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Protections for Legislative Branch Employees

The U.S. District Court for the District of Columbia recently clarified the mode of analysis for employment discrimination cases involving employees of the legislative branch. Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, D.D.C. Civil Action 09-01750 (June 24, 2011). This case raised complex questions involving the Speech and Debate Clause of the Constitution, which is designed to uphold our government's separation of powers by protecting the legislative branch from intimidation or improper scrutiny by the other branches of government. The clause, as interpreted by the Supreme Court, forbids courts from inquiring into acts and communications that are integral to the legislative process.

In this case, Howard worked for the House's Office of the Chief Administrative Officer (CAO). She brought a claim of discrimination and retaliation against the CAO alleging that she was improperly demoted and later terminated because of her race and for engaging protected activity. The CAO moved to dismiss the case on the grounds that Howard could not win her case without improperly raising factual issues protected by the Speech and Debate Clause. This case provides the court's analysis of the Speech and Debate Clause as it relates to this employment discrimination matter.

First, regarding Howard's transfer from the position of budget director to senior advisor (which Howard termed a demotion), the CAO provided three reasons for the action; 1) Howard lacked the interpersonal skills required of an effective manager; 2) she had useful analytical skills; and 3) she expressed her own budgetary preferences rather than those of the CAO to House actors, including the Committee on Appropriations. The CAO's third reason for the transfer involved Howard's provision of information and recommendations which would be incorporated into budget legislation in the House. The court therefore found that the CAO's third reason for transferring Howard was legitimate, and that it fell under the protection of the Speech and Debate Clause. The court concluded that Howard could not challenge the CAO's proffered reasons for her transfer without questioning committee personnel, their aides or staff about the substance of her communications on budgetary matters, which would violate the Clause.

However, the court noted that attacking the CAO's stated reasons for the transfer was not the only way to show that those reasons were merely a pretext for discrimination. Howard also presented evidence that the reasons the CAO provided for Howard's transfer at the time were different than those it provided in the course of litigation. This, the Court stated, was one means of showing pretext without making an impermissible inquiry into legislative activities in violation of the Speech and Debate Clause.

Turning to Howard's termination, the court noted that the CAO had provided one reason for the action: the CAO alleged that Howard repeatedly refused to analyze and reconcile the Government Contributions Account. The court found that this assignment bore a close enough relationship with the process of deliberating over legislation that it fell within the scope of the protections afforded by the Speech and Debate Clause. The assignment, the court said, was "in aid of" legislative activity, and it made no difference whether the act was performed by a Member of Congress or someone given authority to act on his or her behalf.

Howard argued that the inquiry into whether she did or did not refuse to perform the task as alleged did not require examination of the substance or nature of her assignment, and was therefore outside the protection of the clause. However, the court held that because the performance of the task itself was a legislative act of gathering information for use in deliberations over legislation, it was protected by the Speech and Debate Clause. The court noted that whether they were performed by a Member of Congress or an aide, communications between House officers regarding the performance of legislative acts are protected. The court concluded that Howard could not show that her termination for alleged insubordination was improper without questioning what her supervisor told her to do, how he told her to do it, etc., which are impermissible inquiries under the clause. The court therefore dismissed Howard's termination claim.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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