The first congressional exemption was in the Civil Service Act of 18831 and exempted congressional staff from the employment provisions contained in the Act. This exemption helps to explain the pattern of congressional exemptions enacted in this century. Several major employment laws enacted over the last 60 years have exempted congressional employees even when executive branch employees were expressly included.2 CONGRESSIONAL EXEMPTIONS AND SPECIAL RULES
Yet a movement in the other direction, various laws have been extended to the House and Senate in the last few years including the Fair Labor Standards Act of 1938 (FLSA), the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age in Discrimination in Employment Act, the Rehabilitation Act of 1973, and the Family Medical Leave Act of 1993.
During the 100th Congress, the House adopted H. Res. 558, the Fair Employment Practices Resolution (FEPR). The resolution, as amended, was codified in House Rule LI when the House adopted its rules for the 103d Congress.3 House rules now specify that ``personnel actions affecting employment positions in the House of Representatives shall be made free from discrimination based on race, color, national origin, religion, sex (including marital or parental status), disability, or age,'' and states that ``interpretations [of this rule] shall reflect the principles of current law, as generally applicable to employment.''
The House also established an Office of Fair Employment Practices (OFEP) that has a three-step procedure to be used by an employee who alleges that he or she has been the subject of discrimination in violation of the resolution. These steps are: (1) counseling and mediation; (2) formal complaint, hearing, and review by the Office; and (3) final review of the decision of the Office by an eight-member panel composed of four members of the Committee on House Administration and four officers and employees of the House. The Office or a review panel may order the following remedies: (a) monetary compensation to be paid from the clerk-hire allowance of a Member, or from personnel funds of a committee of the House or other entity; (b) monetary compensation to be paid from the contingent fund of the House; (c) injunctive relief; (d) costs and attorney fees; and (e) employment, reinstatement, or promotion (with or without back pay).
The procedures and remedies under the House OFEP are exclusive except to the extent that other procedures and remedies might be available under other rules of the House or under the rules of the House Committee on Standards of Official Conduct. The ``rights and protections'' of the Fair Labor Standards Act (including the Equal Pay Act), and the employment provisions of the Americans with Disabilities Act of 1990, Civil Rights Act of 1991, and Family and Medical Leave Act of 1993 have now been extended by statute to the House. However, the House OFEP is the enforcement mechanism for these laws in the House of Representatives. Thus, there is no involvement of an executive agency or the courts in the case of House employees.
Certain equal employment rights were accorded to Senate employees by the Americans with Disabilities Act. Subsection 509(a) of this law extends to Senate employees the rights and protections of several Federal EEO laws and establishes a procedure for internal enforcement by the Senate Select Committee on Ethics without provision for judicial review. However, these provisions were repealed by the Civil Rights Act of 1991, which substituted provisions barring all forms of discrimination in Senate employment prohibited by these Federal EEO laws: Title VII of the 1964 Civil Rights Act, Age Discrimination in Employment Act of 1967, Rehabilitation Act of 1973, and Americans with Disabilities Act.
The Civil Rights Act of 1991 also established a Senate Office of Fair Employment Practices and provided a four-step internal Senate enforcement procedure consisting of: (a) counseling, (b) mediation; (c) formal complaint and hearing by a board composed of three independent hearing officers, who are not Senators, officers, or employees of the Senate; and (d) review of the hearing board decision by the Senate Select Committee on Ethics.
Where the hearing board makes a finding of discrimination, it shall order appropriate remedies under the specified statutory provisions and may also order the award of compensatory damages. However, the board may not award punitive damages. After exhaustion of the internal enforcement procedures, an appeal for judicial review of the Ethics Committee decision may be filed in the U.S. Court of Appeals for the Federal Circuit. The 1991 Act also reaffirms commitment to Senate Rule XLII, prohibiting discrimination in employment, and specifies that the Senate Select Committee on Ethics retains authority pursuant to S. Res. 338, 88th Cong., to take disciplinary action against a Member, officer, or employee of the Senate for any violation of that rule.
Rights and protections under the Family and Medical Leave Act of 1993 have also been extended to Senate employees.
Thus, Senate employees have the right to appeal employment discrimination complaints to the U.S. Court of Appeals. While this is not de novo review, which is extended to the private sector and Presidential appointees, it is judicial review.
FOOTNOTES1 ``Congress has routinely exempted itself from good-government legislation. Beginning with the earliest civil service legislation, Congress professionalized and eliminated patronage in the executive branch, but not in the legislative branch. See Civil Service Act, ch. 27, 2, 14, 22 Stat. 403, 404, 407 (1883); Civil Service Reform Act, Pub. L. No. 95-454, 2302, 92 Stat. 1111, 1114 (1978).'' Gardner, The Uses and Abuses of Incumbency: People v. Ohrenstein and the Limits of Inherent Legislative Power, 60 Fordham L. Rev. 217, 218 n.4 (1991).
2 These include the FLSA, the Age Discrimination in Employment Act, and the provisions of the Equal Employment Opportunity Act of 1972 that extended the Civil Rights Act of 1964 to Federal employees.
3 H. Res. 5, 103d Cong. See 139 Cong. Rec. H10 (daily ed. Jan. 5, 1993)(remarks of Rep. Slaughter).