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Brad Hanson was working as a high-level staffer for a Minnesota senator when he was diagnosed with a serious heart defect that required surgery. Until the time of his diagnosis in July 2002, Hanson says his boss, U.S. Sen. Mark Dayton, often praised his work, which included creating and managing a health care help line for constituents. In fact, Hanson says that Dayton was so impressed with his efforts that the Democratic senator gave him a hefty pay raise during his two-year stint on the staff. But upon sharing with Dayton the news of his cardiac condition and his need for time off, Hanson claims 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, a case the U.S. Court of Appeals for the D.C. Circuit is hearing this week in conjunction with that of another congressional staffer who claims she was unjustly fired. In that case, Beverly Fields — former chief of staff to Rep. Eddie Bernice Johnson, D-Texas — claims age and race discrimination led to her termination last year. Representatives from the offices of both Dayton and Johnson declined to comment on the allegations. At issue in both cases is whether, because of constitutional language that broadly protects lawmakers’ speech, debate and other “legislative activities,” members of Congress are shielded from employment discrimination lawsuits brought by staffers. The “speech and debate clause” is intended to immunize federal legislators from liability in the course of conducting congressional business. With the passage of the 1995 Congressional Accountability Act, the legislative branch became subject to many of the same employment statutes that apply to the private sector. However, the law preserved broad protections under the speech and debate clause. In hearing the former staffers’ cases, the appeals court will consider whether that immunity applies to discrimination suits filed by congressional employees. Earlier this year, judges on the U.S. District Court for the District of Columbia refused to dismiss the cases on the grounds of congressional immunity, which led to the joint appeal. In a rare move, the court of appeals decided to hear the cases en banc, a decision made even more unusual because it was not requested by the parties involved, but by the appellate court itself. “It happens once in a blue moon,” Mark Levy, head of Kilpatrick Stockton’s appellate group in Washington, says of the court’s sua sponte action. “It’s not entirely unprecedented, but it’s very rare.” While employment litigation has steadily increased in the private sector, cases challenging lawmakers’ use of the speech and debate clause have been relatively rare until recently, Levy says. In December 2004 the 10th U.S. Circuit Court of Appeals in Denver rejected an argument by then-Sen. Ben Nighthorse Campbell, D-Colo., that the speech and debate clause shields him from an age discrimination suit brought by a 61-year-old senate aide who was fired after six years of service. The D.C. Circuit — waiting to learn if the U.S. Supreme Court would take up the Campbell matter, which it ultimately did not — postponed hearing Hanson v. Dayton and Fields v. Johnson until now. “There is a very good chance that our case will go to the Supreme Court,” says Wayne Scriven, the Fredericksburg, Va., attorney representing Fields. “Our case has a bigger, more direct issue,” he says, comparing it to the Campbell matter. In the Campbell case, the 10th Circuit determined the lawsuit was not barred under the Constitution and could proceed to trial because the claim did not relate to “official Senate legislative business.” But government lawyers representing Sen. Dayton and Rep. Johnson disagree with that reasoning, and in a recent brief submitted to the D.C. Circuit, they wrote, “Every act within the legitimate legislative sphere is protected by speech or debate clause immunity,” which they argued includes personnel and administrative actions. “This case presents an important constitutional question regarding the separation of powers,” says Jean Manning, Senate chief counsel for employment. “We are confident that the court will carefully and thoroughly consider the issue.” A brief submitted by Manning — who will argue on the government’s behalf — cites a 1986 D.C. Circuit decision in which federal lawmakers were deemed immune to an employment lawsuit under the speech and debate clause. Attorneys with Heller, Huron, Chertkof, Lerner, Simon & Salzman, who are representing Hanson, say they will urge the court to overturn the 1986 ruling in Browning v. Clerk, House of Representatives. Richard Salzman, one of Hanson’s attorneys, says the potential for overturning this long-standing ruling likely is the reason the appeals court called for en banc proceedings. “It’s not a legislative action when a member of Congress decides to fire a staffer. That’s the primary reason why Browning doesn’t apply anymore,” Salzman says, adding that the 1986 case was undermined by a subsequent decision in Forrester v. White. In that matter, the Supreme Court ruled a state court judge did not have judicial immunity in a suit brought by a probation officer he fired. While a decision to overturn Browning would be the best-case scenario for the plaintiffs, Salzman says, it’s not necessary in this situation. The fact that the Congressional Accountability Act does not ensure immunity from employee discrimination lawsuits is enough to win, he adds. 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. In a show of support for his congressional colleagues’ appeals, Rep. Henry Hyde, R-Ill., writes, “Nothing that has occurred since Browning was decided undercuts the legitimacy and continuing validity of that decision,” including the Congressional Accountability Act. Although Rep. Barney Frank, D-Mass., takes no position on the appeals of Dayton and Johnson, he writes in an amicus brief that personnel actions are not considered legislative acts under the 1995 accountability act, which he helped establish. Frank 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. Salzman agrees with that assessment, which he says is the crux of the case. “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.” Legal Times reporter Lily Henning contributed to this article.

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