace culture in the General Assembly.
I. SEXUAL HARASSMENT IS A SUBSTANTIAL BARRIER TO GENDER EQUALITY, ECONOMIC SECURITY, AND SAFETY.
Despite laws at the federal, state, and local levels prohibiting sexual harassment as a form of sex discrimination, sexual harassment remains a widespread problem, affecting workers in every state, in every kind of workplace setting and industry, and at every level of employment.
Sexual harassment isn’t about sexual desire; it is an expression of power. It is used to reinforce cultural norms about appropriate roles, behavior, and work for women and men, and to exert control over people with less power and status in society, and in the workplace – particularly women, women of color, immigrants, and LGBTQ people. The sexual or sex-based element of the workplace harassment these individuals experience, including demands for sexual favors, or denigrating and humiliating comments, is a way of enforcing and perpetuating sexist and racist power structures in our workplaces that value women—and especially women of color—less.
And sexist stereotypes and outdated workplace structures—like the lack of paid leave, predictable work schedules, affordable child care, and union support—make it hard for women to get and keep good jobs and advance in the workplace. This leaves women with less power in the workplace, increasing their vulnerability to exploitation. Sexual harassment is a stark manifestation of that power imbalance.
Sexual harassment and assault infect our workplaces and deny workers equal employment opportunities, safety, and dignity. For too long, victims of harassment and assault have lived in silence because of fear of jeopardizing their safety, jobs, financial security, and career prospects, while too often perpetrators — mostly powerful men — have escaped accountability for their actions, enabled by many who have turned a blind eye to these transgressions. As recent events have demonstrated, no workplace is immune from harassment, whether in the entertainment industry, restaurant kitchens, or the halls of the General Assembly.
And the power imbalance is especially acute here, where lawmakers interact with lobbyists seeking influence, and young men and women starting their careers serving as legislative aides and interns. The General Assembly’s workforce needs a comprehensive, credible system to enable staff and others who have been harassed to report safely; to respond consistently and appropriately to complaints; to assess culpability; and to impose appropriate penalties based on fair and transparent principles that are consistently applied. Moreover, the avenues for protection and redress that do currently exist may be largely unknown to or not trusted by many staff, place many obstacles in the way of those bringing complaints of harassment, and do not serve as a deterrent to offenders.
II. RECOMMENDATIONS TO STRENGTHEN PROTECTIONS, PROMOTE REPORTING AND ACCOUNTABILITY, IMPROVE TRANSPARENCY, AND ADVANCE PREVENTION OF HARASSMENT.
A. The General Assembly Should Expand the Scope of Protections and the Categories of Individuals Protected.
While this current moment of national reckoning is focused on sexual harassment, no one working for or interacting with the General Assembly should be subjected to harassment on the basis of any protected characteristic. Sexual harassment does not occur in a vacuum. Many women experience harassment based on their race and sex combined, or their national origin and sex, or their disability and sex. Harassment often contains offensive comments based on multiple identities including sex or gender. Also, sexual harassment often occurs with other forms of sex-based discrimination. Crafting policies only focused on sexual harassment limits our ability to truly address gender and racial inequality in the workplace.
We are encouraged that you are contemplating reforms that would apply to not only sexual harassment, but also workplace harassment and discrimination based on sex (including sexual orientation, gender identity, pregnancy and childbirth), race, disability, age, ethnicity/national origin, color, religion, and other protected statuses under state law.
Moreover, we strongly support any efforts to extend protections against harassment and employment discrimination to those who work for the General Assembly but may not be “employees” within the meaning of the law or an internal policy, including interns, fellows, detailees, and pages.
Critically, HB 1342 would also extend protections from harassment and recourse for those who do not work for the General Assembly, but who interact with members and legislature staff in the course of business or due to professional relationships, such as lobbyists. Many states seek to hold lobbyists accountable for harassment. In December 2017 Illinois enacted an amendment to its Lobbyist Registration Act, and now requires lobbyists to undergo sexual harassment training provided by the state, and requires registrants to have a sexual harassment policy that includes certain specified information. Georgia’s House recently passed HB 973, requiring lobbyists to agree to abide by the sexual harassment policy of the General Assembly as a condition to lobbyist registration. California’s Senate recently passed a bill, S 224, which would extend liability for sexual harassment in the context of a professional relationship between an individual and a lobbyist, or elected official. California also recently introduced a bill, AB 2055, to prohibit a lobbyist from engaging in sexual harassment, and would authorize the relevant commission to order a lobbyist who violates this prohibition to cease all lobbying activity for a period of up to four years.
B. The General Assembly Should Improve the Reporting, Investigation, and Dispute Resolution Process.
Any reforms by the General Assembly must ensure that it promotes reporting in a safe and confidential manner, and provides a well-understood, timely, credible process for reporting, investigating, and resolving complaints.
