The opaqueness of Congress’ workplace rules hangs over the Tara Reade allegations about Biden

Secretary of the Senate says law prohibits disclosure of any complaint

Democratic presidential hopeful Joe Biden has called for Tara Reade’s complaint to be released, but the secretary of the Senate has declined.  (Caroline Brehman/CQ Roll Call file photo)
Democratic presidential hopeful Joe Biden has called for Tara Reade’s complaint to be released, but the secretary of the Senate has declined. (Caroline Brehman/CQ Roll Call file photo)
Posted May 7, 2020 at 5:00am

Why is Tara Reade’s official complaint against former Vice President Joe Biden so hard to find? Possibly because the system for lodging it was opaque and challenging for accusers.

Reade, a onetime Biden staffer, says she filed a complaint against him in 1993 when he was in his fourth term in the Senate representing Delaware. The process would have subjected her to a system that did little to protect Capitol Hill staffers from retribution and offered little recourse if they were not satisfied with the outcome.

It would take a 1995 overhaul of congressional personnel laws to bring Congress in line with federal labor and anti-discrimination laws. Even almost 30 years later, the alleged complaint — the secretary of the Senate won’t even confirm or deny whether there is one — may never be released because of strict disclosure rules.

Biden wrote the secretary of the Senate on May 1, asking the office to release any complaints Reade made against him. The office declined, saying confidentiality requirements in the Government Employee Rights Act of 1991 gave it no discretion to disclose the information.

“Furthermore, we are not aware of any exceptions in law authorizing our office to disclose any such records that do exist, if any, even to original participants in a matter,” a statement from the secretary’s office read.

Making a report

For employees hoping to file a complaint in 1993, rules required House aides to report the issue to the Office of Fair Employment Practices.

The complaint would be evaluated by a single OFEP hearing officer, appointed by the House Administration chairman and ranking member. If either party was dissatisfied with the result, it could be appealed only to an eight-member review board appointed by members of House leadership and members of the House Administration Committee.

Not happy with the appeal? Sorry, House employees, there was no further recourse.

For Senate employees like Reade, that chamber’s fair employment practices office allowed employees to take complaints to a federal appeals court, after they went through the chamber’s complaint process.

Betty Johnson, a Senate custodial worker, was the first to test the right to an appeal after she said she was denied a 1991 promotion because of her religion. Johnson, who represented herself, lost her appeal in September 1994.

In her original complaint, she also alleged she was the victim of sex discrimination, but didn’t ask the federal court to review that claim, according to a Roll Call article from the time.

Reade told The Associated Press and NPR that in the complaint she filed with Office of Senate Fair Employment Practices, she didn’t use the terms sexual assault or sexual harassment when describing the incidents she says she faced from Biden.

“I know that I was too scared to write about the sexual assault,” she told the AP. “The main word I used — and I know I didn’t use sexual harassment — I used ‘uncomfortable.’ And I remember ‘retaliation.’”

A survey commissioned in 1994 found that more than half of House staffers said they feared that filing a complaint with OFEP would jeopardize their prospects for finding another job on the Hill, according to Roll Call’s archives. Forty-five percent said they were afraid to file a complaint out of fear of direct retribution from their bosses.

Congressional accountability

On the very first day of the 104th Congress in 1995, new Speaker Newt Gingrich of Georgia led his Republican colleagues to pass the Congressional Accountability Act. The legislation overhauled a tangle of employee protections and extended congressional employees the same health, safety and civil rights protections afforded by law to workers in other branches of the federal government and in the private sector.

The 429-0 vote was one of the first bills passed in a marathon session on the first day that Republicans held the chamber’s majority in nearly 40 years, as they honored their “Contract With America.”

“If a law is right for the private sector, it is right for Congress,” said Rep. Christopher H. Shays, R-Conn, a sponsor of the bill

The Senate bill, sponsored by Sen. Charles E. Grassley, R-Iowa, saw five days of floor debate and passed 98- 1.

Sen. Robert C. Byrd, D-W.Va., cast the sole “no” vote, arguing it would let the executive and judicial branches interfere with the legislative branch.

