House Rejects Protection Defense
A recent federal district court decision reveals a dramatic chasm in the application of the Congressional Accountability Act: Whereas the Senate has argued successfully that the Constitution protects its Members from lawsuits, the House has allowed a case to proceed and be heard on its merits.
Late last month, a judge in U.S. District Court for the District of Columbia dismissed a case brought by a former Ways and Means Committee staffer who alleged sex and race discrimination, saying her complaints didn’t constitute discrimination. The case appears to be the first brought by a House committee or personal staffer under the landmark 1995 law.
Another case brought under the CAA several years ago by a former Senate staffer was dismissed on entirely different grounds and before she was ever afforded the opportunity to present its merits. A Colorado district court bought the argument presented by the Senate — that despite the CAA’s provisions, the Constitution doesn’t allow legislative employees to to take their employing office to court.
The House Employment Counsel’s office did not even bring the Senate case to the court’s attention. By refusing to cite relevant case law, the House indicated that it does not plan to hold itself immune from portions of the CAA, as the Senate has done.
House Speaker Dennis Hastert’s (R-Ill.) office declined to comment.
Much of the momentum to pass the CAA in 1995 came in the House after the so-called “GOP Revolution” swept in a group of lawmakers committed to restraining what they deemed was an “imperial Congress.” The statute, the first plank in the “Contract with America,” for the first time applied federal labor laws to the legislative branch and gave Congressional workers the right to take their employers to court after going through a mandatory counseling and mediation process.
The House employee involved in the House suit, Satvitri Singh, underwent that process prior to filing a complaint in U.S. District Court in March 2002. She alleged that she was paid less and eventually fired from the Ways and Means panel because she was an Indian-born American and female. Singh, according to court records, had a tumultuous relationship with her supervisor, who hired her reluctantly and only after strong overtures by Rep. Phil Crane (R-Ill.), the chairman of the Ways and Means subcommittee on trade.
In her complaint, Singh asserts that the committee staff subjected her to hostile and discriminatory treatment, including “mocking her ability to speak English, frequently abusing, berating and degrading her, excluding her from meetings, unfair evaluation of her work, unfair demands, denying travel opportunities, and a variety of other measures designed to diminish her stature and stifle her professional growth.”
When Rep. Bill Thomas (R-Calif.) took over the committee gavel following the retirement of Rep. Bill Archer (R-Texas) last Congress, Singh was among a group of eight staffers — the rest white — that Thomas’ new staff director decided to terminate for “performance problems and political incompatibility,” according to depositions. Five of the eight moved on voluntarily, and the remaining three, including Singh, were fired. According to court records, there was “political tension” surrounding Singh because her sponsor, Crane, had been bypassed in seniority for the chairmanship by Thomas.
“Due to the inherent political nature of Capitol Hill, the CAA specifically allows an employing office to consider an employee’s party affiliation, domicile, or political compatibility in making employment-related decisions,” U.S. District Judge Rosemary Collyer wrote in her decision to dismiss the case.
“The Court finds that Ms. Singh’s allegations fail to rise to the level of a hostile work environment. On this record, it appears without doubt that Ms. Singh had a rocky working relationship with [her immediate supervisor]. Neither the frequency nor the content of the interactions that Ms. Singh describes with [any of her supervisors], however, amounts to severe and pervasive treatment sufficient to alter the conditions of her employment,” Collyer wrote.
Singh’s attorney could not be reached for comment.
Intentionally or not, when Collyer was laying out the underlying facts leading her to grant the House’s motion for summary judgment, she made a dramatic statement about the way the statute applies to staffers in the House vis-a-vis their Senate peers.
“It is uncontested that the CAA applies to Ms. Singh as a ‘covered employee’ in the legislative branch,” she wrote.
It was uncontested because the House didn’t contest it.
Singh was a committee staffer who worked on Capitol grounds. If the House Employment Counsel’s office planned to argue, as the Senate has done, that an employee tied to the legislative process cannot sue a Member or committee because of constitutional protections, presumably they would have done so here.
It could have been an effective argument, especially if the House cited the case of Rita Bastien, whose age discrimination suit against Sen. Ben Nighthorse Campbell (R-Colo.) was dismissed by a Colorado district court on grounds that Campbell was immune from suit.
In that case, the Senate Chief Counsel for Employment essentially argued that the portion of the CAA that allows staffers to take their employers to court is unconstitutional because Article I, Section 6 of the Constitution — which prohibits Members of Congress from being “questioned in any other place” about “Speech or Debate in either House” — applies to employment decisions made by lawmakers. Bastien appealed the decision to the U.S. Court of Appeals for the 10th Circuit, and oral arguments are set for early March.
Bastien was Campbell’s state director. Her duties included handling constituent services and managing his offices in Colorado — she gave him little, if any, policy advice and wrote no legislation.
One of Bastien’s attorneys, Karen Larson, said the court’s finding that Bastien was sufficiently tied to the legislative process to trigger Speech or Debate Clause immunity means that “anyone who is a personal [or committee] staff member would be part of the legislative process.”
“Our argument is that Rita Bastien really wasn’t privy to any of his Senatorial positions, other than his public statements, and therefore he doesn’t have the immunity that he claims he has, and secondly, the Senate enacted a law that allowed themselves to be sued,” she added.
The House Employment Counsel’s office “wisely choose not to use the Speech and Debate clause,” Larson said, because under the argument Campbell used “it seems like any employee could really indirectly be part of the legislative process.”
In addition to Bastien’s case, the Senate Employment Counsel has argued that Speech or Debate protects Sen. Mark Dayton (D-Minn.), who is being sued for disability discrimination by Brad Hansen, a former state-office employee who claims he was fired after he told the Senator of his heart condition. His case is currently in D.C. District Court — the same court that heard Singh’s case.
The reaches of the Speech or Debate Clause have never been completely defined by the Supreme Court. “There’s case law divided all over the circuits on what’s considered immune,” Larson said.
But if conflicting CAA cases make their way through the federal circuits, the issue could be headed to the high court.