Courts

Federal Judiciary Misleadingly Conflates Low Number Of Sexual Harassment Complaints With Lack Of Misconduct

The AO seems not to understand that there is no greater power disparity in the legal profession than between a fresh-out-of-law-school clerk and a life-tenured federal judge.

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Just 9% of the 78 workplace dispute resolution matters initiated by federal court employees over the two-year period between 2021 and 2023 were initiated by term judicial law clerks, according to the Administrative Office of the U.S. Courts’ (AO) 2023 Workplace Report, released a few weeks ago. To put this in perspective, that’s around seven complaints over a two-year period, or fewer than five misconduct complaints per year.

This negligible number of workplace misconduct complaints suggests limited use of the federal judiciary’s employee dispute resolution (EDR) process and little progress toward fostering a culture of reporting, despite sustained criticism of the federal courts and several recent high-profile sexual harassment scandals.

Yet the AO wants you to believe that all is well, since admitting the scope and severity of the problem might necessitate actually implementing meaningful solutions. According to AO Director Judge Robert Conrad, “steady progress” has been made, “multiple robust reporting channels” exist for mistreated clerks, and the judiciary “does not have a judicial problem” because there have been few complaints. And, according to Conrad, law clerks are apparently at no higher risk than employees in any other workplace of being subjected to discrimination or harassment.

In fact, the AO does not know — or does not care to know — that abusive conduct is pervasive and unaddressed in the federal courts. What anyone with expertise in sexual harassment, employment law, or workplace misconduct knows (and sadly, many in the AO, including those tasked with handling law clerk issues, do not have this expertise), is that a low number of misconduct complaints does not signify a safe workplace. Rather, it suggests ineffective reporting mechanisms and that employees do not feel safe reporting misconduct internally.

The AO seems not to understand that there is no greater power disparity in the legal profession than between a fresh-out-of-law-school clerk and a life-tenured federal judge, necessitating at least the same workplace anti-discrimination protections for judicial law clerks, that the rest of us enjoy. Considering the enormous power disparity between subordinate and principal, lack of anti-discrimination protections for employees, and dearth of effective reporting channels or law clerk points of contact for assistance, judicial chambers are workplaces particularly conducive to abusive conduct.

It is quite simple: law clerks do not and will not report misconduct within the federal judiciary as long as they are not legally protected against retaliation under Title VII of the Civil Rights Act of 1964. Yet the judiciary still opposes extending Title VII protections to its more than 30,000 employees.

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It is disheartening but not surprising, that just days after an entrenched federal judge asserted, categorically, that judges should not be criticized, the AO would characterize advocates as alarmists for pointing out systemic failures. This report, and the regressive statements made by the AO about it, should give law clerks, prospective clerks, attorneys, and the public absolutely zero confidence that the federal judiciary can effectively and impartially handle sexual harassment disputes internally. Disturbingly, this workplace that spends so much time touting its law clerk program and recruiting judicial clerks, apparently cares little about clerks’ well-being.

As someone who regularly counsels law clerks on their options to address misconduct, most mistreated clerks I speak with have not and would not report misconduct within existing judiciary channels, because they do not believe it will be taken seriously and investigated vigorously. And with limited remedies available to clerks, no legal protection against retaliation, and, sadly, often no legal counsel to assist them, it is difficult to convince clerks to stick their necks out and blow the whistle on misconduct. Law clerks face enormous headwinds in reporting misconduct: the federal judiciary does not make the process any easier.

The AO’s 2023 report says little, obfuscates often, and leaves experts and advocates with more questions than answers.

The report focuses on the EDR Plan, the judiciary’s toothless and insufficient “alternative” to extending Title VII and other anti-discrimination protections to employees. Of course, there is no substitute for extending legal protections to employees, an argument federal judges should understand, considering that they preside over Title VII cases themselves.

What Is EDR, And What’s Wrong With It?

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EDR is the internal workplace dispute resolution process whereby a mistreated clerk can file a complaint against the judge they work for, alleging discrimination, harassment, abusive conduct (bullying), or retaliation. Yet it’s a byzantine process that differs by circuit, and far too little is delineated in writing.

