Courts

You Give Up A Lot To Work For The Federal Judiciary

You shouldn’t have to give up your civil rights.

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spotlight on gavelIn most workplaces, if you are sexually harassed, your first course of action is to seek assistance from Human Resources. If that fails, you can assert your right to a safe workplace, free from discrimination and harassment, under Title VII of the Civil Rights Act of 1964.

But the antidiscrimination laws that apply to the rest of us, do not apply to more than 30,000 employees of the federal judiciary, including law clerks and public defenders. The judiciary would prefer you not dwell on that, since it might give some applicants pause before applying for federal clerkships.

This week, the federal judiciary’s Office of Judicial Integrity (OJI) will host their now-annual law clerk program about workplace protections for federal judiciary employees. OJI is an office within the Administrative Office of the U.S. Courts (AO) created in the wake of former judge Alex Kozinski’s resignation. This could be a short program, because mistreated clerks have a very short list of options available.

The TL;DR? The judiciary’s “alternative” to federal antidiscrimination protections, Employee Dispute Resolution (EDR), lacks standardization, meaningful remedies, uniform enforcement, transparency, and metrics for success. It is underutilized because it is ineffective, considering the judiciary has done nothing to ensure that clerks who file complaints are protected against retaliation by their powerful superiors.

In light of what will likely be a fact-light and misrepresentation-heavy presentation, it’s important to remind newly minted clerks about their very limited options if they are mistreated by their life-tenured, unaccountable bosses.

Much has changed since last year’s program. Many more clerks are now aware of the limited redress available to them, thanks to my nonprofit, The Legal Accountability Project’s (LAP), law school programming, thought leadership, robust social media presence, and national resources. At nearly all of the more than 50 LAP events I’ve done over the past two years, I’ve discussed why EDR and the Judicial Conduct & Disability (“JC&D”) Act fall short of basic workplace standards.

What else is different?

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In July, former Alaska federal judge Joshua Kindred resigned in scandal, after a 20-month Judicial Council investigation revealed appalling abuse and sexual harassment in his chambers. Yet this was not a total victory: during the lengthy investigation, the judiciary did nothing to protect Kindred’s clerks from continued mistreatment, or from retaliation for participating in the investigation, such as reassigning them to a different judge.

Then, back-to-back reports were published by the Federal Judicial Center and National Academy of Public Administration, and by the U.S. Government Accountability Office, underscoring significant flaws in the EDR Plan. These include a lack of standardization, transparency, data collection and reporting, metrics for success, and training for judiciary points of contact, including EDR Coordinators and Directors of Workplace Relations (DWRs) tasked with enforcing the EDR Plan.

Then, in September, Congress reintroduced the Judiciary Accountability Act (JAA), legislation that will finally extend Title VII and whistleblower retaliation protections to more than 30,000 federal judiciary employees. The JAA will also standardize EDR plans; revise the judicial complaint process; create multiple confidential reporting channels for clerks; and require the judiciary to collect and report annual data on demographics of clerk hiring, a workplace culture assessment, outcomes of judicial misconduct complaints, and metrics on employees’ use of the EDR Plan — since quantifying the scope of these problems is the first step toward crafting effective solutions.

And, of course, thousands of students and now-clerks have benefited from LAP’s Centralized Clerkships Database — “Glassdoor for Judges”—a repository of more than 1,400 candid reviews about nearly 1,000 federal and state judges that pulls back the curtain for applicants on judges’ management style, chambers culture, and workplace conduct.

Students, and clerks who are applying for another clerkship, do not need to sit through a lecture on hollow workplace “protections.” They can log into LAP’s database right now and find out which judges create positive work environments, and which ones do not.

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Sadly, the federal judiciary — particularly the AO and the Judicial Conference, but some individual judges, too — are unmoved by these developments and by the increasingly vocal calls for accountability and transparency in their ranks. They have made no changes in the wake of Kindred’s resignation, nor following these EDR reports — in fact, they stonewalled investigators trying to collect information for the reports.

If this OJI program is anything like last year’s, they will cover what they’ve referred to as “The 4 P’s: People, Policies, Process, and Procedures.” So, let’s break them down.

