Harassment Claims for Congressional Employees

By John V. Berry, Esq., www.berrylegal.com

We represent and advise congressional employees in the filing of Congressional Office of Compliance (OOC) complaints against congressional agencies / employers under the Congressional Accountability Act of 1995 (CAA). Given the recent news accounts involving congressional employees and their sexual harassment claims, it is important for congressional employees who have been harassed to obtain legal counsel to advise and/or represent them given the complexity of the congressional process. There are specific guidelines for filing and adjudicating a complaint under the CAA. Our law firm has handled CAA cases since 1999.

Furthermore, in light of recent news it is highly likely that there will be many more claims involving sexual harassment and/or retaliation under the CAA from congressional staffers or other employees who have previously been discouraged from asserting their claims. The OOC has recently published a list of their settlements and awards. Our updated article on the Office of Compliance and process for dealing with sexual harassment (and discrimination) claims follows:

Which Employees are Covered by the CAA?

The CAA was enacted by Congress in 1995 and roughly covers about 30,000 employees of Congress.  These employees range from traditional congressional staffers to U.S. Capitol Police officers. Many employees are also represented by federal sector unions which are provided additional labor protections through their collective bargaining agreements. The following congressional employees are generally covered by the CAA:

U.S. Senate employees (D.C. and state office staff)
U.S. House of Representatives employees (D.C. and state office staff)
U.S. Capitol Police employees
Architect of the Capitol employees
Attending Physician employees
Congressional Budget Office employees
Office of Compliance employees
Office of Congressional Accessibility Services employees

In addition to those congressional employees listed above, the CAA partially covers Library of Congress and Government Accountability Office employees.

What Employee Rights Does the OOC Enforce?

The OOC provides relief for congressional employees seeking relief for covered illegal actions taken by congressional employers which violate the CAA, involving, among other claims: (1) sexual harassment; (2) disability discrimination; (3) various Equal Employment Opportunity violations (race, color, religious, sex or national origin discrimination); (4) the Fair Labor Standards Act (FLSA); (5) family medical leave; (6) occupational safety and health; (7) age discrimination; (8) uniformed services protections (USERRA); (9) Veteran’s Employment Opportunity Act (VEOA); (10) genetic discrimination; and (11) labor law (collective bargaining) violations.

The vast majority of CAA claims have typically included sexual harassment, discrimination and retaliation claims. It is likely that the majority of new claims will involve sexual harassment given that many of the institutional protections for Members of Congress have started to be eliminated. These, for too long, have hindered congressional employees who may have had sexual harassment or discrimination claims but felt that they would suffer from retaliation for bringing them forward.

Issues to Evaluate Prior to Filing a OOC Complaint

The first step prior to filing an OOC complaint is for a congressional employee to consider seeking legal counsel for advice and/or representation in the OOC process. The process can be complicated and differs from the normal federal sector Equal Employment Opportunity (EEO) process.  Additionally, congressional employers are usually well represented in the OOC process, and a congressional employee should consult with their own lawyer before starting the OOC process. This is highly recommended and can make a difference in providing needed details in an OOC request for counseling / complaint and also help to resolve a complaint as early as possible in the process.

Additionally, it is also important to keep an eye on the timing of a complaint.  Generally, the counseling process must be initiated no later than 180 days after the violation.

Usual Stages of OOC Complaint Under the CAA

There are 3 principal stages to an OOC complaint: (1) OOC counseling; (2) OOC mediation; and (3) OOC administrative hearing or civil action in U.S. District Court.

OOC Counseling

The first step of the OOC process involves filing a request for counseling with the OOC, usually within 180 days (or your complaint could be untimely). A link to request this form follows. OOC Counseling Form. Once the request is received, a counselor from the OOC will speak to the congressional employee and their counselor about the issues in the case. OOC counseling is considered confidential and the congressional employer is not notified that the employee has filed the claim unless the employee decides to pursue the claim following the counseling period. During the OOC counseling stage, the assigned OOC counselor will discuss the OOC complaint process, attempt to answer questions and to clarify the claims. The OOC counseling process normally lasts 30 days.

In general, the CAA was designed to keep claims as confidential as possible.  However, given recent news accounts, that is likely to change.

Mediation at the OOC

If a congressional employee goes forward, the next step, following counseling at the OOC, is mediation. Mediation is confidential and conducted before a neutral mediator hired by the OOC to hear both sides of the employment dispute and to assist the parties in possible settlement of their cases. Usually, the congressional employee, through counsel, will present their view of the case and what they are seeking as a remedy and then the employer’s counsel will discuss their view of the case. Often, the sides are separated into caucuses in order for the mediator to help facilitate settlement. We have seen that the caucus process tends to work. It is often the case that the parties can come to a settlement during the mediation phase. Mediation can take more than one session to complete if the parties are making progress.

Administrative Hearing or Civil Action

If mediation does not resolve a case, the next step is to consider taking the case forward to litigation. At this stage, the employee has a choice between going through the OOC hearing process or, alternatively, taking a case to U.S. District Court. We typically advise congressional employees to take their employment disputes through the OOC hearing process. During the OOC hearing process, the OOC will appoint a hearing examiner to preside over the case.  In either case, the congressional employer will have counsel, or usually multiple counsel, so it is important for the employee to have their own attorney.

Both processes involve litigation, but the OOC hearing process tends to be quicker. The OOC hearing process is intended to provide a hearing within 60 days of the filing of a complaint. Obviously, this requires speed in moving through the written discovery and depositions process, but typically the process is much quicker than going into U.S. District Court. The court process can take significantly longer. That being said, each individual case requires an analysis to determine the best approach because filing in court may be the better option depending on the facts of a case.

Appeals of Adverse Decisions

Following an adverse decision at the OOC or in U.S. District Court there are available options for filing an appeal. If an employee is appealing a decision from the OOC administrative hearing process the first appeal would go to the OOC Board of Directors. If an employee is appealing an adverse decision from U.S. District Court the first appeal would go to the U.S. Court of Appeals.

List of Decisions of the OOC

The OOC maintains a list of decisions by the OOC with respect to their rulings.  The list is located here. There are also cases that have skipped the OOC hearing process and moved straight to U.S. District Court.

 

Conclusion

When a congressional employee is considering the filing of a sexual harassment (or discrimination) complaint at the OOC it is important to obtain legal counsel early in the process. Our law firm advises and represents congressional employees before the OOC. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The firm’s Facebook page is located here.

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