And, it is rife with conflicts of interest. Too much is at the discretion of individual presiding judicial officers (PJOs) — judges in the courthouse where the complainant law clerk and misbehaving judge work (basically, the judge’s colleagues and friends). And fellow judges are unable or unwilling to sit in impartial judgment of their colleagues’ misconduct.

This confusing pseudo-legal process necessitates hiring an attorney. Yet no monetary remedies are available through EDR, and most attorneys in the jurisdiction are “conflicted out” (since they do not want to go up against judges in the jurisdiction where they represent clients). Sadly, too often, law clerks are forced to represent themselves, going up against the overwhelming force of the federal judiciary — thereby exacerbating the enormous power disparity between fresh-out-of-law-school clerk and life-tenured federal judge.

Picture this: a 20-something recent law graduate in their first legal job, going up against a life-tenured judge, is forced to become investigator and employment law counselor and figure out how to enforce their rights. It is not a fair fight, and that’s by design. The process is ripe for abuse, due to the enormous power disparity between judge and clerk. And clerks are regularly gas-lit or misled by PJOs and the AO.

But most law clerks never even get to this stage, because many are stymied at Step 1 of the reporting process: confiding in their circuit director of workplace relations (DWR), theoretically a law clerk point of contact who, in reality, serves as HR for the judiciary. Importantly, DWRs do not have the proper training or expertise to advise clerks on legal issues — they are not required to have law degrees; many did not clerk themselves; and some do not even have employment law or human resources experience. Yet too often, they dissuade clerks from filing complaints, advising them that their allegations do not rise to the level of abusive conduct or that there aren’t enough co-complainants for them to be successful, even though they do not have the expertise to advise on these matters.

Sadly, this “informal advice” is not a category of EDR data that the judiciary even collects and reports. We have no idea how often clerks contact DWRs, nor how many (or which) judges clerks complain about. DWRs possess a treasure trove of potentially actionable judicial misconduct information. While they are empowered in the limited circumstance of an imminent threat to share information with their superiors, mostly, they are either silent bystanders or outright enablers of judicial misconduct. Some DWRs know where the bodies are buried, yet clerks’ informal reports rarely lead to action or discipline.

EDR lacks meaningful remedies. The best a clerk can hope for is reassignment to a different judge for the remainder of the clerkship, which is not guaranteed, since it depends on another judge’s willingness to take on an extra clerk and the clerk’s ability to potentially uproot their life again and move for another clerkship.

And, there is no accountability (discipline) for judges who commit misconduct. While judges occasionally undergo “remedial training,” it is voluntary — agreed to by the judge.

Considering the lack of redress, and the substantial risk that a judge will retaliate against the clerk who blew the whistle (which they are not currently legally prohibited from doing), it’s a hard sell to convince clerks to report misconduct. And the negligible number of complaints and lack of transparent data — combined with the AO’s claims that misconduct is not a problem — do not give clerks confidence that they will be taken seriously.

In the year since this report was compiled, the federal judiciary has been plagued by numerous scandals, underscoring that reporting and disciplinary processes do not work.

First, this spring, we learned that Second Circuit Judge Sarah Merriam was “reprimanded” under the EDR Plan in December 2023 for an “overly harsh work environment.” The “discipline” she received? She agreed to watch some training videos. No one — except perhaps the AO — honestly believes this type of voluntary “discipline” will solve the problem.

The judiciary vociferously opposed transparency in this matter by redacting the judge’s name from the disciplinary order, prompting anxious incoming Second Circuit clerks to reach out to me to inquire about the judge’s identity (which I did not know at the time). The judiciary does not understand that there can be no accountability without transparency. 

Then, in July, former Alaska federal judge Joshua Kindred resigned in scandal, after a 20-month Ninth Circuit Judicial Council investigation revealing appalling abuse and sexual harassment in his chambers. Some in the judiciary have misleadingly pointed to Kindred as an example of internal processes working well. Yet during the lengthy investigation, the judiciary did not protect Kindred’s clerks, even though he was being investigated for sexual harassment, by reassigning them to a different judge, even though this option exists under EDR. And the fact that Kindred was able to get away with misconduct for as long as he did, points to insufficient reporting channels.

Weeks later, two reports were released — by the Federal Judicial Center and National Academy of Public Administration and U.S. Government Accountability Office — highlighting significant flaws in EDR: a lack of standardization, metrics for success, transparency, data collection and reporting, and proper training for those tasked with overseeing and implementing the plan.