The Office of Compliance was set up to enforce the new law — first through counseling, and then by arbitration and issuance of orders. Employees also had the right to take grievances to federal court.

Filing a harassment complaint under the 1995 law was lengthy, complicated, secretive and left out interns and congressional fellows who had no recourse for harassment or other violations.

Congressional employees were granted up to 180 days after an alleged incident of harassment to request 30 days for counseling, the required first step. Then, a 30-day mediation, where the employee and the office could confidentially reach a voluntary settlement.

Only after at least two months of those steps, and within a narrow 30- to 90-day window, could the employee request an administrative proceeding before a hearing officer or file a case in federal district court. Following an administrative hearing, the employee could appeal to the Office of Compliance board.

Enforcement has always proved difficult on Capitol Hill because, unlike federal agencies, there is no central office for managing workplace issues, enforcing strict pay scales and overseeing management practices. House and Senate member offices operate as a federation of independent offices, each with their own policies and latitude when setting pay scales and time-off policies.

The CAA aimed to bring some blanket protections for workers, but with 535 lawmakers essentially running their own shops and no one-stop shop for human resources, the path forward for an aggrieved or distressed employee was murky.

Loading the player...

#MeToo spurs overhaul

Rep. Jackie Speier, D-Calif., who went public about the harassment she faced as a House staffer, said in 2017 that there was no effective check on such behavior under the Congressional Accountability Act’s procedures.

Efforts to overhaul the law, which hadn’t been updated significantly, began in late 2017 when the #MeToo movement that brought attention to sexual harassment and assault of women, came to Capitol Hill.

High-profile resignations over sexual harassment claims in both chambers highlighted the changing power dynamics.

Four in 10 women who responded to a 2016 CQ Roll Call survey of congressional staff said they believed sexual harassment was a problem on Capitol Hill, while one in six said they personally had been victimized.

“Unfortunately, due to the system that Congress created to protect itself from being exposed, there has been no accountability,” Speier said.

Between 1997 and 2014, the U.S. Treasury paid $15.2 million in taxpayer dollars toward 235 awards and settlements for Capitol Hill workplace violations, according to the congressional Office of Compliance. Allegations of sexual harassment and/or misconduct led to the resignations of Sen. Al Franken, D-Minn., and Reps. Blake Farenthold, R-Texas, Trent Franks, R-Ariz., and John Conyers Jr., D-Mich, among others.

Members of both parties criticized the system for reporting and resolving harassment established by the CAA.

“We need to have a prohibition on any kind of member-staff relationship with subordinates. No taxpayer settlements. And transparency and accountability about who are the harassers,” Rep. Barbara Comstock, R-Va., said on the floor in 2017.

In the final days of 2018, the House and Senate reached agreement on a compromise bill that overhauled the process.

That December, Congress passed legislation that holds lawmakers, including those who leave office, financially liable for settlements resulting from harassment and retaliation. Lawmakers are liable for the sum of any settlement and up to $300,000 of any award ordered by a court if their personal behavior is implicated.

It also requires public reporting of settlements, including identification of lawmakers, and extends protections to interns and fellows. In the case of a court award or a settlement, lawmakers who don’t reimburse the payment in a lump sum could have their wages, or possibly their Social Security checks, garnished.

The new system eliminated mandatory counseling and mediation for accusers, as well as a “cooling off” period that was required before further action could be pursued.

Staffers are now permitted access to a confidential adviser who is a lawyer and able to offer technical assistance, advice and guidance, but not legal representation. The House provides staffers access to House counsel, an extra protection not included in the final bill.

Biden has said he has “nothing to hide” regarding Reade’s allegations, but the law governing disclosure doesn’t allow records to be released, even to the people involved.

Biden donated his senatorial papers to the University of Delaware, but says personnel records weren’t included in that donation. It is not uncommon for senators donating their archives to exclude such personnel records. The university won’t release Biden’s papers until “two years after the donor retires from public life.”

There’s no doubt the hunt for records of Reade’s allegations will continue. But what is contained in such an alleged complaint, how it aligns with her public statements and how it would have been handled by a twice-overhauled system remains a mystery.