Amid increased legislative and public attention to issues relating to harassment, the Congressional Accountability Act of 1995 Reform Act (CAA Reform Act) passed both chambers of Congress by unanimous consent and was signed into law on December 21, 2018. As the one-year-mark of the Act's passage approaches—and with an annual report required of the Office of Congressional Workplace Rights soon due in January 2020—this Legal Sidebar provides background on the Congressional Accountability Act of 1995 (CAA), and an overview of several key changes resulting from the CAA Reform Act.
Scope of the Congressional Accountability Act
The CAA, codified at 2 U.S.C. 1301 et seq., generally makes certain labor and antidiscrimination protections applicable to the legislative branch, including Title VII of the Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), and the Fair Labor Standards Act of 1938 (FLSA), among others. The CAA also has an anti-retaliation provision that prohibits reprisal or intimidation of an employee for reporting unlawful conduct under the CAA. With respect to these protections, the CAA identifies "employees" covered under the Act. The CAA also enumerates legislative branch employers, or "employing offices," subject to the CAA's requirements.
In addition to employees already covered under the CAA (such as House and Senate employees), the CAA Reform Act expanded the definition to include applicants for employment and former employees. Individuals who carry out official duties of an employing office but are unpaid—such as interns, fellows, or individuals detailed to an employing office—are now also protected under the CAA from discrimination based on race, color, religion, sex, national origin, age, or disability.
The Administrative Resolution Process
The CAA Reform Act made significant changes to the process by which covered employees can administratively resolve their CAA claims, including creating a new position of "confidential advisor" to assist covered employees, and making mediation a voluntary—rather than compulsory—part of the process. The Office of Congressional Workplace Rights (OCWR), an "independent office within the legislative branch," administers the administrative resolution process. The office was previously known as the Office of Compliance.
Under the CAA Reform Act, confidential advisors within OCWR may inform, consult, advise, and assist covered employees, "on a privileged and confidential basis," on matters such as: their rights under the CAA; potential claims an employee might have under the CAA; the drafting of a claim, and procedural options available to the employee after a claim is filed. Confidential advisors may not, however, act as a legal representative for covered employees in a proceeding under the CAA, before a congressional committee, or in federal court. (House Resolution 724, passed by the House in February 2018, provides for, among other things, legal representation for House employees in certain proceedings under the CAA.)
Other staff of OCWR includes a Chair, a Board of Directors, an Executive Director, Deputy Executive Directors, a General Counsel, and attorneys. OCWR also has hearing officers, whom the Executive Director may appoint from a master list of attorneys and retired judges, or hire as OCWR employees. OCWR and the Board are subject to oversight by the Senate Committee on Rules and Administration and the Committee on Homeland Security and Governmental Affairs, and the Committee on House Administration in the House of Representatives.
Steps in the OCWR Administrative Process
Though the CAA previously provided for an administrative resolution process for covered employees, the CAA Reform Act substantively modified or added new components to the process. The following is a brief overview of the OCWR administrative resolution process leading up to a hearing officer's decision on a CAA claim, under the CAA Reform Act.
In addition to the above-mentioned steps, the OCWR process has other components, including mediation, which the CAA Reform Act changed from a mandatory phase to a voluntary option for claimants and employing offices. The CAA, as before, continues to provide claimants an opportunity to appeal decisions rendered by OCWR's hearing officers or Board, as well as the ability to file a civil action in federal court, subject to certain requirements. For covered employees who work outside the Washington, D.C. area, the CAA Reform Act provides that such employees shall also have "equitable" access to OCWR resources and services. While other versions of related legislation had contemplated an investigation to be completed by OCWR's General Counsel, the CAA Reform Act does not include such a process.
Harassment Claims against Members and Mandatory Reimbursement
Another change to the CAA relates to the payment of settlements and awards that resolve claims alleging harassment based on race, color, religion, sex, national origin, age, disability, or veteran status—as well as retaliation for reporting these types of harassment—committed by a Member of Congress.
As a general matter, awards and settlements that resolve a CAA claim are paid from an account in the U.S. Treasury that receives appropriations for that purpose. Originally under the CAA, the payment of awards and settlements resolving harassment claims against Members were also paid out of this account—a subject that drew substantial public scrutiny. Under the CAA Reform Act, Members of Congress must now reimburse the Treasury account for the amount of an award or settlement that resolves a claim alleging that he or she personally committed harassment based on race, color, religion, sex, national origin, age, disability, or veteran status—or retaliation for reporting the aforementioned harassment—while a Member of Congress at the time of the act(s).
If a Member fails to reimburse the Treasury account within 90 days of the date a payment is made from the account for this category of claims, the CAA Reform Act authorizes the payroll administrator to withhold from a Member's compensation amounts as necessary for reimbursement. The CAA now also provides for additional sources of reimbursement, if a Member fails to reimburse the account for the entire reimbursable portion within certain time frames, including transfers from a Member's Thrift Savings Fund plan, wage garnishment, or social security withholding.
