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Policy Arguments for Congressional Exemption

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Policy arguments advanced for excluding congressional employees from various statutory provisions include a Member's need for flexibility in choosing staff who will be loyal and politically supportive of the Member's views," concern over Members' involvement in time-consuming litigation and administrative proceedings, and the possibility that a Member might be subjected to damaging publicity and political criticism of his personnel actions, even if allegations against him are eventually determined to be without merit.

RECENT HOUSE ACTION EXTENDING COVERAGE UNDER CIVIL RIGHTS AND LABOR LAWS

Recent action has been taken in both bodies to apply certain equal employment opportunity and labor legislation to congressional employees.

Fair Employment Practices Resolution

The House in the 100th Congress adopted the Fair Employment Practices Resolution (FEPR)," which specifies that "personnel actions affecting

The potential for "disruption" can be seen in a scenario in which an employment discrimination complaint against a committee chairman (Rep. John Doe) is pending before an executive agency while the reauthorization bill for the agency is awaiting approval of Doe's committee. Is it possible that the agency might delay proceedings on the complaint by Doe's employee until after the reauthorization measure has cleared the committee to provide the agency with some leverage over Doe? Is it possible that Doe's vote on the reauthorization bill might be influenced by the complaint pending before the agency? Even if neither the agency nor Doe is actually influenced by the fact that, under the circumstances, each is in a position to assist the other (i.e., the agency could dismiss the complaint in return for favorable action by Doe on its reauthorization measure), is there nonetheless the possibility that such a situation would create the appearance of impropriety?

13

The issues were discussed at some length in the Senate debate on the Civil Rights Act of 1990. See 136 Cong. Rec. S9339-72 (daily ed. July 10, 1990). Cf. Davis v. Passman, 442 U.S. 228, 249-51 (1979)(Burger, C.J., dissenting).

14 H. Res. 558, 100th Cong. The provisions of that resolution were continued in effect by H. Res. 15, 101st Cong., and were incorporated in the House rules as Rule LI at the start of the 102d Congress pursuant to H. Res. 5, 102 Cong. According to Constitution, Jefferson's Manual, and Rules of the House of Representatives--One Hundred Second Congress, H. Doc. No. 101-256, 101st Cong., 2d Sess. § 939 (1991), FEPR reiterated the prohibition on discrimination adopted in H. Res. 5, 94th Cong., which is included in the House Code of Official Conduct (House Rule XLIII, cl. 9).

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employment positions in the House of Representatives shall be made free from discrimination based on race, color, national origin, religion, sex (including marital or parental status), handicap, or age." 16 That resolution goes on to state that "interpretations (of the language quoted in the preceding sentence] shall reflect the principles of current law, as generally applicable to employment." 16 Thus, FEPR at least arguably prohibits in House employment. practices various types of discrimination covered under certain statutory provisions.

FEPR also establishes an Office of Fair Employment Practices (Office) and sets up a three-step procedure to be used by an employee who alleges that he or she has been the subject of discrimination in violation of the resolution. The steps are: (1) counseling and mediation; (2) formal complaint, hearing and review by the Office; and (3) final review of a decision of the Office by an eightmember review panel composed of four Members of the Committee on House Administration, two elected officers of the House, and two employees of the House. The Office or a review panel may order the following remedies: (a) monetary compensation, to be paid from the contingent fund of the House; (b) in the case of a serious violation, an additional payment from the clerk-hire allowance of a Member, or from personnel funds of a committee or other entity; (c) injunctive relief; (d) costs and attorney fees; and (e) employment, reinstatement, or promotion (with or without back pay).

The procedures and remedies under FEPR are exclusive except to the extent that other procedures might be available under the rules of the House or under the rules of the House Committee on Standards of Official Conduct. Thus, there is no involvement of either an executive agency or the courts. Some Members of the House wanted to offer amendments to S. 1745, 102d Cong., the Civil Rights Act of 1991," to provide House employees with a right of judicial review. However, the bill was considered under a closed rule which precluded amendments."

18

19

19

H. Res. 270, 102d Cong., 137 Cong. Rec. H9505 (daily ed. Nov. 7, 1991).

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Statutory Rights

Pursuant to the terms of the Fair Labor Standards Amendments of 1989,20 the rights and protections under the FLSA apply to employees of the House of Representatives and to employees of the Office of the Architect of the Capitol.2 (The Equal Pay Act is codified in chapter 8 of Title 29, U.S. Code, as part of the FLSA of 193823 and thus it would seem that the 1989 legislation extended not only FLSA, but also the Equal Pay Act to House employees.) The rights and protections under the employment provisions of the Americans with Disabilities Act of 1990 (ADA) and under title VII of the Civil Rights Act of 196425 apply to House employees.

20

21

Pub. L. No. 101-157, § 8, 103 Stat. 944 (1989).

