I. Introduction

The Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. §§ 1301 et seq., extends the protection of several anti-discrimination statutes to legislative branch employees, and also prohibits retaliation for protected activity. Many of the covered employees who participate in counseling and mediation at the Office of Compliance allege that they are subject to a discriminatory or retaliatory hostile work environment (“HWE”). In contrast to disparate treatment claims, in which discrete adverse employment actions taken against the employee are alleged to have been motivated by unlawful discrimination, HWE claims rest on a theory that the employee suffers from harassment because of his or her membership in a protected class, and that the harassment is so severe or pervasive as to alter the conditions of employment.

II. Standards

The Supreme Court has articulated the standards for establishing the existence of a hostile work environment in a series of landmark cases, and those standards have been applied in numerous cases before the OOC Board and the federal courts.¹

1) Prima Facie Case

a) Lowery v. Office of the Architect of the Capitol, No. 10-AC-14 (CV, RP), 2012 WL 6561376 (OOC Board Dec. 12, 2012) – To prove a hostile work environment claim, a plaintiff must show (1) he was a member of a protected group; (2) he was subject to unwelcome harassment in the form of unwelcome verbal or physical conduct involving the protected group; (3) the harassment was based on his membership in the protected group; (4) that the harassment affected a term, condition, or privilege of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) that the employing office knew or should have known of the harassment and failed to take appropriate remedial action.