Sexual harassment bills target public official misconduct

The conversation about workplace sexual harassment dominated headlines nationwide in 2018, and Indiana was no exception. The governor publicly declared a “no tolerance” policy during the 2018 legislative session, but that announcement was soon followed by sexual misconduct accusations against Attorney General Curtis Hill and House Speaker Brian Bosma.

Lawmakers and elected officials quickly and loudly condemned sexual harassment in light of those allegations, though critics said the policies in place to prevent harassment at the Statehouse were woefully insufficient. Given that climate, it’s no surprise harassment-related legislation is again being considered by the General Assembly in 2019, this year taking specific aim at elected officials accused of sexual misconduct.

Reardon

Among the lawmakers leading the charge for harassment legislation is Democratic Rep. Mara Candelaria Reardon, one of the four women who say Hill groped them at a party last March. Reardon’s bills seek to hold public officials accountable for sexual misconduct, and she said her personal experiences with harassment over the last year inspired her to protect potential victims statewide.

“I think that oftentimes our legislative agendas are very personal to us,” Reardon said. “… This is not any different.”

A higher standard

Reardon kicked off her work in the 2019 legislative session with four bills aimed at preventing and punishing sexual harassment. House bills 1573, 1574, 1577 and 1581 were premised on conversations Reardon has had with law enforcement, attorneys and community members who have expressed dismay at the prevalence of workplace harassment.

To that end, HB 1577 would protect workers by expanding the definition of employers who can be charged with workplace discrimination from those with at least six employees to those with at least one employee. Further, HB 1574 would create the crime of “lewd touching,” encompassing the rubbing and fondling of a person’s covered or uncovered genitals, pubic area or female breasts without the other person’s consent.

The Munster lawmaker’s legislation also targets elected officials accused of sexual misconduct, drawing on her own experiences with Hill. In the immediate aftermath of the accusations against the AG, state leaders including Gov. Eric Holcomb, Bosma and then-Senate president pro tem David Long, released statements saying Hill’s alleged conduct would not be tolerated if he worked in their offices.

But because Hill is an independent, statewide officeholder, Reardon said there was no mechanism available to punish or remove him from office. HB 1573 would create such a mechanism by establishing an Officeholder Oversight Commission comprised attorneys, judges, lawmakers and law enforcement officials who would investigate complaints of sexual misconduct or other conduct “inconsistent with the high ethical standards” of the officeholder’s office.

If eight commissioners find the accused committed the alleged misconduct, he or she would be removed from office. The policy would apply not just to the attorney general, but also to the superintendent of public instruction, as long as that position is elected.

Further, under HB 1581, statewide officeholders, lawmakers, special appointees and local elected officials would not be permitted to use taxpayer dollars to pay attorney fees or damages if they are charged with a crime in their individual capacity. In Hill’s case, the AG hired outside counsel to defend him in a civil suit brought by Reardon and the three other accusers and created a nonprofit to cover his legal fees.

The lewd-touching bill, HB 1574, also addresses misconduct by public officials, enhancing the offense from a Class A misdemeanor to a Level 6 felony for statewide officeholders and legislators. Additionally, the bill would not require proof of the offender’s intent, as is the case under current sexual battery law. The requirement to prove intent for a sexual battery charge is what kept special prosecutor Daniel Sigler from filing criminal charges against Hill.

Multiple bills

Reardon is not the only lawmaker urging the General Assembly to address sexual harassment this year. She noted Sen. Mike Bohacek, R-Michiana Shores, has likewise filed a bill creating the crime of lewd touching. The difference between Reardon’s bill and Bohacek’s, Senate Bill 81, is that Bohacek’s does not enhance the crime to a Level 6 felony if committed by elected officials, Reardon said. Bohacek did not respond to requests for comment about SB 81.

Pryor

Also, Rep. Cherrish Pryor has put forth House Bill 1046, which would require the elected officials and employees in the AG’s office and in the offices of the superintendent of public instruction, Secretary of State, auditor and treasurer to undergo annual sexual harassment training. The idea, Pryor said, is to ensure those statewide officeholders, who are not beholden to the policies put in place by the governor, receive regular training to prevent workplace harassment.

Additionally, Pryor was one of four lawmakers who had a hand in drafting harassment prevention and response policies now under review by the House and Senate ethics committees. The policies would define sexual harassment and explicitly state sexual harassment committed by a lawmaker is an ethical violation. The policy language, if adopted, would be incorporated into the House and Senate codes of ethics.

Starting point

Hahn

Stephanie Jane Hahn, an Indianapolis employment attorney who represents harassment victims, describes this year’s harassment legislation as a good start, though she and other harassment experts say the policies will need further revision.

Specifically addressing Reardon’s legislation, Hahn noted the bills don’t address harassment victims. The proposed legislation doesn’t lay out a remedial scheme for victims whose complaints are substantiated by the Oversight Commission, Hahn said, noting complainants would be compensated monetarily.

“If an official is accused of sexual misconduct and they get thrown out of office, are they going to get a high-paying job somewhere else? It’s much more likely they’ll end up filing for bankruptcy,” she said. “But if that (the official) is the only place where victims can get money to be made whole, then how will they be made whole?”

Drobac

Jennifer Drobac, a sexual harassment law expert and professor at the Indiana University Robert H. McKinney School of Law, raised similar concerns with regard to the Indiana Civil Rights Act. The act currently requires employers to consent in writing to being sued by an employee, Drobac said, and even if that consent is obtained, the employee will likely receive back pay as compensation. But if the employee never quits their job — which is often the case for people who can’t afford to miss a paycheck, she said — then their compensation is limited.

Drobac also raised concerns about the legislative policy under review by the ethics committees. The policy’s definition of sexual harassment is too narrow, she said, while the review process — which would include an investigation by the ethics committee – does not keep voters sufficiently informed of lawmaker conduct or misconduct.

What’s the outlook?

Though this year’s legislation largely focuses on sexual misconduct by public officials, Reardon said her research into the issue has revealed that harassment is an issue in businesses across the state. Even so, she and other lawmakers are not sure how their proposed legislation will be received.

HBs 1577 and 1581 have both been assigned to the House Judiciary Committee, while 1573 is assigned to the Government and Regulatory Reform Committee and 1574 is in the House Committee on Courts and Criminal Code. HB 1046, Pryor’s bill, is also in the Government and Regulatory Reform Committee, while SB 81 is before the Senate Committee on Corrections and Criminal Law.

Noting her bill is fiscally neutral, Pryor said she hopes HB 1046 can at least get a hearing considering sexual harassment training is “something that should be getting done anyway.” Pryor said the sexual harassment accusations that came out last year illuminated a policy void that needed to be filled.

As of IL deadline, none of the bills had been scheduled for a committee hearing. However, revisions to the Senate Code of Ethics have been approved by the Senate Ethics Committee, and the House Ethics Committee was scheduled to vote on its proposed sexual harassment policy language on Jan. 22.•