A common issue in many legislative bodies is that staff and other individuals do not know, understand, or trust the existing mechanism for receiving and resolving complaints. In addition to including information about the reporting and dispute resolution process in trainings, the General Assembly could promote staff awareness by ensuring clear information about workplace rights and reporting is posted in every legislator’s office and in common areas. The General Assembly could create and distribute flowcharts about the reporting and investigation process, as the Women’s Caucus Report recommended.3 The General Assembly could also provide a mechanism whereby harassment and discrimination complainants are given meaningful legal and non-legal advice and support through, for example, a counsel program.
The General Assembly must also take steps to promote safe and confidential reporting. Often workplaces fail to take complaints seriously when individuals gather the courage to come forward, or employers look the other way because the harasser is powerful or a superstar. Women and other vulnerable individuals develop informal networks to warn and protect each other about harassers and predators in the fields, kitchens, and conference rooms. Thanks to the bravery of many Maryland legislators, current and former staff, and lobbyists, the culture of harassment and assault in the General Assembly is no longer an unspoken secret.4 These women spoke up publicly to hold harassers accountable for their unacceptable — and in some cases unlawful behavior — which often went unchecked. They also exposed themselves to significant adverse workplace and career consequences. Fear of losing a job and otherwise hurting their careers is a major reason why many victims of harassment and assault, and bystanders who observe this behavior, never come forward. And this is despite the fact that retaliation against workers because they speak up against harassment is illegal.
As recommended by the Women’s Caucus Report,5 the General Assembly could promote reporting by ensuring that there are multiple bodies or individuals, including an independent authority, to whom a person could report harassment and discrimination, beyond only their supervisor (who may be the harasser). And it is critical that the General Assembly provide strong anti-retaliation and whistleblower protection to encourage reporting not only by the victims of harassment, but by bystanders as well.
A number of state legislatures are struggling with processes and structures that leave receipt and investigation of claims against legislators in the hands of other legislators, or legal counsel or committee staff whose duties are to legislators. This is an intimidating reporting and investigation structure that many individuals do not trust. HB 1342 calls for the Joint Ethics Committee to refer a complaint against a member of the General Assembly to an outside and independent investigator. California, New York, and Oregon now refer complaints involving legislators to outside independent investigators. The use of an independent authority to conduct investigations into complaints, rather than lawmakers or committee staff, can help alleviate concerns staff or others may have about the fairness and efficacy of the complaint and investigation process, and fears of retaliation for speaking up. The General Assembly must ensure that any independent authority tasked with conducting investigations and hearing has the additional resources, authorities, and access to staff and legislators needed to do its job effectively.
C. Any Reforms Must Ensure Greater Accountability for Harassers and Increase Transparency.
Elected officials should be held to the highest ethical and professional standards and, as stewards of public trust, must be held accountable for harassment and discrimination, no matter how powerful they are. Part of that accountability includes establishing appropriate consequences, and informing the public about the number and nature of claims against legislators and their staff, and any resolution.
The appropriate consequence will often depend on the nature of the harassment: for instance, its severity, duration, and whether it was a pattern of behavior that continued over a long period of time or that affected many people. “Zero tolerance” is a popular term, but it should not mean that the only consequence for any incident that is inappropriate or illegal is terminating the harasser. If you adopted that standard, one consequence would be that in practice decisionmakers would ignore less severe forms of harassment, because they would feel like they could not terminate someone for making vulgar remarks, for example. They would protect employees who harassed others but did not engage in sufficiently “severe” conduct that they felt merited termination.
Instead, “zero tolerance” should mean that there are real consequences for all forms of harassment – just not the same consequence in all cases. While all sexual harassment and assault is wrong and illegal, there is a difference between sexually assaulting an employee, and making a handful of inappropriate sexual remarks to a subordinate. Thus, different, and proportionate, consequences are appropriate in those situations.
Secretive or informal processes for receiving and addressing complaints of harassment by legislators and staff, with inconsistent outcomes, only compound the problem. Accordingly, we urge you to develop guidelines that identify harassing and discriminatory conduct; the proportionate corrective actions and sanctions that may be assessed when violations are substantiated; and the process for doing so. These guidelines should be made available to the entire legislative workforce and the general public and should be fairly and consistently applied, thereby establishing expectations for behavior and promoting accountability for legislators and staff.6 Only then will accountability become a reality.
In order to promote transparency, the General Assembly should track complaints and their resolution. It also should periodically collect and make publicly available a report that details the number of informal and formal harassment and discrimination complaints asserted (regardless of whether they were resolved), the number of settlements, and, where public funds are used to resolve a complaint, aggregate award amounts by office. Taxpayers and constituents will have a clearer understanding of the workplace culture and practices in each office if this information is made publicly available, because not every claim of discrimination will result in a settlement or award.
