By Seth Ogilvie, Idaho Reports
The Idaho Legislature will have a new policy on harassment this year. The plan comes in the wake of numerous highly publicized nationwide events and a few lesser-known incidents at the Idaho Statehouse. Senator Cherie Buckner-Webb who co-chaired the Respectful Workplace Task Force Committee said, “There have been stories. There’s folklore about things that have happened in this body.”
Countless legislatures and businesses throughout the country are undertaking the same changes. “This was something that needed to be done for a long time, and there’s been a cry across legislatures and across the United States,” Sen. Buckner-Webb said.
The Idaho Legislature did not have an articulated procedure before this and complaints did not have a standardized method. “There wasn’t a process whereby someone could report and feel confident that it would be acted upon,” Sen. Buckner-Webb said. There was no way of quantifying what was going on.
The new policy lays out definitions of harassment and puts procedures in place to process complaints. “They did well on how the committee is going to investigate and how they’re going to punish people,” said Monique Lillard, Professor of Law at the University of Idaho and past president of the Employment Discrimination section of the Association of American Law Schools. “I think they covered all of the important components.”
“Our goal is to interrupt any harassment that might be going on, to eliminate harassment and to protect all the folks that work in this building,” Sen. Buckner-Webb said. People should thrive, she added, and not be fearful of harassment when they come to work.
The policy has noble goals, but it may have a few mechanical flaws. The policy states people, “should submit a complaint directly to one of the appropriate contact persons.” That is just one singular person, not the committee. The policy lists nine positions consisting primarily of leadership for the legislature and the staff who people can approach with a complaint.
That one person contacted has ultimate discretion. They can consult with the Office of the Attorney General or any member of the Respectful Workplace Committee, they can bring the complaint to the committee, or they can resolve the charge themselves. “That could allow for massaging things so that they’d go away,” Lillard said. “Sometimes that’s good, but sometimes that’s a cover-up.”
“There is much power in that one individual to say ‘Oh, this isn’t worth passing on,’” Lillard said. “That could be a place that important matters could get quashed, but then that (complainant) could go to somebody else.”
Another possible flaw resides in the record keeping. Every complaint is recorded “under the complainant’s name,” according to the policy. Those records will be “retained for three years following termination of employment or service.”
“It ought to be under the accused’s name,” Lillard said. “Not under the complainant’s name, we can all think of nationally known politicians who might have a long list of accusations.” Under this system, a politician accused of harassment would not have a file, but the person who accused that politician would have a file. If an intern were to accuse a legislator, then three years passed or less than two legislative terms, that complaint could be erased from the record.
Then there is the problem of confidentiality. The records can only become public if a court compels it or if the “person, or persons, against whom the complaint is filed consents in writing to disclosure,” the policy states. The person who made the complaint would seemingly not have access to the complaint or be able to ensure it’s confidentiality if the person they accused wanted it public. “The confidentiality resides in the accused,” Lillard said.
There also may be unintended consequences. “It’s sometimes called the “Mike Pence rule” because he doesn’t go to lunch or dinner alone with women,” Lillard said. Shortly after the workforce training session in the 2018 legislature men in the statehouse began openly contemplating not meeting with women alone. “Some members of the body said, I’m not going to do anything that can put me in the least bit of harm’s way,” Sen. Buckner-Webb said. Some politicians didn’t want to have lunch with a lobbyist or have a woman in their office.
Segregating oneself off from a group of people for fear of what they may accuse you of is a big problem for a woman or any marginalized person because that denies them access, friendship and a seat at the table when deals are made. “There’s a right to talk to your elected representative and to have them say; ‘Well I won’t talk to you unless you bring somebody else with you or unless I bring somebody else in this room,’’Lillard said. “I find that really troubling.”
The Pence rule could also be illegal discrimination based on gender. “Women shouldn’t have to run some gauntlet of leaders and people grabbing at them when men don’t have to run that gauntlet. It keeps women from moving forward in the workplace if they have to endure insults or slurs or come-ons or whatever,” Lillard said, “It’s completely ironic if the anti-harassment law results in flat out, blatant discrimination.”
The lesbian, gay, bisexual and transgender community have no protections from discrimination, nor would they be protected by this policy, because they are not a protected class in Idaho. “But I would like to think (the policy) is inclusive although that is inferred if it’s not called out, and as you know that community is not included in our Human Rights Act,” Buckner-Webb said, “I’d love to see that changed right away.”
The policy was not a response to the climate within the Idaho Statehouse. This policy was a response to a worldwide reckoning that the halls of power have not been adequately policed and some of the most powerful have been harassing their co-workers. It is a significant change to the Idaho legislature, that had no formal plan in place before. It might not be perfect but “they’re definitely on the right track,” Lillard said.
If you’d like to learn more about the policy Sen. Buckner-Webb is on the November 16th Idaho Reports.