WASHINGTON -- House Republican leaders want to exempt members of Congress from laws against discrimination that apply to private employers, despite the Republicans' Contract With America pledge that ''all laws that apply to the rest of the country also apply equally to the Congress" and a decade-old law that placed Congress under antidiscrimination statutes.
Last week, in response to a discrimination lawsuit filed against a Democratic House member, Speaker J. Dennis Hastert, majority leader Tom DeLay, and majority whip Roy Blunt submitted a ''friend of the court" brief on behalf of the House, saying members of Congress should be shielded from discrimination suits.
They said the Constitution protects representatives' ability to study and craft legislation with the staff members they choose, regardless of laws that prohibit employment decisions based on factors such as age, race, gender, and disabilities.
But Democratic House leaders refused to sign off on the House brief, saying that if the court accepts that reasoning, the 10-year-old Congressional Accountability Act would be rendered meaningless. That law, passed shortly after the Republican takeover of Congress in 1995 and designed on the first plank of the Contract with America, specifically stated that Congress should be covered by the same statutes against discrimination that apply to private-sector employers.
''This is a total flip-flop, a repudiation of the contract," said Representative Barney Frank, Democrat of Newton, who held a news conference yesterday to call attention to the Republicans' move. ''It's really wrong for Congress to pass laws that cover the private sector that don't cover ourselves."
Last year Beverly Fields, a former chief of staff for Representative Eddie Bernice Johnson, sued the Texas Democrat in federal court. Fields said she was demoted and later let go for protesting the firing of another aide, who said she was discriminated against because of her age and race.
The first aide who was fired, Elisabeth Howie, a scheduler for Johnson, was 47 at the time of her firing and described herself in court documents as black and Latina. She says she was fired in favor of a young woman of Asian descent, and has alleged age and race discrimination. Fields is also black, as is Johnson, and although race discrimination cases involving people of the same race are rare, courts have in the past allowed them to proceed.
Johnson's lawyers have said she should be shielded from the suit because her employment decisions are protected as a member of Congress. The Constitution protects members of Congress from having their speech or debate ''questioned in any other place," and her lawyers say that should allow House and Senate members to hire and fire aides with immunity from laws that forbid discrimination in the workplace.
It is the same argument contained in the House brief. But the brief marks the first time that House leadership has put itself on record in favor of the position that seems to be at odds with the bill it helped pass in 1995.
The brief was filed Jan. 6 by the House's Bipartisan Legal Advisory Group. The three Republicans in the group -- Hastert, DeLay, and Blunt -- endorsed the brief, while the two Democratic members -- minority leader Nancy Pelosi and minority whip Steny Hoyer -- did not.
A spokesman for Hastert, John Feehery, said Republican House leaders, by filing the brief, were simply trying to maintain the principle of having their speech or debate protected.
He said they were surprised that minority leader Nancy Pelosi balked at the attempt to help a fellow Democrat.
''We were trying to support [Pelosi's] own member," Feehery said. ''The Constitution provides that members of Congress can hire who they want to give them legislative advice."
Frank said the decision by Democratic leaders to fight the move is related to the precedent it would set, not the particulars of the case against Johnson. He said he is certain that Johnson will successfully defend herself against the lawsuit, and warned that Republicans are seeking to eliminate an important protection under the guise of bipartisanship.
''The point is not whether or not they were innocent or guilty," Frank said. ''The point is that any of us charged with this, like any other employer in America, should have to defend ourselves in the same way any other employer does."
Democratic leaders will seek a vote in the House early this year to clarify whether laws against discrimination should apply to members of Congress, Frank said. In recent months, Democrats and some Republicans have accused House leaders of abandoning principles of the Contract With America, particularly with regard to term limits, ethics rules for members of Congress, and the need for a balanced budget.
The brief urges the court to ''now make explicit what was heretofore only implicit" in the Constitution: that a member of Congress has immunity if the employee who is bringing suit has ''legislative duties," and had his or her job changed because of job performance.
If accepted, the Republican argument would leave laws against discrimination applying to workers nationwide -- even other Capitol employees, such as cafeteria workers and police officers -- but not the staffs of members of Congress. Representative Christopher Shays, a Connecticut Republican who helped draft the Congressional Accountability Act a decade ago, said the law was written specifically to eliminate the kinds of exemptions House Republican leaders are now looking to create.
''The Congressional Accountability Act requires Congress to live by the laws it imposes on the rest of the nation," Shays said in a prepared statement. ''While each case should be decided on the merits, the intent of [the law] was not to allow 'speech and debate' immunity to shield members from liability in suits filed by staff under the act."
The defense that Johnson is employing has been used successfully by two senators in the past decade, who have convinced judges that the Constitution gives them the right to make employment decisions as they see fit. But in a third case, brought against former senator Ben Nighthorse Campbell of Colorado, the appeals court has allowed the case to proceed, leaving the issue unsettled within the judiciary. The case is pending.
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