Academic journal article The Journal of Law in Society

#Congresstoo: A Pragmatic Constitutional Approach to Applying the Speech or Debate Clause in Employment Litigation against Congress

Academic journal article The Journal of Law in Society

#Congresstoo: A Pragmatic Constitutional Approach to Applying the Speech or Debate Clause in Employment Litigation against Congress

Article excerpt


The fall of 2017 witnessed a tidal wave of sexual harassment allegations against prominent men, ranging from film mogul Harvey Weinstein and television news anchor Matt Lauer to Academy Award winning actor Kevin Spacey and Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. These events spawned a grassroots movement, prompting countless women to publicly accuse their former employers or supervisors of sexual assault or harassment, and file lawsuits alleging sexual assault, harassment, and discrimination. The movement, popularly known by the hashtag #MeToo, which accompanied many women's allegations of sexual harassment and assault on social media, seemingly ended the storied careers of many influential men and forced venerable institutions to grapple with the consequences of sexual harassment and discrimination.

The United States Congress was no exception. On November 20, 2017, BuzzFeed News reported that Congress settled a claim with a former legislative aide to Representative John Conyers, Jr., who claimed she was terminated for rebuffing the Congressman's sexual advances. (1) Representative Conyers, a Michigan Democrat, was the longest tenured Member of Congress, had served over two decades as Chairman or Ranking Member of the House Judiciary Committee, and was hailed by House Democratic Leader Nancy Pelosi as "an icon" of the civil rights movement. (2) Despite his towering stature in national politics, Conyers resigned from Congress on December 5, 2017 amid bipartisan condemnation. (3) In the subsequent days, Arizona Republican Representative Trent Franks resigned hours after being accused of subjecting female legislative aides to a hostile work environment by asking them to carry his children on behalf of his infertile wife. (4) Shortly thereafter, Texas Republican Representative Blake Farenthold ended his reelection bid and resigned his seat on April 6, 2018 after it was revealed that Congress settled a claim by his former communications director, who claimed she was fired for complaining about his pattern of sexually explicit comments. (5)

These scandals brought national media attention to both a little known statute governing the rights of Congressional employees, and an often overlooked provision of the United States Constitution with the potential to preempt or hinder employment litigation against Congress. The statute in question, the Congressional Accountability Act (CAA), was enacted on January 23, 1995 by a vote of 98 to 1. The statute, which was enacted amid allegations of sexual harassment against Oregon Republican Senator Bob Packwood, who resigned under threat of expulsion in October 1995, took effect one year after its passage on January 23, 1996. (6) The statute applies to "any employee of (A) the House of Representatives; (B) the Senate; (C) the Office of Congressional Accessibility Services; (D) the Capitol Police; (E) the Congressional Budget Office; (F) the Office of the Architect of the Capitol; (G) the Office of the Attending Physician; (H) the Office of Compliance; or (I) the Office of Technology Assessment." (7)

The CAA seeks to provide Congressional employees with the same federal protections as private sector employees. The statute prohibits discrimination against covered employees on the basis of "race, color, religion, sex, or national origin" as defined by the Civil Rights Act of 1964, "age" as defined by the Age Discrimination in Employment Act of 1967 (ADEA), and "disability" as defined by the Americans with Disabilities Act of 1990 (ADA) and applies the Family Medical Leave Act of 1993 (FMLA) to Congressional employees. (8) The statute also includes an anti-retaliation provision. (9) Since quid pro quo sexual harassment constitutes sex discrimination, the staff members who allegedly experienced sexual harassment while working for Representatives Conyers, Franks, and Farenthold could have brought civil actions pursuant to the CAA. (10)

Although the CAA entitles employees who suffer such conduct to file civil actions against Congress, the Speech or Debate Clause of Article I of the United States Constitution presents a significant obstacle to such litigation. …

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