However, any such tracking and reporting must protect the identity and confidentiality of the complainant. Publicly revealing victims’ identities can result in retaliation and adverse consequences for them, including being blackballed from other jobs within the General Assembly, effectively ruining careers. For that reason, public reporting should not occur more than once a year, and should avoid detailing the number of each type of discrimination claim filed per office per year, in order to strike a careful balance between the need for transparency regarding harassment and discrimination claims and resolutions, and safeguarding the identity and privacy of complainants, which may be more easily breached if reporting occurs more frequently and in more detail.
D. Reforms Must Promote Comprehensive Prevention Practices.
Preventing workplace harassment and discrimination should be a top priority and goal of every leader in the legislative workforce.
HB 1342 calls for the development of a code of conduct for the General Assembly, which is a critical component of prevention. Every office also should be required to have strong anti-discrimination and anti-harassment policies in place that help employees understand what prohibited conduct looks like; explain how to report harassment or discrimination within the office, the legislature, or to an independent authority, and provide multiple avenues for reporting; outline the process for investigating and responding to complaints; assure confidentiality; detail the consequences for harassment, discrimination and retaliation; and provide internal and external resources for support, including information about the role of the independent authority.
Current anti-harassment and discrimination training for legislators and staff must be revised to become to strengthen effectiveness. The training must do more than merely seek to ensure compliance with the law, and instead should be tailored to this particular workplace context; help instill a culture of respect within the General Assembly; enable members of the legislative workforce to understand their rights and responsibilities; empower them to intervene in a situation as bystanders or to report safely without retaliation; and most importantly, set out standards that will ensure that legislators and their staff do not engage in conduct that leads to a workplace culture that increases the likelihood of unlawful behavior.7
We recommend that at least some part of the trainings for staff be conducted separately from those for legislators. Staff members may be reluctant to reveal or discuss issues of harassment or discrimination they confront in their day-to-day work in front of senior staff or legislators for fear of retaliation, or developing a reputation for being a “troublemaker” or for “disloyalty.” Additionally, legislators’ role as the head of their individual office and as a supervisor of their staff suggests they should receive extra training about their appropriate roles and responsibilities.
The General Assembly also should take steps to ensure that legislators and staff fulfill any training requirement. HB 1342 directs the Office of the Executive Director to maintain electronic records of each legislator, employee of the General Assembly, and employee of the Department of Legislative Services who completes training. The Women’s Caucus Report recommends that the legislature make anti-harassment training attendance by legislators subject to the Maryland Public Information Act. Alternatively, the General Assembly could make publicly available on its website a list of members that have and have not completed the training.
Additionally, HB 1342 provides for the creation and implementation of a regular, anonymous climate survey of the legislative workforce, which we believe is a critical component of prevention efforts. The survey will help you understand the true nature and scope of harassment and discrimination in the General Assembly, and the efficacy of the policies and procedures designed to prevent and address harassment and discrimination.
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In conclusion, as the movement ignited by #MeToo shows, for too long, individuals have suffered workplace harassment in silence, with little or no accountability for harassers. Now more than ever, the General Assembly must step forward to expeditiously implement reforms that will refashion systems, laws, and culture to ensure that victims are no longer afraid to come forward, a fair and credible system for assessing complaints, harassers are held accountable, and harassment is prevented.
We appreciate your critical efforts to ensure that the General Assembly is a safe and equitable workplace, and we welcome the opportunity to assist you.
1 Ovetta Wiggins, Md. General Assembly to create panel to examine harassment issues, WASHINGTON POST, Jan. 9, 2018, https://www.washingtonpost.com/local/md-politics/md-general-assembly-to-create-a-commission-to-examine- harassment-issues/2018/01/09/4c55160a-f57d-11e7-b34a-b85626af34ef_story.html?utm_term=.9f2b03bf4e1a.
2 WOMEN’S CAUCUS, MARYLAND GENERAL ASSEMBLY, REPORT: SEXUAL HARASSMENT POLICY RECOMMENDATIONS (Feb. 2018), https://www.womenscaucusmd.org/reportoverview/ [WOMEN’S CAUCUS REPORT].
3 WOMEN’S CAUCUS REPORT, supra note 2, at 9.
4 WOMEN’S CAUCUS REPORT, supra note 2, at 10; Erin Cox, Maryland senator accuses lobbyist of improper touching, THE BALTIMORE SUN, Mar. 2, 2018, http://www.baltimoresun.com/news/maryland/politics/bs-md-kagan-genn-20180302- story.html.
5 WOMEN’S CAUCUS REPORT, supra note 2, at 7.
6 The Women’s Caucus Report recommends the expansion of the list of possible disciplinary actions for legislators. See supra note 2, at 8.
7 The Women’s Caucus Report includes several important recommendations to strengthen current anti-harassment training. See supra note 2, at 6-7.