The judiciary stonewalled investigators collecting data for these reports and generally refused to cooperate, claiming the investigations were “duplicative” of its 2023 workplace climate survey of the federal judiciary — a survey whose results, importantly, they have refused to release publicly due to “confidentiality” concerns. Of course, data can be anonymized. And this information has significant public importance. The results must be quite damaging — if it exonerated the judiciary, they’d release it.

Then, in late September, buoyed by public sentiment, Congress reintroduced the bipartisan Judiciary Accountability Act (JAA), which would finally extend federal anti-discrimination protections to 30,000 exempt judiciary employees; standardize EDR plans across all circuits; create multiple confidential reporting channels; establish an office of employee advocacy to provide legal advice to clerks; and impose data collection and reporting requirements — requiring the judiciary to collect and report results, publicly and to Congress, of an annual workplace culture assessment, demographics of law clerk hiring, and outcomes of judicial misconduct complaints. Because quantifying the scope of these problems, is the first step toward crafting effective solutions.

And, of course, former North Carolina public defender Caryn Devins Strickland has been engaged in a protracted legal battle with the federal judiciary since 2020 for mishandling her sexual harassment complaint, challenging the EDR Plan as both facially unfair and unfair as applied to her. Despite Strickland’s ordeal, the federal judiciary has categorically refused to take any responsibility and has fought Strickland at every turn. Strickland appealed in October.

The window-dressing changes the federal judiciary has implemented over the past few years, detailed in the report, are not serious solutions. An effective internal dispute resolution system would promote transparency, accountability, and impartiality.

Transparency: The federal judiciary should release the full results of its 2023 workplace culture assessment, as well as EDR data broken down by federal circuit, and the identities of judges adjudicated to have committed misconduct under the EDR Plan. And, the judiciary should commit to annual public data disclosures of this nature.

Accountability: Judges have life tenure, but that does not mean they cannot be disciplined through robust misconduct investigations when DWRs or chief judges learn about misconduct, unredacted disciplinary orders, mandatory remedial training, public reprimand, and suspension. Take away judges’ cases for a set period. Perhaps even take away their law clerks. Right now, judges must “agree” to remedial training, and there are no metrics or oversight to ensure that bad behavior does not recur. For judges found to have committed misconduct, for example, a DWR could check in with their clerks monthly for a five-year period, and the judge could participate in mandatory monthly check-ins with the chief judge.

Impartiality: The EDR Plan should be taken out of the federal judiciary’s chain of command and overseen by neutral third-party civil rights investigators, not judges.

Transparency is accountability: these steps would deter judicial misconduct and foster good behavior, because judges’ reputations might finally suffer if they continued mistreating employees.

EDR is a Band-Aid over a bullet hole. Sweeping reform, including but not limited to total overhaul of the EDR Plan and extending federal anti-discrimination protections to clerks, is urgently necessary.

There is no substitute for extending basic workplace protections to judiciary employees. It is the height of injustice that law clerks — the public servants who support the daily functioning of our courts — lack basic workplace protections and that judges are exempt from the laws they interpret. The anti-discrimination laws that apply to most other workers, should apply to judiciary employees, too.

Judiciary leadership is insular, composed of judges and their staunchest defenders. They rarely encounter dissent or alternative perspectives. Even the Workplace Conduct Working Group tasked with addressing law clerk issues, does not include any law clerks or law clerk advocates. Until outside perspectives are invited to the table to advise on reforms, the judiciary will be plagued by scandal and critique.

Sadly, in the short term, congressional oversight — and meaningful judiciary internal reform — are likely wishful thinking, considering the political climate in Washington, congressional intransigence, and federal judiciary obstinance. Fortunately, aspiring law clerks can access a third-party transparency and accountability resource for candid, unbiased information about abusive judges to avoid (and good bosses to work for), and former clerks can warn prospective clerks without fear of retaliation by judges.

Resources like my nonprofit’s Centralized Clerkships Database do not require buy-in from the federal judiciary, nor Congress, nor law schools to make the change that’s clearly necessary. Especially considering the bleak picture offered by the AO’s 2023 report and what it signals — limited recognition of the scope of judicial misconduct and limited interest in implementing effective solutions — third-party alternatives have never been more important.

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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