Proposed Statehouse sexual harassment guidelines ‘shockingly dated,’ says law professor

An Indiana employment law professor calls the proposed guidelines to combat sexual harassment at the Indiana Statehouse “shockingly dated” and designed to insulate lawmakers from liability.

“The proposal is grossly under-inclusive and arguably a waste of time and resources since the legislature could easily just affirm that all of its state employees, contractors, members, unpaid workers, interns, etc., are subject to federal and state law,” said Jennifer Drobac, a law professor at Indiana University’s Robert H. McKinney School of Law.

The personnel subcommittee of the Legislative Council was commissioned by the Indiana General Assembly in the last session to prepare and recommend sexual harassment prevention policies. The subcommittee met in a closed-door executive session Nov. 7 to finalize the proposed policy changes. Tuesday is the deadline for approval.

TheStatehouseFile.com asked Drobac to review the 20-page report because of her expertise in gender-based harassment, discrimination and employment law. She is also the author of a widely used textbook on sexual harassment law.

Drobac, in her review, said the proposal is internally inconsistent, and it is unclear based on the language if it will protect unpaid workers such as volunteers and interns.

Specifically, the personnel subcommittee calls for more training as well as amendments to the codes of ethics in the state House and Senate that would allow the ethics committee to take up complaint from anyone alleging misconduct by a member, including sexual harassment and retaliation.

The proposed changes define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Drobac, in her analysis, said Indiana is relying on a definition of sexual harassment that dates to the 1980s.

“Federal case law has expanded the definition of sex-based harassment to include more than sexual harassment,” Drobac wrote. “Sex-based harassment includes sex-based and gender-based hostility, including gender policing and violence.

“Surely, Indiana should enter the 21st century and provide a comprehensive definition of sexual harassment. If not provide a model for other states, it should at least conform with the 1993 understanding of federal law.”

Drobac questioned the wisdom of House Majority Leader Brian Bosma, R-Indianapolis, being involved in the process of revising the sexual harassment policies. An ethics complaint has been filed against him for using campaign funds to investigate a woman who said she had a sexual relationship with him in the early 1990s.

The proposed policy says that the speaker or other member of the ethics committee shall not participate in the review of a harassment claim if they are the subject of the complaint.

“However, what if they are the not the subject of the particular complaint but have conflicts of interest or a history of inappropriate (or ineffectual, i.e. failure to properly investigate) behavior,” she questioned.

State Sen. Tim Lanane, D-Anderson, a member of leadership on the subcommittee, said the panel’s work helps clarify the rules that are already in place. Another member, Rep. Holli Sullivan, R-Evansville, said she believes they did a comprehensive job.

“It sends a clear message that we’re taking allegations of sexual harassment very serious,” Lanane said.

Sen. Liz Brown, R-Fort Wayne, also a member, said the Legislative Services Agency did the background work to help them prepare the report, and members reviewed the policies of more than 30 other states and entities.

Sen. Karen Tallian, D-Portage, part of the subcommittee, said she would be surprised if the Legislative Council doesn’t offer suggestions to revise the proposal.

She said the meeting was conducted in private because a working draft was not yet available.

Luke Britt, Indiana’s public access counselor, said the work of a legislative subcommittee is not covered by the state’s open door laws.