Common Cause 2030 M STREET, NW WASHINGTON, D.C. 20036-3380 PHONE: (202) 833-1200 FAX: (202) 659-3716 Mr. Chairman, Members of the Committee: Over the last 30 years, Congress has enacted a series of landmark civil rights bills prohibiting employers from engaging in discrimination on the basis of race, color, religion, sex, national origin or disability. Congress also has enacted laws guaranteeing the right to a safe and healthy workplace and establishing a number of other basic labor standards. These rights are a matter of fundamental national policy. Employers who engage in discrimination or who fail to meet other basic labor standards violate the law and are subject to a full range of legal sanctions. All too often, however, those same rights and remedies are not available to employees if their employer is a Member of Congress or the legislative branch of government. Common Cause believes it is fundamentally wrong for Congress to exempt itself from these laws. There is no rationale for Congress to refuse to live up to the same standards it requires other employers to meet. We strongly support efforts to ensure that congressional employees enjoy the same rights and remedies currently available to other employees and believe that S. 2071, the Congressional Accountability Act, introduced by Senators Joseph -2 Lieberman (D-CT) and Charles Grassley (R-IA), provides an appropriate framework for achieving congressional coverage and affording congressional employees substantially the same rights enjoyed by employees in the executive branch. In recent years, Congress has taken some limited steps to bring its employees under the coverage of the nation's employment discrimination laws. But coverage is inconsistent and uneven, and the enforcement procedures established for dealing with employee grievances lack essential elements of the process established for executive branch and other employees. The result is a process in Congress which has failed to live up to its billing, offering illusory rights without effective remedies. Some Members of Congress have cited constitutional arguments, and in particular, the separation of powers doctrine, as a basis for arguing that Congress should be exempt from the laws that it requires other employers to meet. We do not believe that the Constitution prevents Congress from living under the laws it passes for others or from relying on executive branch enforcement of these laws. If, however, Congress is unwilling to subject itself to executive branch enforcement, we believe Congress has an obligation to establish a parallel enforcement system for congressional employees which provides them with the same procedural and substantive protections, and the same ability to enforce their rights, as exists in the executive branch process. To be credible and effective, such a process must be established as a matter of statute and must provide for a truly independent enforcement mechanism outside of the control of Members of Congress. Further, it must provide -3 employees with the full range of remedies, including compensation and de novo court review. The argument also has been made that because of the unique nature of the institution and congressional business, Members of Congress must have complete discretion in the hiring, firing and work conditions of employees. Few would argue with the proposition that Congress, as the only national body of elected officials, is unique. There is, for instance, some validity to the contentions that Members' staff need to be politically compatible and, in some cases, to be from the Member's state or district. But beyond these narrow exceptions, Members of Congress should be subject to the full force of employment discrimination laws, including enforcement mechanisms modeled on those existing for executive branch employees. Rights without recourse to independent and impartial enforcement and remedies for violations are not rights at all. Despite the progress, the current systems in both houses fail in important ways to provide congressional employees with the same level of protection as executive branch employees. Current Senate Procedures On October 28, 1991, the Senate passed, by the unanimous vote of 92 Senators, S. Res. 209, which condemned sexual harassment and stated: It is the sense of the Senate that the Senate does not tolerate or condone -4 the laws of the United States and the rules of the Senate to prevent sexual harassment. The Senate acted at the same time to include provisions in the Civil Rights Act of 1991 to bring Senate employees under protections of that Act, the Rehabilitation Act and the Age Discrimination in Employment Act. The Senate excluded "party affiliation, domicile or political compatibility" as grounds for discrimination complaints. In the Civil Rights Act of 1991, the Senate provided for the establishment of a new Senate Office of Fair Employment Practices (OFEP) headed by a director appointed by the President pro tempore of the Senate on the recommendation of the Senate Majority Leader in consultation with the Senate Minority Leader. The Office oversees the employment discrimination complaint process, while independent hearing officers, who are not Senate employees or officers, hear and decide on complaints. The process allows for either side to appeal the decision to the U.S. Court of Appeals for the Federal District. The Senate OFEP, with independent hearing officers and court review, provides a far better process than that in the House. It is apparent that the procedures in the House have serious shortcomings. According to a 1993 General Accounting Office report, there had been only seven formal complaints filed by House employees since the House office opened in November 1988. Since there had been more than 1,200 "inquiries" made to the Office, almost one-third with specific employment |