Members of Congress are not exempt from the law in a number of situations, as described below.
LAWS THAT APPLY TO CONGRESS
Equal Employment Opportunity
Federal protection against workplace discrimination is embedded in a range of Federal laws that apply to employment in the private sector as well as employment in Federal, State, and local governments. Title VII of the 1964 Civil Rights Act, as amended in 1972, makes it unlawful for employers, employment agencies, and labor organizations to discriminate against their employees (or members) or applicants for employment because of race, color, religion, sex, or national origin. All forms of employment and pre-employment bias are forbidden, including discrimination in hiring, discharge, promotion, layoff and recall, compensation and fringe benefits, classification, training, apprenticeship, referrals, union membership, and all other ``terms, conditions, or privileges of employment.'' The Age Discrimination in Employment Act (ADEA) makes it unlawful for employers, employment agencies, and labor organizations to discriminate against ``individuals who are at least 40 years of age.''
Private employers and labor organizations are covered under Title VII if they have 15 employees or members; they are covered under the ADEA if they have 20 employees or 25 members. State and local governmental employees are covered. The Civil Rights Act of 1991 eliminated the exclusion for personal staffs and ``policymaking'' advisors of State elected officials.25 Such employees of State elected officials may now file a complaint with the EEO Commission (EEOC) which is to ``determine whether a violation has occurred'' and issue an order providing ``appropriate'' relief.
The Equal Employment Opportunity Act of 1972 provides the following coverage for Federal employees: ``All personnel actions affecting employees or applicants for employment. . . in executive agencies as defined in section 105 of title 5. . . and in those units of the legislative and judicial branches of the Federal government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.''26
The Act was subsequently amended to prohibit age discrimination under the ADEA, as well. By virtue of the ``competitive service'' qualification in 717, however, House and Senate staff (and many other legislative and judicial branch employees) were until recently excluded from coverage of Title VII and the ADEA.
Title III of the Civil Rights Act of 1991 (Government Employee Rights) partially addressed some of these coverage issues. The new law extends Title VII, the ADEA, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973 to all Senate employees. For these Senate employees, a procedure is established that includes counseling, mediation, and a hearing before a three-member independent panel which is empowered to order all ``appropriate'' Title VII remedies, including compensatory damages. Any party may then seek review of hearing board decisions by the Select Committee on Ethics or the U.S. Court of Appeal for the Federal Circuit. The rights and protection of Title VII and the ADA were also extended to House employees by 117(a) of the 1991 Act, subject to internal enforcement procedures and remedies provided by the Fair Employment Practices Resolution, the provisions of which are now codified as House Rule LI.
The executive branch has different administrative and judicial enforcement procedures to eliminate discrimination. The EEOC is empowered to enforce Federal sector EEO by ``necessary and appropriate'' rules, regulations, and orders and ``through appropriate remedies, including reinstatement or hiring of employees with or without backpay.'' Each Federal department and agency is annually required to prepare a ``national and regional equal employment opportunity plan'' containing internal grievance procedures, programs for upgrading personnel, and related matters for Commission review and approval. The primary administrative forum for investigation, conciliation, and resolution of Federal employee charges is the agency against whom the charge is brought. Agency action on discrimination charges can be appealed to the EEOC, which is authorized to grant appropriate relief. Private civil action under Title VII is also available following the Commission's determination.
Under the terms of the Rehabilitation Act of 1973, ``each department, agency, and instrumentality . . . in the executive branch'' is also required to submit to the EEOC and the Interagency Committee on Handicapped Employees an affirmative action program plan for the hiring, placement, and advancement of handicapped persons. The plan is subject to approval by the EEOC.27 The Americans with Disabilities Act of 1990 (ADA)28 provides that no covered entity: ``Shall discriminate against a qualified individual with a disability because of the disability of the individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.''29
Specifically exempted from coverage of the ADA, however, are ``the United States, a corporation wholly owned by the government of the United States, or an Indian tribe,''30 and Federal departments and agencies remain subject only to 501 of the Rehabilitation Act.31 However, 509 of the ADA expressly extends coverage to Congress and ``instrumentalities'' of the legislative branch.
Title V of the original Ethics in Government Act amended provisions of the ``revolving door'' law,32 to provide for a one-year ``no contact'' period for upper level government officials. Under the amendments and additions to this provision in the Ethics Reform Act of 1989, Members of Congress are now subject to the same restrictions, including the post-employment restrictions on representations concerning trade and treaty matters, and the restrictions on working for foreign governments after leaving office. The President and Federal judges are not covered by any provisions of this law.
