I. Introduction

Section 201 of the Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. § 1311, extends the protection of several employment discrimination statutes to legislative branch employees. Employing offices are prohibited from discriminating against employees or applicants based on their membership in protected classes: race, color, sex, religion, national origin, age (over 40), or disability. One of the most common legal theories raised by plaintiffs in cases arising under this section of the statute is disparate treatment – i.e., that the employing office engaged in intentional discrimination by taking an adverse employment action against them because of their membership in one or more protected classes.

II. Disparate Treatment Claims

The first two elements of a prima facie case of disparate treatment discrimination are similar in OOC administrative proceedings and in federal court. The remainder of the prima facie case may change, however, based on the type of adverse action alleged. If a plaintiff alleges discriminatory non-selection for a position, they usually must show that after being rejected for a position for which they were qualified, the employer continued to seek applicants with the plaintiff’s qualifications or hired someone outside of their protected class. In cases involving other kinds of adverse employment actions, different sorts of evidence will be required.

Once the plaintiff has successfully made out a prima facie case, the well-established McDonnell Douglas burden-shifting framework comes into play to determine whether the case can be resolved on summary judgment. If the case advances to a trial or administrative hearing, the fact finder must decide the ultimate question of whether or not the adverse employment action was the result of unlawful discrimination.