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Brad Hanson says that during his two years as a high-level staffer on Capitol Hill, he was regularly praised by his boss, Senator Mark Dayton. In fact, Hanson says that Dayton, a Minnesota Democrat, was so impressed that Hanson was given a hefty pay raise. But in 2002 Hanson was diagnosed with a serious heart defect that required surgery. He claims that after he shared the news with Dayton, he was immediately fired because of his disability � a claim Dayton denies. Now Hanson is in court fighting for the right to sue the senator for employment discrimination. In November the U.S. Court of Appeals for the D.C. Circuit heard Hanson’s case in conjunction with that of another congressional staffer who claims she was unjustly fired. In that case, Beverly Fields � former chief of staff to Representative Eddie Bernice Johnson (D-Texas) � says age and race discrimination led to her 2004 termination. Representatives from the offices of both Dayton and Johnson declined to comment on the allegations. With the passage of the Congressional Accountability Act in 1995, the legislative branch became subject to many of the same employment statutes that apply to the private sector. However, a clause of the U.S. Constitution protects lawmakers’ speech, debate, and other “legislative activities.” The intent of the clause is to immunize senators and representatives from legal liability that might arise as they conduct congressional business. At issue in the Hanson and Fields cases is whether their terminations were constitutionally protected legislative acts, or whether the staffers have the right to challenge their firings under the 1995 accountability act. Earlier this year, federal district court judges in D.C. refused to dismiss the cases, which led to the joint appeal. The circuit court isn’t expected to issue a ruling until later this year. According to Mark Levy, head of the appellate group in the D.C. office of Kilpatrick Stockton, cases challenging lawmakers’ use of the speech and debate clause have been relatively rare until recently. In 2004 the Tenth Circuit in Denver rejected an argument by then-senator Ben Nighthorse Campbell (D-Colorado) that he was constitutionally shielded from an age discrimination suit brought by a 61-year-old aide who was fired after six years of service. In the Campbell case, the Tenth Circuit determined that the suit was not barred under the Constitution and could proceed to trial because the claim by Campbell’s former staffer did not relate to “official Senate legislative business.” But government lawyers representing Senator Dayton and Representative Johnson disagree with that reasoning. In a recent brief submitted to the D.C. Circuit, their attorneys wrote, “Every act within the legitimate legislative sphere” � which they argued includes personnel and administrative actions � “is protected by speech or debate clause immunity.” Since the D.C. Circuit agreed to hear the appeals of Dayton and Johnson, a number of fellow lawmakers have filed friend-of-the-court briefs. Representative Barney Frank, the Massachusetts Democrat who helped establish the accountability act, takes no position on Dayton and Johnson’s appeals in the amicus brief he submitted. But Frank wrote that personnel actions are not considered legislative acts under the act. He suggests that depriving congressional employees of statutory protections against discrimination emasculates the efforts of the law to subject Congress to the same legal burdens applied to the private sector. One of Hanson’s attorneys, Richard Salzman of D.C.’s Heller, Huron, Chertkof, Lerner, Simon & Salzman, agrees with that assessment. “The statute that Congress passed almost unanimously in 1995 really means what it says, which is that all employees of the legislative branch � Capitol Hill staffers, the people who work in the lunchroom, those who tend to the gardens � that they all enjoy the same rights to be free from discrimination on the job,” he says. “The same rights that for decades state, local, federal, and private sector employees have enjoyed.”

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