Editorial: How to make sexually misbehaving politicians pay

If a lawmaker is accused of sexual harassment, why should the taxpayers be the ones who end up paying to settle the case? Wouldn’t it make more sense for the official himself — the individual accused of the wrongdoing — to pay? Wouldn’t that be more likely to discourage harassment by public officials and be fairer to taxpayers as well?

Some people clearly think so. Sexual harassment legislation proposed by Rep. Jackie Speier (D-Hillsborough) and Sen. Kirsten Gillibrand (D-N.Y.) — the ME TOO Congress Act — contains a provision that would require members of the U.S. House and Senate to reimburse the U.S. Treasury if they settle a complaint of any workplace violation, including sexual harassment or racial discrimination. California Assemblyman Kevin McCarty (D-Sacramento) said he is considering introducing similar legislation to cover members of the state Legislature. Taxpayers would be off the hook.

But while that may sound like a good idea, it’s actually problematic, and could make it harder to curb sexual harassment in the political workplace.

Of course it’s galling that the public sometimes has to pay if a congressman or state legislator can’t keep his hands to himself, but there’s actually sound reason for it: It’s how we build accountability. Obviously a public official who gropes or assaults an employee is to blame for his own actions — but the failure goes further than that. The system is at fault as well.

In the private sector, employers are held accountable if their employees violate workplace laws designed to protect against harassment, discrimination and other abuses. Why? Because it is employers who are supposed to police those behaviors. Were the proper rules made clear to employees? Were the rules enforced? Were complaints taken seriously? Was swift corrective action taken?

That goes for government as well. And we, the voters and taxpayers, are the ultimate employers of government officials.

Think about it. If the owners and shareholders of a company don’t have some financial exposure for sexual harassment, why bother to root it out? The same is true for public agencies such as the Los Angeles Police Department. When someone files a complaint against an LAPD officer alleging misconduct, the city pays out any settlement or judgment, not the officer. Employment law experts make the point that sexual harassment laws and cases are more about a workplace culture than about a single incident or a single perpetrator. As attorney Jean Hyams recently put it during an Assembly subcommittee hearing, the central question in sexual harassment cases isn’t how the harassment happened, but why it was allowed to happen. How did it come to pass that the employer didn’t stop the abuse before it became a pattern? In the case of Congress or the California Legislature, the entire body as well as its leaders — and the voters that employ them — should have an incentive to fight the culture of harassment.

What else can be done to encourage government officials not to engage in sexual misconduct? Well, for the elected ones at least, the one thing they value as much as, or even more than, money is their ability to get elected. That’s why greater transparency about sexual harassment complaints and settlements might have as much of a deterrent effect on politicians as having to write big check (especially since there’s some question about whether the law might allow legislators to use donations to cover the payouts). Clear rules and consequences regarding misconduct are also essential.

Speier and Gillibrand’s payout proposal is misguided. But their bill is right to require that settlements of sexual harassment, discrimination and other workplace cases be publicly reported, and that the name of the legislator in whose office the violation occurred be identified. The state Legislature should consider similar measures. Both bodies should also track complaints and put this information online as well.

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