Jottings By An Employer's Lawyer

Sunday, December 12, 2004

Age Discrimination By the Senator? At Least the Case Goes Forward

When the Congressional Accountability Act of 1995 was passed, applying for the first time eleven employment laws to Congress and its staff, the hope among some (or at least me) was that Congress might be more sensitive to the impact of those laws, particularly to how they could be manipulated. If it has, its been without the benefit of much ligitation. However, what may be the first case actually brought against a member of Congress (or technically his office, see discussion below) is now wending its way through the courts. Rita Bastien's six year career as a Senate aide to Senator Ben Nighthorse Campbell ended when she was terminated in 2000 at age 61. Rather than going quietly into the Colorado night she sued alleging age discrimination act.

Senator Campbell was not willing to take the suit quietly either, urging that the case be dismissed under the so-called "speech and debate" clause, which provides that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." U.S. Constitution, Article I §6 ¶1. The CAA retained the protection of that provision. Given Senator Campbell's view, almost every act of a Congressional staffer would be covered by the "speech and debate" clause and thus excluded from coverage. The district court agreed with the expansive view, dismissing Bastien's case, which would seem to effectively gut the CAA insofar as it is applied to members of Congress.

However, in a decision that must discuss every case ever decided under the "speech and debate" clause, the Circuit Court of Appeals took a more narrow reading of what constitutes legislative activity and allowed the suit to continue. Bastien v. Office of Senator Ben Nighthorse Campbell (10th Cir. 12/10/04). The Court did take pains to say that it was not addressing whether the "speech and debate" clause might at least require some evidence to be excluded, even if it did not bar the suit.

Since there are no citations to any other case under the CAA against a Congressional member, this appears to be a case of first impression. And it does not appear that there have been any administrative decisions either, at least there are none in the list on the website of the Office of Compliance, the agency set up to administer the Act. And Congress didn't exactly put themselves at risk in the legislation, since the cause of action can only be brought against the "Office" of the Senator or Representative, not them personally. And any award is paid out of the budget of the Office of Compliance, not by the member of Congress or even his or her own budget. So maybe it is not too surprising, that to date there has been very little impact on the way members of Congress view employment legislation and the ensuing litigation. Of course, if the Supreme Court agrees with the 10th Circuit and allows Ms. Bastien's suit to continue, others may well follow, and a decade later, Congress may begin to truly "feel the pain" that employers have felt for sometime now.

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