Legal Insider: It’s Time to Reform the Congressional Accountability Act

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry

The Congressional Accountability Act (CAA) is a law that governs the complaint procedure against Members of Congress and congressional employers in cases involving sexual harassment, discrimination, retaliation and other related labor and employment matters.

The CAA has played a part in protecting Members of Congress and other congressional employers from having to pay or disclose settlements involving discrimination or sexual harassment. The CAA is flawed and changes to the law have been proposed. The CAA covers 13 employment-related laws, but the major problems in the law relate to the handling of sexual harassment and discrimination cases.

The problems with the CAA are many. First, the CAA itself was passed immediately after the Republicans took over Congress in 1995. It was essentially an attempt to place Congress under similar rules as other federal employers but with built-in protections for Members of Congress in order to protect them. The CAA was not debated extensively and many loopholes were left when enacted. Second, the CAA left out the ability of congressional employees to challenge improper employment terminations or adverse actions — rights given to most other federal employees through the Merit Systems Protection Board (MSPB).

Main Issues With the Current CAA

1. Claims take too long.

The CAA takes too long to address claims, often stifling congressional staffers from filing complaints. Under the CAA, one cannot start the process of initiating a complaint of sexual harassment or discrimination for at least 30 days while waiting in a holding period known as the counseling process. A regular federal employee can initiate a complaint immediately, and regular federal agencies may take immediate remedial action against illegal practices. This is not the case for Congress.

Once a congressional staffer waits 30 days in the holding period, he or she must proceed to mandatory mediation with the congressional employer. This is not required for regular federal employees. This process can take at least 30 days or more. If mediation succeeds, it is confidential. If mediation fails, which it often does, then the next step is for the congressional staffer to wait another 30 days to file an administrative complaint or go to federal district court. Then after filing a complaint, the process in the courts can take years, or the congressional staffer can agree to expedite his or her case through the in-house confidential process, which only becomes known if the case decision is appealed.

Congress should change the CAA to enable congressional employees and staffers to have the same rights as regular federal employees. Doing so might put an end to serious cases of sexual harassment, retaliation or discrimination rather than allow it to linger while the process unfolds.

2. Members of Congress have extensive legal representation that they do not pay for.

Furthermore, Congress fully funds its legal defense counsel. For instance, there have been cases where as many as three congressional attorneys have been assigned to one case. As a result, there is often no way that a congressional staffer can usually afford to fund adequate legal representation in which to prevail on his or her regular salary.

One of the most important fixes for the CAA would be for Congress to be held accountable for funds used to pay for inside and outside counsel to defend against these cases. An even better fix would be for Members of Congress and other congressional employers to be held accountable for their legal fees in defense from their own funds or budgets. If congressional employers had to pay for their own legal fees, they may start to resolve and address sexual harassment complaints earlier and remediate problems.

3. Members of Congress have a private fund to pay settlements and judgments.

The CAA pays not only for congressional attorneys’ fees but also for settlements or judgments. In other words, a Member of Congress or other congressional employer can engage in egregious behavior and not have to pay for the consequences of their actions. Currently, Congress sets aside a private account to pay for these costs from a special Treasury Department fund created by the CAA. Members of Congress and congressional employers should have to pay these costs through their own funds. This, more than anything, might deter their egregious behavior.

Proposed Changes to the CAA 

New changes to the CAA have been proposed. One Congressman has proposed making congressional employers responsible for claims. Another Congressman has proposed exposing the settlements made under the CAA and requiring Members of Congress to pay back the Treasury. The bottom line is that Congress needs to do more than simply require sexual harassment training. It needs to make the CAA and the Office of Compliance function more like the Equal Employment Opportunity Commission and provide better and more efficient access to putting an end to unlawful sexual harassment and discrimination.

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