People

The federal judiciary is not sending their best people to prevent judges from sexually harassing law clerks.

The Office of Judicial Integrity appears to be one person. An office ostensibly tasked with overseeing the entire federal judiciary’s law clerk issues in 94 district courts and 13 federal circuit courts, for more than 1,000 federal judges, each of whom supervise between two and four law clerks annually (several thousand clerks total), should be more robustly staffed.

Most federal circuits have a Director of Workplace Relations (the 8th and 10th circuits share one, though there are enough issues that every circuit needs its own DWR). And every court has at least one EDR coordinator.

Some mistreated clerks turn to circuit DWR for “informal advice,” the most-utilized aspect of the EDR Plan. Unfortunately, DWRs and EDR coordinators do not possess the necessary formal training on human resources, employee workplace issues, or antidiscrimination law, nor are they required to be licensed attorneys, even though they advise clerks on legal issues.

I’ve heard from clerks that judiciary points of contact dissuaded them from filing complaints against judges, advising that their allegations did not rise to the level of abusive conduct or that there were not enough co-clerk complainants for them to be successful, even though they are not qualified to make these determinations.

Policies

A mistreated clerk can file an EDR complaint, JC&D Act complaint, or both. EDR is a wholly internal dispute resolution mechanism that allegedly offers a modicum of redress for clerks, whereas the JC&D Act is the disciplinary process for judges who engage in misconduct.

EDR would be a toothless, sorry excuse for an option if it were one of several options available. For judiciary employees, this is their only option. EDR has been described by attorneys who represented clerks in the process as a “kangaroo court” that “lacks even the appearance of impartiality or due process.”

That’s why former federal public defender Caryn Devins Strickland is suing the federal judiciary right now for mishandling her sexual harassment complaint, alleging the EDR Plan violates her due process rights and is both facially unfair and unfair as applied to her.

Why is EDR such a sham process?

First, the only available remedy, in reality, is reassignment to a different judge. Unlike a Title VII complaint, no monetary remedies are available through EDR, even for clerks who were terminated and struggle to find new employment.

Second, fellow judges in the courthouse where the mistreated clerk and respondent judge work preside over EDR. Yet judges are unable or unwilling to impartially judge their colleagues’ misconduct.

Third, it’s a byzantine process. Far too little is put in writing, which is almost certainly by design, considering how much the judiciary enjoys expounding in writing. Too much is left to the discretion of individual presiding judicial officers (the judge’s colleagues). And every circuit’s plan is a bit different.

As if this weren’t bad enough, only 26% of U.S. courts’ websites provide all necessary information about workplace conduct, and 11% contain no workplace conduct information at all, meaning employees are not properly informed of their rights.

Importantly, clerks engaging in EDR should hire attorneys to assist. Clerks are not employment law experts. Yet clerks and public defenders struggle to find legal representation because most attorneys in their jurisdictions are “conflicted out,” because they do not want to go up against judges in the jurisdiction where they practice.

Clerks are young, recent law graduates in their first legal job. Yet the judiciary puts the onus on them to figure out their rights and how to enforce them, forcing a mistreated clerk to play the role of civil rights investigator and employment counselor. If Title VII applied to the judiciary, the onus would be on the employer to ensure employees’ rights are protected.

If the judiciary actually wanted EDR to work for clerks — and wanted clerks to utilize the plan — they would provide them with legal counsel. They would also incorporate monetary remedies into EDR, so employment attorneys could represent clerks on a contingency fee basis, and at least get paid if successful.

A clerk can also file a JC&D Act complaint. However, a negligible number of complaints (typically fewer than 10 annually) are filed, because clerks are not legally protected against retaliation.

If the judiciary wanted these processes to work — for clerks to file complaints, and to root out misconduct — they would support the JAA, which would extend whistleblower protections against retaliation and revise the EDR Plan. The AO and Judicial Conference oppose the JAA, apparently signaling a belief that judges are above the laws they interpret.

Processes And Procedures

A process that relies on subordinates — fresh-out-of-law-school clerks, in their first legal jobs, totally dependent on judges for references and career advancement — to report on their life-tenured, powerful superiors, does not and will not work, unless clerks are legally protected against retaliation under Title VII.

