Discrimination
Below is a condensed version of this topic. For complete guidance please refer to the House Ethics Manual, Chapter 7 on staff rights and duties.
House Rules
In addition to federal law, House rules have long prohibited discriminatory conduct in employment. Part of the Code of Official Conduct (House Rule XXIII, clause 9) provides:
A Member, Delegate, Resident Commissioner, officer, or employee of the House may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), disability, age or national origin of such individual, but may take into consideration the domicile or political affiliation of such individual.
This provision has been part of the Code, in substantially this form, since 1975.7
Standards Committee Action. The Committee on Ethics is charged with investigating alleged violations of the Code of Official Conduct (House Rule X, clause 1(q)). In the 101st Congress, for example, the Committee undertook a preliminary inquiry into charges that a Member had sexually harassed two female employees on his personal staff. In that case, the Committee affirmed that sexual harassment is a form of sex discrimination, that the Member charged had indeed harassed his employees, and that this behavior violated the Code of Official Conduct. The Committee report stressed that the applicable provision of the Code (House Rule XXIII, clause 9) tracks the language of Title VII of the Civil Rights Law of 1964 and should be interpreted in light of judicial and administrative decisions (e.g., those of the Equal Employment Opportunity Commission) construing that law.8
While the Committee may conduct investigations and disciplinary hearings and make recommendations to the full House that it formally sanction a Member, the Committee does not have the authority to order remedies such as monetary relief for an aggrieved employee. Employees seeking such remedies have recourse to the Office of Compliance.
Example 1. Member A, a Californian, only hires other Californians. A is not violating House rules.
Example 2. Member B, a Republican, only hires other Republicans. B is not violating House rules.
Example 3. Member C refuses to hire women except for clerical positions. C is in violation of House Rule XXIII.
Example 4. District manager D dismisses Employee E after E turns 55, on the ground that the office needs to maintain a youthful and energetic image. D has violated House Rule XXIII.
Congressional Accountability Act of 1995
The Congressional Accountability Act of 1995 extended the rights and protections of the following federal employment laws, including those laws that prohibit various forms of discrimination, to “covered” Congressional employees and employing offices:
- Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, which prohibits discrimination in employment because of race, color, religion, sex, or national origin;
- The Age Discrimination in Employment Act of 1967, which prohibits employment discrimination against individuals 40 years of age and over;
- Title I of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, which prohibit employment discrimination against qualified individuals with disabilities;
- The Fair Labor Standards Act of 1938, which governs overtime pay, minimum wage, and child labor protection, and prohibits pay discrimination on the basis of sex;
- The Family and Medical Leave Act of 1993, which entitles eligible employees to take leave for certain family and medical reasons;
- The Employee Polygraph Protection Act of 1988, which restricts the use of lie detector tests by employers;
- The Worker Adjustment and Retraining Notification Act, which assures employees of notice before shut-downs and mass lay-offs; and
- Section 2 of the Uniformed Services Employment and Reemployment Rights Act of 1994, which protects job rights of individuals who serve in the military and other uniformed services.
The application of three other laws had a delayed effective date:
- The Federal Service Labor-Management Relations Act, which establishes the rights of individuals to form, join, or assist a labor organization, or to refrain from such activity, and to collectively bargain over conditions of employment through their representatives;
- The Occupational Safety and Health Act of 1970, which protects the safety and health of employees from physical, chemical, and other hazards in places of employment; and
- Titles II and III of the Americans with Disabilities Act of 1990, which prohibits discrimination against qualified individuals with disabilities in the areas of public services and accommodations.
The Congressional Accountability Act established the Office of Compliance, an independent office within the legislative branch, with a five-member Board of Directors, an Executive Director, of Deputy Executive Director for the Senate, a Deputy Executive Director for the House, and a General Counsel. That office administers formal and informal procedures to resolve disputes and provides monetary awards and other appropriate remedies for congressional employees if a violation is found. The Office of Compliance has published a guide to the Congressional Accountability Act, which is available on its website. It also provides educational services and information to congressional employees and their employing offices. Employees with questions about their rights under these statutes should contact the Office of Compliance. The Committee on House Administration has published a Model Employee Handbook, available on that Committee’s website, that provides office policies that comply with applicable House rules and federal employment laws and regulations.9 In addition, the House Office of Employment Counsel is available to provide advice and guidance to House Members and other employing authorities on employment matters and on the establishment of office policies consistent with these House rules, laws, and regulations.
Certain federal employment protections applied to staff even before the enactment of the Congressional Accountability Act. House employees have long been entitled to the minimum wage and overtime protection (except for exempt employees10), the requirement of equal pay for equal work, protection against oppressive child labor conditions,11 and protection against retaliation for exercising any of these rights.12 The Office of Compliance now administers these provisions.
Pursuant to regulations issued by the Office of Compliance, the minimum wage and overtime provisions of the FLSA do not apply to staff “employed in a bona fide executive, administrative, or professional capacity.”13 In light of this standard, the Committee on House Administration has incorporated in its Model Employee Handbook provisions establishing written leave policies, job descriptions for each employee stating whether or not the position is exempt from the pay provisions and time-keeping procedures. The equal pay provisions of the FLSA and Office of Compliance regulations prohibit paying lower wages based on gender:
for equal work on jobs[,] the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .14
See H. Res. 5, 94th Cong., 1st Sess. (121 Cong. Rec. 20-32 (Jan. 14, 1975)). The rule was amended by H. Res. 5, 100th Cong., 1st Sess., to preclude discrimination on the basis of age (133 Cong. Rec. H6-16 (daily ed. Jan. 6, 1987)), and by the Ethics Reform Act of 1989, to preclude discrimination on the basis of marital or parental status and handicap and to exclude domicile and political affiliation (see Pub. L. 101-194, § 802(b)(2), 103 Stat. 1716, 1773 (1989)) – matters that are also now addressed by the Congressional Accountability Act of 1995.
8 See House Comm. on Standards of Official Conduct, In the Matter of Representative Jim Bates, H. Rep. 101-293, 101st Cong., 1st Sess. 8-10 (1989). The Committee issued a public letter of reproval to the Member. Id. at 25-26.
9 See Comm. on House Admin., U.S. House of Representatives, Model Employee Handbook (Sept. 1999).
10 See Office of Compliance Manual, section 5, part C, FLSA Regulations, § 541 et seq. (exemption criteria). The text of the manual is available on the Office of Compliance’s website.
11 See 29 U.S.C. § 203(l) for the definition of “oppressive child labor.”
12 See Fair Labor Standards Amendments of 1989, Pub. L. 101-157, § 8, 103 Stat. 938, 944 (1989).
13 See Office of Compliance Manual, supra note 10.
14 29 U.S.C. § 206(d)(1). An employer may not comply with this provision by reducing anyone’s wages. Id.