When it comes to harassment claims, politics is a different playing field
The swiftness with which NBC got rid of marquee morning host Matt Lauer on Wednesday amid accusations of sexual harassment stands in stark contrast to the slow-rolling justice playing out against political figures of both parties.
That disparity also underscores how the burgeoning national conversation around sexual abuse has both elevated the issue and muddied the question of how to deal with it proportionally and consistently.
New charges are coming from nearly every direction: the polit- ical world, newsrooms, Hollywood, Silicon Valley. And they describe a wide variety of behavior, including rape, unwelcome kisses, sexual advances toward minors, and grabbing a breast or buttock.
“We have to preserve the uniqueness of every situation. That’s at the heart of this,” said Democratic strategist Tracy Sefl, who is on the board of the Rape, Abuse & Incest National Network (RAINN), which operates a
national sexual assault hotline. “In this climate that we’re in, everything has been lumped together. Then people look at it as if those crimes are all the same.”
The tribal nature of today’s politics, meanwhile, has offered a kind of immunity to charges that, if corroborated, would put an abrupt end to the career of someone in any other field. As the net has spread and enveloped prominent Democrats and Republicans, sexual abuse allegations are turning into yet another battle in a zero-sum partisan war where distinctions are often lost between egregious acts and lesser offenses.
“One of the problems right now in dealing with this in politics is that there have been so many contradictions in what is accepted and what is not accepted,” said Risa L. Lieberwitz, a Cornell University professor of employment law.
Outside politics, clearer standards are in place. That is one reason figures such as movie producer Harvey Weinstein, NPR news chief Michael Oreskes, television personality Charlie Rose and now Lauer were dealt with so quickly, once allegations against them surfaced.
Physical assault is illegal. And while workplace rules are far from airtight or consistent, they are based on guidelines that have been spelled out over decades by the courts, federal and state laws, and corporate human-resource policies.
Under Title VII of the 1964 Civil Rights Act, which bans employers from discriminating on the basis of sex, it has been deemed illegal to make unwanted physical contact with workers, to make hiring or promotion decisions contingent on sexual favors, or to take retribution on those who rebuff sexual advances. Employers can also be held liable if they do not take measures to guard against a hostile workplace.
At the same time, the Supreme Court has ruled that Title VII does not go so far as guaranteeing what the late Justice Antonin Scalia called “a general civility code for the American workplace.”
That means a misguided joke or clumsy pass by a co-worker will not necessarily touch a legal tripwire, although it might run afoul of a company’s policies. It also suggests, some experts say, that lines should be drawn between boorish acts that happened once or twice among acquaintances or co-workers and a pattern of abusive behavior by a boss.
“There is definitely a distinction to be made,” said Equal Employment Opportunity Commission member Chai Feldblum, who co-chaired the EEOC’s task force studying harassment in the workplace, which issued a report in 2016. “Not every act of harassment deserves the same [treatment], because people need to feel the system is fair.”
On the EEOC’s website, traffic on content related to sexual harassment has quadrupled since October, Feldblum added.
This new attention to the issue is also prompting businesses to rethink their policies.
“They’re looking again to make sure that what their policies are and what their cultures demand are actually happening in the workplace,” said Kelly Marinelli, a consultant on personnel issues who advises the Society for Human Resource Management.
In politics, on the other hand, the initial impulse of each side has been to circle around its own while declaring that the transgressions of the other are disqualifying.
Democrats argue that actions for which Sen. Al Franken (DMinn.) has apologized should not end his career as long as President Trump is allowed to sit in the White House. Republicans say Democrats who are in full cry over allegations against Trump showed no such regard for the parade of women who accused former president Bill Clinton of similar behavior.
Two key tests are in the offing that could show whether new attention to the issue has shifted the political calculation.
In Alabama, GOP Senate candidate Roy Moore, fighting allegations of sexual misbehavior with teenagers, has adopted Trump’s strategy of calling his accusers politically motivated liars; a Dec. 12 special election will determine whether it works.
And the senior member of the House, Rep. John Conyers Jr. (D-Mich.) is teetering near resignation as more and more former staff members step forward with accusations that he made unwanted sexual advances.
The allegations against Conyers and Franken have presented Democrats with a quandary. They have attacked Trump and Moore on the issue, and some in the party fear they risk losing the high ground if they tolerate transgressions in their own ranks.
For politicians and their parties, due process comes at the ballot box.
“Voters decide who gets to serve them in office,” said GOP consultant Katie Packer Beeson. “These offices should represent the best America has to offer. We shouldn’t be dumbing this down so any creep can hold office.”
Beeson — a vocal critic of the president — argues that questions about Trump have been settled but that Franken, who has begun to face allegations only in recent days, should resign.
What makes Franken’s situation different from Trump’s is that “this information was out there about Trump,” she said. “The voters made a decision about Trump.”
Congress is in an unusual situation. It gets to make its own rules for handling sexual misconduct complaints and exempts itself from the workplace rules that often apply to others.
The current procedures put the accuser in the excruciating situation of having to undergo mediation with the accused person, guarantee anonymity for the alleged perpetrator and put the taxpayer on the hook for any settlement.
Republican Newt Gingrich, who was House speaker when the regulations passed in 1995, says he does not recall precisely how they came about. But he recognized the instincts at work: “Remember: Every member of Congress starts with the paranoia that somebody could come out of nowhere, make an allegation and you are in danger of losing your reelection.”
The congressional ethics process also tends to move slowly. In the 1990s, for instance, it took nearly three years from the time that sexual harassment allegations surfaced against Sen. Bob Packwood (R-Ore.) to his ultimate resignation.
In the current outcry, the balance of power could be shifting in sexual abuse cases. The House on Wednesday approved legislation to require sexual harassment training of members and their staffs.
The question now is whether it will go further, as some of its members want, making public the identities of lawmakers who settle sexual harassment complaints and requiring them to pay those settlements out of their own funds.
“Sexual harassment has no place in any workplace — let alone the United States Congress,” Speaker Paul D. Ryan (R-Wis.) said Wednesday. That is an easy declaration to make, but one that remains a long way from being a reality.