Requisite Findings for Reimbursement
With respect to an award resulting from an OCWR decision or a court, the reimbursement requirement is triggered only by a "separate finding" by the hearing officer or court that the violation(s) described above occurred, and was committed by an individual who, at the time of the act(s), was a Member of Congress. Though the reimbursement requirement generally applies to both Members of the House and the Senate, the CAA Reform Act provides for an additional process that must be satisfied before a Senator is required to reimburse the Treasury account for a settlement resolving such claims. In the case of a Senator, the Senate Select Committee on Ethics, pursuant to 2 U.S.C. § 1416(d)(3), upon reviewing the settlement agreement, must determine that the covered claim being resolved in settlement involved an "actual" violation committed personally by a Senator. Only upon making such a determination will the Committee notify OCWR's Executive Director to request reimbursement of the settlement amount by the Senator, and include the settlement in the reporting required under Section 1381(l) of the CAA.
Right to Intervene
In light of this new reimbursement requirement, a Member now has a right under Section 1415(d)(8) of the amended CAA to intervene in any mediation, hearing, or civil action concerning whether an award or settlement should be made on such claims, and the amount of any such award of settlement.
OCWR Reports on Payments and Resolutions
The CAA Reform Act requires that OCWR submit to Congress—and publish on OCWR's public website—an annual report concerning payments made from the Treasury account used to resolve claims alleging a violation of certain categories of CAA claims, including violations of Title VII, a federal statute that generally prohibits discrimination in the workplace. As a general matter, the report must include the amount of payments for these covered claims, "information on the employing office involved," and identify the CAA provisions that were the subject of the claims. For 2020, and thereafter, OCWR must submit the report by January 31 of that year, with the report reflecting payments made in the previous calendar year. The OCWR report may not disclose the identity or position of any claimant.
Meanwhile, the House Administration Committee and the Senate Committee on Rules and Administration are responsible for determining the format and content of OCWR reports with respect to payments resolving covered claims against the personal office of a Member, a House or Senate Committee, "or any other office headed by a person with the final authority" over certain enumerated personnel decisions relating to House or Senate employees. The House Administration Committee, for example, issued Committee Resolution 116-11 in June 2019, requiring that, in addition to the information already required by the CAA, the report must clearly indicate whether a Member has reimbursed the entirety of the reimbursable portion of that covered payment.
The CAA and Congressional Ethics Committees
The House Committee on Ethics and the Senate Select Committee on Ethics "retain full power" pursuant to the authority given to them by the Senate and the House to discipline Members, officers, and employees for violating Senate and House rules on workplace discrimination. Relatedly, the amended CAA requires certain notifications to, and permits access to certain information by, both congressional ethics committees at different points in OCWR's administrative resolution process.
Under Section 1402a(e) of the amended CAA, for example, an OCWR hearing officer must transmit a report to the House Committee on Ethics (in the case of a House Member, Delegate, or Resident Commissioner to Congress) or the Senate Select Committee on Ethics (in the case of a Senator), of the preliminary review of any claim alleging harassment (or retaliation for reporting harassment) committed personally by a Member. In addition, Section 1416(d)(1) of the amended CAA requires that OCWR refer to the respective ethics committee all settlement agreements and final decisions from a hearing officer, the Board, or a federal court that resolve claims of harassment, or retaliation for reporting harassment, committed by a Member or senior staff of the House of Representatives or Senate. Upon such referral, OCWR must provide the respective ethics committee access to the records of any preliminary reviews, hearings, decisions, and information relating to an award or settlement responsive to such claims.
Climate Surveys and Training
By December 21, 2019, and every two years thereafter, the CAA Reform Act requires that OCWR conduct a survey of employing offices on "workplace environment," that includes questions relating to attitudes regarding sexual harassment. In addition, OCWR must "carry out a program of education" for Members of Congress on the requirements of the CAA and a program that informs individuals of their rights under the CAA, including new employees. All other covered employing offices must develop and implement a training program to educate covered employees on rights and protections under the CAA.
Since the passage of the CAA Reform Act, legislative activity continues on issues relating to workplace harassment, including proposals to further amend the CAA and other statutes. Several recent bills, for example, have proposed prohibiting or limiting the use of nondisclosure or non-disparagement clauses in certain agreements or contracts. Other bills have proposed changes to legal standards governing harassment claims, including the scope of employer liability for harassment committed by supervisors in response to Supreme Court decisions on that issue. Should Congress pass amendments or standalone antidiscrimination measures that are signed into law, Congress may consider whether and to what extent the CAA should likewise be amended to make such requirements applicable to the legislative branch.
Meanwhile, with respect to civil actions seeking relief under the CAA, at least some federal courts have considered whether CAA claims may go forward at all given that the evidence in such cases could implicate privileged information shielded by the Constitution's Speech or Debate Clause. In Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, for example, an employing office argued that the plaintiff's CAA claims should be dismissed, on the basis that she would be not be able to prove her race discrimination and retaliation claims without inquiring into legislative acts or communications protected by the Clause. Though a panel of the U.S. Court of Appeals for the D.C. Circuit allowed the claims to proceed to discovery, the majority acknowledged that the plaintiff would be limited in what evidence she could present by the "strictures of the Speech or Debate Clause," which would "bar her from inquiring into legislative motives or question conduct part of or integral to the legislative process." Notably, appellate court judge—now Supreme Court Justice—Brett Kavanaugh dissented and would have granted the motion to dismiss the CAA claims outright on Speech or Debate Clause grounds. Judge Kavanaugh instead emphasized the administrative resolution process available under the CAA, which did not raise Speech or Debate Clause concerns because that process takes place within Congress. Such case law developments may be relevant for Congress to consider, should future legislation propose amendments to the CAA concerning how covered employees may seek relief under the Act.