Restrictions on Outside Income
Amendments in 1989 of Title V of the Ethics in Government Act added government-wide restrictions on outside earned income, including a complete ban on honoraria, a cap on other outside earned income, and specific restrictions on outside paid professional activities. Members of Congress, and those officers and employees of the House and Senate who are compensated at a rate of pay equal to or more than 120 percent of the pay of a GS-15, are now subject to a ``cap'' on the amount of outside earned income which they may receive in a calendar year. The overall, outside earned income limit is equal to 15 percent of the official salary of a level II in the Executive Schedule.33 In addition to the 15 percent cap on all outside earned income, all Senators, and those officers and employees compensated at a rate equal to or more than 120 percent of a GS-15, are subject to other specific restrictions on outside employment and professional activity beginning on August 14, 1991. Such persons may not:
- Affiliate with a firm to provide compensated professional services involving a fiduciary relationship;
- Allow any such firm to use one's name;
- Practice a profession which involves a fiduciary relationship for compensation;
- Serve for compensation as an officer or board member of any association or corporation; or
- Receive compensation for teaching without prior approval of the Select Committee on Ethics.34
Conflict of Interest Laws
All the Federal conflict of interest laws apply to Members of Congress. The laws include the bribery and illegal gratuity provisions law, which prohibits receiving compensation for representing people before the government, the ban on practice of law before certain Federal courts, and the portions of the ``revolving door'' law applicable to high level government officials.35 Elected Federal officials, including the President, Vice President, and Members of Congress are generally not covered by the provisions of law which concern acting, in a private capacity, as an agent or attorney for a private party in a governmental matter; by laws requiring disqualification of an official in certain governmental matters; and by laws baring additional private compensation, contribution, or reimbursement for activities within the scope of one's governmental duties.36
The Federal ``bribery'' statute of 18 U.S. Code 201 prohibits Federal public officials from corruptly seeking, receiving, or agreeing to receive ``bribes,'' that is, anything of value in return for being influenced in the performance of an official act. The statute also prohibits the receipt, request, or agreement to personally receive ``illegal gratuities,'' that is, anything of value ``for or because of'' official acts done or to be performed. The provisions of the Federal bribery law apply to all ``public officials'' of the Federal Government, including Members of Congress and legislative branch employees.
Section 203 of 18 U.S. Code prohibits officers and employees of the Federal Government from receiving or agreeing to receive private compensation for ``representational services'' that is rendered to private parties and given more importance than service for Federal agencies, departments, or Federal officials. This law applies to Members of Congress and congressional employees, but does not apply to the President, Vice President, or Federal judges.
Practice of Law Before U.S. Claims Court and U.S. Court of Appeals for Federal Circuit
This statute prohibits the practice of law before the United States Claims Court and the United States Court of Appeals for the Federal Circuit. Section 204 applies only to Members of Congress, and not to any other officers or employees of the government, nor to the President, Vice President, or Federal judges.
Social Security Act
Social Security coverage of executive branch and legislative branch employees parallels the coverage requirements of other Federal civilian employees. ``Employment'' for purposes of Social Security coverage includes service performed as President or Vice President of the United States (210(a)(5)(C)), specified Executive Schedule positions,37 noncareer appointees in the Senior Executive Service, presidential appointees at or above the rate of pay for level V of the Executive Schedule (210(a)(5)(D)), and service performed as a Member of Congress (210(a)(5)(F)), as well as service in the legislative branch of the Federal Government. This coverage does not apply to individuals who, as of December 31, 1983, were covered under the Civil Service Retirement System (210(a)(5)(G)).
There is one difference in the calculation of Social Security benefits between the legislative and executive branch employees listed above in 210(a)(5) and other Federal civilian employees. Under the Social Security Amendments of 1983,38 Social Security benefits are reduced (the ``windfall benefit'' formula) for individuals who also have pensions from work that was not covered by Social Security, such as work covered under the Federal Civil Service Retirement System. This ``windfall benefit'' formula, however, does not apply to legislative and executive branch employees who were mandatorily covered by Social Security on January 1, 1984 ( 215(a)(7)(E)(i)).
25 Section 321 of the Civil Rights Act of 1991. See also 42 U.S. Code 2000e(f); 29 U.S. Code 630(f). For background on the 1991 legislation, see Charles Dale, The Civil Rights Act of 1991: A Legal History and Analysis, CRS Rept. No. 92-85A (Jan. 10, 1992).
26 U.S. Code 2000e-16(a). Note the distinction in coverage between executive branch employers, on the one hand, and the legislative and judicial branches, on the other. Only competitive service personnel in the latter are covered, while all employees of executive branch agencies, as defined in the relevant provisions of title 5 U.S. Code, come within the protective purview of the statute. See, e.g., Lawrence v. Staats, 640 F.2d 427 (D.C. Cir. 1981). In addition, civil rights coverage is extended by the statute to civilian personnel employed by the ``military departments,'' defined by referenced code provision as the Army, Navy, and Air Force Departments, as well as the Library of Congress and other specifically denominated agencies.
27 29 U.S. Code 791(b).
28 Pub. L. No. 101-336, 104 Stat. 328 (1990).
29 ADA 102(a), 42 U.S. Code 12112(a).
30 42 U.S. Code 12111(5)(B).
31 29 U.S. Code 791(b).
32 18 U.S. Code 207.
33 5 U.S. Code App. 7 501(a)), Section 601(a) of Public Law 101-194, adding Section 501(a) to the Ethics in Government Act; note Section 6(b) of Public Law 102-90.
34 5 U.S. Code App. 7 502, Public Law 101-194, Section 601(a), adding Section 502 to the Ethics in Government Act of 1978; Public Law 102-90, Section 6(b).
35 18 U.S. Code 201, 203, 204.
36 8 U.S. Code 205, 208, 209.
37 The positions are listed in 5 U.S. Code 5312-5317.
38 Pub. L. No. 98-21.