Letter from Maryland Women's Caucus President, Delegate Ariana Kelly
Dear Maryland Legislative Leaders,
It is with great hope for the future that we present the Recommendations For a Harassment-Free Legislature developed by the Women’s Caucus of the Maryland General Assembly. There are specific actions we can take that will make meaningful change to end sexual harassment in our legislative community.
Sexual harassment is nothing new – it has pervaded our workplaces before it even had a name. The term was first used in the 1970s but it was not until 1986 that the Supreme Court held that sexual harassment is a form of sex discrimination and therefore a violation of Title VII of the Civils Rights Act of 1964. However, Title VII of the Civil Rights Act specifically exempts elected officials and their personal staff from protections against discrimination. Our state statute which governs the Commission on Civil Rights contains the same carve out for elected officials and their personal staff.
Nonetheless, in 1993 the Maryland General Assembly became the 29th state in the nation to voluntarily develop an internal policy against sexual harassment. This was following high profile allegations of sexual harassment against a legislator that were raised by a lobbyist in judicial confirmation hearings. Unfortunately, as noted by the Baltimore Sun at the time, the policy established in 1993 did not extend protections to lobbyists. It did, however, establish an internal process for staff and members to report sexual harassment. Under this policy, all reports against members would be handled by the Presiding Officers or their staff. The policy maintains the same basic structure today, although it has been updated and modernized multiple times.
Despite this progress, the problem is far from solved. The recent #MeToo movement has brought to light a culture in which sexual harassment is still pervasive, and its harm too often ignored. According to the Equal Employment Opportunities Commission (EEOC) at least one in four women in this country experience sexual harassment in the workplace.
For these reasons, the Women’s Caucus of the MD General Assembly has made sexual harassment in the legislature a priority. In 2016, under President Aruna Miller’s leadership the Women’s Caucus created a working group to research the current process of sexual harassment reporting and review policies and best practices in other states. We conducted confidential interviews with staff and interns to try to understand the extent of the problem, how harassment manifests itself in the legislature, and what prevents people from using the reporting process. After reaching out to national experts, the group identified the New York State Assembly’s Policy Prohibiting Harassment, Discrimination, and Retaliation as one of the most comprehensive and innovative policies. We found that the Maryland General Assembly’s policy differed in definitions, reporting, investigation, disciplinary actions, training, and tracking (see Appendix A). At the November 30, 2016 Women’s Caucus Retreat this report was presented, and the caucus agreed to continue our work into the next year.
In 2017, the sexual harassment workgroup reconvened, now chaired by Delegate Tawanna Gaines, and was charged with evaluating the Maryland General Assembly’s current sexual harassment policy and, if necessary, identifying areas for improvement. We found a need for greater education on what constitutes sexual harassment, consideration of a climate survey to identify the prevalence of sexual harassment, as well as suggestion for more training. Feedback on the reporting process found that victims felt hesitant to report instances of harassment for fear of retaliation, as well as a perception of conflict of interest pertaining to the Attorney General’s office (see Appendix B).
This session, we picked up from our 2017 efforts, establishing a new working group devoted to finalizing specific recommendations for modernizing our policy, expanding the pool of stakeholders covered to include lobbyists, and measures that would lead to increased confidence in the system. The group has consulted with a wide range of experts, including legal professionals, officials from other state legislatures, and public policy experts including those specifically concerned about false accusations. We also heard from individuals, including those who told stories on the record, as well as many more who shared their experiences anonymously, out of fear of retaliation.
We found there to be significant confusion around the current reporting process, a general reluctance from most stakeholders to report incidents to the presiding officers’ chiefs of staff, a lack of confidence that repeat offenders were being identified, and a desire for the reporting and investigatory process to be further removed from the political context. There was also a desire for stronger confidentiality protections, and increased emphasis of the role of active bystanders in preventing or intervening to stop harassment. In addition, there was a strong desire to expand our policies to cover lobbyists.
Based on all of this work, the Caucus has developed 22 recommendations, which were adopted by the full body of the Women’s Caucus on February 7, 2018. These recommendations have been organized into four categories: training, reporting, accountability and culture change.
Recommendations include not simply more training, but also better training that is tailored to our community’s specific needs. We identify best practices, including those identified by the EEOC and those used in other state legislatures. For those members with special roles, additional training is recommended.
Our current system is not trusted by those who need it most. Recommendations for improving the reporting process include developing a truly anonymous reporting mechanism, creating multiple well-trained points of contact for receiving initial reports, increasing and clarifying confidentiality protections, as well as developing more robust protections against retaliation. It is important to note that nearly every person we spoke with about the current reporting system pointed to the policy of reporting immediately to the Presiding Officers’ staff as uncomfortable. We recommend redeveloping the reporting system to be as removed from the political context as possible.
We would like to increase confidence that members who engage in repeated behaviors of sexual harassment will be held accountable. Our recommendations would require the use of independent investigators to conduct investigations into alleged member misconduct, to remove the responsibility from any political stakeholders. We also recommend clearly stating in the policy that engaging in sexual harassment or sexual misconduct could lead to loss of current or future leadership position. While we celebrate that data collection of complaints was established in December 2017 by the Legislative Policy Committee, we recommend this be expanded to include tracking of all incidents and reports, including anonymous complaints and those received by all Chairs, Vice-Chairs, and anyone trained to receive initial reports. Now that we are tracking data, we want to make sure our system is capturing as much as possible, not just those reports coming through the Presiding Officers’ and Human Resources offices. Finally, we recommend establishing accountability procedures for registered lobbyists. Right now, there is no mechanism for holding registered lobbyists accountable when they engage in sexually harassing behavior, which was an issue we heard about from several people we interviewed.
A cultural evolution is taking place right now. As leaders are stopping to listen to the voices of those who have experienced harassment, and to learn about the implications of this harassment on their careers and personal well-being, they are developing empathy and deepening their understanding. It is this understanding that will lay the foundation for an improved climate which does not tolerate demeaning or sexualizing of women in the workplace. Real prevention requires an accurate understanding of our current climate and strong unwavering leadership from the top down to improve that climate. Recommendations include a climate survey that would provide specific information about our community, and will allow us to measure progress over time.
There are modest steps that we can take to address this important challenge. We look forward to working with the newly appointed Workplace Harassment Commission and applaud its mandate to create an environment free from all forms of harassment. Gender experts have long called for an intersectional approach to social change, and this commission is another opportunity to continue that work.
It’s an exciting time for all of us who care about healthy workplace culture. Our work is far from done; we look forward to working with you without delay to implement these and any other recommended changes.
Delegate Ariana Kelly