When it comes to harassment claims, pol­i­tics is a dif­fer­ent play­ing field

The Washington Post - - FRONT PAGE - BY KAREN TUMULTY

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.

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