By Kevin Mulshine
Invisible to the public and most Capitol Hill staffers, robust, capable “law firms” exist in the Senate and the House to represent member offices when they get into legal scrapes with employees. In fact, the Senate counsel in 2007 took a case brought by disabled employee of former Senator (now Minnesota Governor) Mark Dayton all the way to the Supreme Court (and lost).
How did these counsel offices come into existence and how are they funded? When the Congressional Accountability Act (CAA) became effective in early 1996, Senators and House members found themselves without their own legal counsel. The House had its General Counsel and the Senate had the Senate Legal Counsel, but each of those offices represented Congress the institution, not individual members. Also, neither of those offices had employment rights litigation experts skilled in defending and litigating equal employment opportunity (EEO) charges under the laws newly applied to Congress by the CAA.
The resources allotted for these offices are substantial. In 2016, the payroll of the Office of Senate Chief Counsel for Employment (SCCE) payroll was about $1.5 million and that of the Office of House Employment Counsel (OHEC) was just under a million dollars.
The legal counsel that these “firms” offer to Senate and House members is free. On the other hand, an employee must hire her/his own counsel to bring a case against a Senator or member in federal court or an administrative hearing. Congressional staffers have no Equal Employment Opportunity Commission to investigate their claims of illegal treatment on the job like private sector employees have. An aggrieved Capitol Hill staffer must hire his/her own counsel. And unlike private employment discrimination law, congressional employees may not join in class actions against Senators and members of Congress. The law does not permit class actions.
If an employee were to walk in the door of the SCCE or OHEC, the office would turn the employee away. The role of these lawyers is to counsel and defend their congressional clients zealously in employee lawsuits, not to advise their clients’ employees.
Senators or Representatives, when they fear a loss in court, may settle CAA cases in confidential settlements. If not settled, cases may go to closed administrative hearings or employees may file their cases in federal district court. A settlement and awards fund pays for settlements and any damages awarded to an employee.
In the case of the Office of Senator Mark Dayton v. Hanson, Brad Hanson, who worked in the Senator’s Minnesota office, alleged disability discrimination in federal district court when in 2003 Dayton summarily fired Hanson after telling the senator that he needed heart surgery. Hanson won a hearing before both the federal district court and the appeals court. Dayton left the Senate in January 2007, but the case continued.
Before the Supreme Court in April 2007, the SCCE argued, among other things, that Hanson was the Senator’s alter ego, his “second self” and essential to the legislative process. On that basis, the SCCE argued, the senator should not have to answer for his alleged discriminatory action because he was immune from suit under the Speech or Debate Clause of the constitution. The Supreme Court refused the SCCE appeal, saying the Senator could not take a direct appeal to that Court. The three years of litigation by the SCCE cost the senator nothing; Hanson had to employ his own counsel. There is no record of how the matter ended after Hanson’s Supreme Court win and whether the employee was reimbursed for his counsel fees.
Senators and representatives have “lawyered up” to protect themselves from charges of harassment, discrimination, and reprisal. This costs taxpayers millions year-in and year-out regardless of case filings by employees and encourages senators and representatives to fight lawsuits, even when they are in the wrong.
Congressional staff and job seekers have no similar legal support. Private sector and federal employees have the EEOC and agency EEO offices. It’s time that covered congressional staff have independent counsel to protect their interests and livelihoods from unfair and illegal employment practices, reprisal and harassment.
Kevin Mulshine, the former Inspector General for the Architect of the Capitol (AOC), served as the Deputy General Counsel for the AOC. Prior to joining the AOC, from 1995 to 1997 he was Senior Advisor and Counsel to the Congressional Office of Compliance. He is a cum laude graduate of the Howard University Law Center.