Major changes needed in Capitol sexual harassment investigations, legislators told

SACRAMENTO — A prominent labor law attorney gave the state Legislature a harsh assessment of what it must do to curb sexual harassment during a hearing on Thursday.

The hearing happened on the same day Sen. Tony Mendoza, D-Artesia, sued the Senate for suspending him while he is investigated for harassment complaints. Mendoza has claimed the suspension is illegal, and that he is being treated differently than other legislators under suspicion.

The Legislature’s inconsistent approach to investigations was a key point raised by Wendy E. Musell, a partner with Stewart & Musell LLP in San Francisco who chairs the executive board of the California Employment Lawyers Association..

Musell testified at an information hearing held by Legislature’s Subcommittee on Sexual Harassment Prevention and Response.

The committee was recently reconstituted after being moribund for a decade in order to address the sexual harassment scandals that have roiled the Capitol since October. Other committees have been assigned to look at workplace harassment in general.

“This really needs to be a zero tolerance workplace,” Musell said. “The reason for that, in large part, is because otherwise people are not going to come forward. You are going to have years of entrenched behavior that doesn’t come forward, until you end up with multiple complaints of egregious conduct.”

While the words “zero tolerance” have been used repeatedly to describe what the Legislature should do in the wake of recent scandals, Musell outlined a response designed to remove the inconsistencies that have plagued past investigations.

“If you receive a report that there is discrimination, harassment, or retaliation in the workplace, that should be subject to an investigation,” Musell said. “It should not be up to discretion.”

She called for an expansion of whistleblower protection laws and a new policy that states that investigations of workplace harassment in the Legislature won’t be covered by attorney-client privilege. Musell also called for the creation of an ongoing complaint database and a standardized burden of proof.

Such a strict approach is needed, she said, because of the unusual dynamics of the Capitol undermine many of the protections enjoyed by other workers.

“The panel needs to understand the unique aspects of this workplace,” Musell said. “Each member has ultimate hiring and firing authority.”

Other panelists talked about methods used to catch harassment before it gets out of control.

“For legislatures, when we talk about accountability, we also mean accountability to the public,” said Andrea Johnson, the senior counsel for state policy at the National Women’s Law Center. “That means transparency.”

Johnson recommended barring or limiting the use of public funds for paying settlements. She also called on the Legislature to start using regularly scheduled anonymous climate surveys. These would allow employees to disclose perceived problems in the workplace before official complaint come to light.

Lizbeth V. West, an employment law specialist and partner with Weintraub Tobin in Sacramento, characterized the Capitol’s issues as having less to do with the harassment itself than the retaliation that prevents complaints. In this way, she added, the Legislature is like many other employers.

“More money is recovered in retaliation lawsuits than in discrimination and harassment lawsuits,” West said. “When I meet with my clients, I tell them this is the area of the law you need to pay attention to.”

Later, former state Fair Political Practices Commission Chair Ann Ravel testified the agency was “well suited” to leading investigations of sex harassment. She noted the agency already has staff and procedures in places for investigating wrongdoing by legislators and other political actors.