The U.S. Supreme Court has agreed to consider a D.C. Circuit decision holding that the speech and debate clause of the U.S. Constitution did not bar federal courts from hearing a Senate staffer’s employment law complaint against a former U.S. senator. See Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006), cert. granted, Office of Sen. Mark Dayton v. Hanson, No. 06-618 (January 19, 2007). The court also asked the parties to prepare oral and written arguments for two jurisdictional issues: (1) whether the office of Sen. Mark Dayton was entitled to appeal the judgment of the Court of Appeals for the District of Columbia Circuit directly to the Supreme Court and (2) whether the instant case had been rendered moot by the expiration of the term of office of Sen. Dayton.

Ironically, when federal lawmakers first passed legislation prohibiting employers from engaging in workplace discrimination through bills such as the Civil Rights Act and Rehabilitation Act, they did not make themselves accountable as employers. However, with passage of the Congressional Accountability Act of 1995 (CAA), the federal legislative branch became subject to many of the same employment statutes that apply to the public and private sector. However, the CAA preserved broad protections under what is known as the “speech and debate clause.” The “speech and debate clause” is intended to immunize federal legislators from liability in the course of conducting congressional business. Also, the CAA provides the Supreme Court with jurisdiction over matters involving the constitutionality of any provision of the CAA.

Hanson was an employee of Sen. Mark Dayton (D-Minn.). In May 2003, Hanson filed an employment complaint alleging a denial of overtime pay and termination motivated by disability discrimination because Hanson notified Sen. Dayton that he needed surgery to repair a heart defect. The senator’s office answered that Hanson was removed for mishandling the office health care help line. On January 3, 2007, Sen. Dayton’s first and final term expired.

The parties in Hanson dispute whether the work which Hanson engaged in constituted activity covered under the “speech and debate clause,” and thus would shield Sen. Dayton from such a discrimination employment lawsuit. The parties also differ on whether cases filed under the CAA which involve the “speech and debate clause” should be heard directly by the Supreme Court.

In Fields, the D.C. Circuit judges, without either party’s request, chose to sit en banc and hear Hanson’s case in conjunction with that of Fields, a former chief of staff to Rep. Eddie Bernice Johnson (D-Texas) claiming termination based upon age and race discrimination. The D.C. Circuit overturned a lower court’s decision and held that the speech and debate clause did not bar Hanson’s lawsuit. However, the judges disagreed as to how the speech and debate clause can be used as a defense by employers and which employers are protected by the clause.

If the Supreme Court upholds the decision on appeal, then some employment discrimination rights will be preserved for federal legislative staffers. The case has been set for argument on April 24, 2007.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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