The legislative history of the Fair Labor Standards Amendments of 1989 explains that that legislation "extends protections under...[FLSA] to all employees of the U.S. House of Representatives and the Architect of the Capitol not otherwise exempted under the general provisions of the FLSA (e.g. section 13(a) exempts bona fide executives, administratives [sic], or professionals)." H. Rept. No. 101-260, 101st Cong., 1st Sess. 40 (1989). House employees are entitled only to the remedies and enforcement procedures spelled out in the Fair Employment Practices Resolution. Pub. L. No. 101-157, § 8, 103 Stat. 944 (1989). House Rule LI, cl. 2, states: "The Committee on House Administration shall have authority to issue rules and regulations applying the rights and protections of the Fair Labor Standards Act in the House, including, but not limited to, determination of exemption categories, permitting the use of compensatory time as compensation under the maximum work week provisions of the Act, describing the record keeping requirements and providing that such record keeping provisions do not apply with respect to employees exempted pursuant to the Committee's Rules and Regulations."

24 Pub. L. No. 101-336, § 509(b)(2), 104 Stat. 327, 374 (1990). The remedies and procedures made applicable under the terms of FEPR apply exclusively. Id. The rights and protections under the ADA in regard to matters other than employment also apply to the House, and for such matters remedies and procedures to be established by the Architect of the Capitol apply exclusively. Id., § 509(b)(3).

25 Rights under the Civil Rights Act of 1964 were extended to House employees by § 117(a) of the Civil Rights Act of 1991. The remedies and procedures under FEPR apply exclusively.

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RECENT SENATE ACTION EXTENDING COVERAGE UNDER CIVIL RIGHTS LAWS

Americans With Disabilities Act

Certain equal employment rights were accorded to Senate employees pursuant to the ADA. Subsection 509(a) of that law extended to Senate employees the rights and protections provided pursuant to several equal employment opportunity laws and established a procedure for internal enforcement by the Senate Select Committee on Ethics. No judicial review was permitted under § 509(a).

Civil Rights Act of 1991

The paragraphs of subsection 509(a) of the ADA that extended certain statutory rights to Senate employees and established an enforcement procedure were repealed by § 315 of the Civil Rights Act of 1991.27 In lieu of the rights granted by § 509(a) of the ADA, § 302 of the 1991 civil rights measure specified:

All personnel actions affecting employees of the Senate 28
shall be made free from any discrimination based on--

26 Section 509(a)(2) extended to Senate employees the rights and protections provided under the ADA itself, the Civil Rights Act of 1990 (S. 2104, 101st Cong.), the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Rehabilitation Act of 1973.

27 Title III of the Civil Rights Act of 1991, which enacted provisions relating to Senate employees, presidential appointees, and certain employees of persons who hold state or local elective office, may be cited as the Government Employee Rights Act of 1991 (§ 301).

23. The prohibition in § 302 on discrimination applies to personnel actions affecting "employees of the Senate," defined in § 301(c) to include "any employee whose pay is disbursed by the Secretary of the Senate," "any employee of the Architect of the Capitol who is assigned to the Senate Restaurants or to the Superintendent of the Senate Office Buildings," an applicant for such a position that will last at least 90 days, or a former employee.

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(1) race, color, religion, sex,29 or national origin, within the meaning of section 717 of the Civil Rights Act of 1964 (42 U.S.C. § 20003-16);

(2) age, within the meaning of section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 633a); or

(3) handicap or disability, within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. § 791) and sections 102-104 of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12112-14).30

However, with respect to many employees (those on the staff of the Senate leadership, of committees, or of Senators, and those officers or employees of the Senate elected by the Senate or appointed by a Member), § 316 of the 1991 legislation made it clear that it is permissible to consider the employee's party affiliation, domicile, and political compatibility with the employing office in making employment decisions.

The Civil Rights Act of 1991 also established a Senate Office of Fair Employment Practices and provided a four-step internal Senate enforcement procedure consisting of: (a) counseling (§ 305 of the Act); (b) mediation (§ 306); (c) formal complaint and hearing by a hearing board composed of three independent hearing officers, who are not Senators or officers or employees of

29 Before final action on the Civil Rights Act of 1991, the Senate adopted a resolution condemning sexual harassment. The resolution stated that "it is the sense of the Senate that the Senate does not tolerate or condone sexual harassment in government, private sector, or congressional workplaces, and that the Senate should consider appropriate changes to the laws of the United States and the rules of the Senate to prevent sexual harassment." S.Res. 209, 102d Cong., 137 Cong. Rec. S15290-91 (daily ed. Oct. 28, 1991).

30

Section 509(a) of the ADA had extended rights and protections under certain laws to employment by the Senate. Section 302 of the Civil Rights Act of 1991 took a somewhat different approach, prohibiting in Senate personnel actions discrimination on various grounds (race, color, religion, sex, national origin, age, handicap, or disability) within the meaning of specific sections of the same laws whose rights and protections had been granted to Senate employees under the ADA. Unaffected by § 315 of the 1991 Civil Rights Act was the paragraph of § 509(a) of the ADA that extended to the Senate the rights and protections under that Act in regard to matters other than employment, and - that directed the Architect of the Capitol to establish the exclusive remedies and procedures to be used with respect to such rights and remedies. Senator McCain recently criticized the Senate for not fully complying with the public access provisions of the ADA, and requested the Senate Committee on Rules and Administration to promulgate new guidelines to ensure Senate compliance with the law. 138 Cong. Rec. S2620-21 (daily ed. Mar. 3, 1992).