Yet the judiciary refuses to even collect and report data, publicly and to Congress, on employees’ use of the EDR Plan. So, we can rely only on anecdotal data provided to LAP about the EDR Plan.

The landscape is bleak. Judiciary points of contact are described as “useless” and “unsympathetic” to clerk concerns. Clerks tell me they have not and would not report misconduct to the federal judiciary because they believe their concerns will not be taken seriously nor meaningfully resolved in a way that protects them from retaliation and holds their abusive bosses accountable. When the stakes are high, and the likelihood of success is low, clerks wonder, why stick their necks out?

Protections

Perhaps the AO intended to lump a fifth “P” — protections — into one of these categories. What workplace protections exist for clerks? None. The federal judiciary is exempt from Title VII of the Civil Rights Act, as well as the Americans with Disabilities Act (ADA), Rehabilitation Act, and Age Discrimination Act. If you are harassed, discriminated against, wrongfully terminated, or retaliated against by a federal judge, you cannot sue and seek damages for harms done to your career, reputation, and future earning potential.

In practice, judges can refuse to hire disabled clerks, refuse to accommodate their disabilities, or fire them rather than accommodate them.

Judges can fire clerks without cause. They can give retaliatory negative references if clerks speak up about mistreatment. They can derail clerks’ careers. All with impunity.

Strangely, sometimes the judiciary suggests that Title VII protections might apply to them. Here is a direct quote from one of last year’s OJI program slides:

“Judiciary policy protects employees (including law clerks) from conduct that would violate the following federal laws:

Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act

Americans With Disabilities Act

Family and Medical Leave Act…”

What does this mean? This obfuscation is by design.

But this is not the first time the judiciary asserted Title VII already applies to them: in 2022 congressional testimony, the judiciary co-chairs of the Workplace Conduct Working Group made a similar assertion to signal opposition to the JAA.

If the lack of P’s — policy, protection, process, and procedure — sounds dire, it should. I have spent the past several years attempting to engage with the federal judiciary, using both carrots and sticks. I have also invested hundreds of hours counseling clerks on their limited options for redress; and have reviewed thousands of clerkship experience surveys from clerks nationwide. Misconduct in the federal judiciary — and their disinterest, or lack of urgency, in addressing it — is a five-alarm fire.

We have seen nothing but window-dressing changes to court policies over the past decade. We owe it to the next generation of attorneys to be honest about challenges clerks face. To say anything less would be a disservice to the thousands of eager recent graduates embarking on careers within the federal judiciary, as well as to the thousands of law students applying for these prestigious positions without informed consent about the work environment.

Policies that are not enforceable — or, not enforced — are meaningless. The judiciary leans heavily on good faith, touting codes of conduct for judges and clerks that are little more than suggested conduct.

Yet judges are almost never held accountable. Clerks rarely file complaints. Complaints are rarely investigated. Judges are rarely disciplined. Even then, remedial measures are “voluntary” and the judiciary makes every effort to shield judges from accountability.

In light of this, here are some questions I would ask OJI at this presentation:

  1. How are clerks who file complaints protected against retaliation? Can you provide specific examples about how a clerk is protected when applying for post-clerkship jobs where the judge might be contacted as a reference?
  2. How many clerks in my circuit used the EDR Plan last year? How many were successfully reassigned? What are the most common outcomes in EDR?

The judiciary seems to believe retaliation does not happen (have they met me?), so they probably won’t answer Question 1. And since they allegedly does not keep track of EDR data and, to the extent they do, claim they cannot disclose anonymized trends while protecting clerk confidentiality, they’ll probably evade Question 2.

There has never been a more important time for the federal judiciary to take these issues seriously. Yet by stonewalling investigators and Congress, continuing to tout a dispute resolution process that is clearly ineffective and has engendered a high-profile lawsuit, and opposing reform efforts, they signal total disregard for the welfare of clerks.

It’s the height of injustice that law clerks, the public servants who support the daily functioning of our courts, lack basic workplace protections. That should be the key takeaway from any federal judiciary workplace conduct presentation.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.

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