The House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing March 17 on harassment in the federal judiciary, during which numerous former employees of the federal judiciary delivered powerful testimony about the need for further oversight.
This hearing comes against the backdrop of the judiciary’s opposition to a pending bill, the Judiciary Accountability Act of 2021 (HR 4827), which would ensure that the more than 30,000 employees of the federal judiciary are protected against discrimination, sexual harassment, retaliation, and other forms of workplace misconduct.
Scope of Judiciary Accountability Act
The act addresses the fact that federal judicial branch employees are still currently not protected by federal anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964, despite numerous #MeToo allegations coming out of our federal courts. The proposed legislation is intended to be responsive to the growing criticism of the judiciary’s record thus far in preventing, investigating, and redressing sexual harassment and discrimination by judges and other high-level judicial branch officials.
By extending federal employment discrimination protections, including prohibitions on race, sex, age, and disability discrimination, the proposed legislation does a lot to address the gaps in protections for federal workers in the judicial system. The draft legislation would also give whistleblowers in the federal judiciary protections from retaliation.
In addition, the act establishes several new structures within the judicial branch in order to advance these aims, including the creation of a 16-member Committee on Judicial Integrity and an Office of Judicial Integrity to oversee a workplace misconduct prevention program. The pending legislation would also create an Office of Special Counsel for Equal Employment to conduct investigations of misconduct and workplace climate surveys and report its findings back to Congress.
Judicial Workers Need Parental Leave, Also
These protections undoubtedly would be a huge step forward. As reports of sexual harassment of federal judiciary employees have increasingly come to light, it is clear that judicial workers need better safeguards to protect their rights.
But even if these reforms are passed, significant barriers would remain for many employees in the federal judiciary, including the lack of any parental leave, which most other federal employees get under the Federal Employee Paid Leave Act. Indeed, current law grants many federal employees up to 12 weeks of paid time off for birth or placement of a child.
As one commentator explained in discussing the lack of women in the country’s top legal ranks, “women who take  clerkships must balance a roughly 1 in 20 shot at a SCOTUS clerkship against the biological reality that they have a limited number of years to have a family.” And one need only to look at the story of Caitlyn Clark and the egregious pregnancy discrimination she allegedly experienced to highlight the fact that more is needed.
When Rachel Tuchman (the co-author) was months out from beginning her federal judicial clerkship in 2018, she was pregnant with her now 3-year-old daughter. Without any policy whatsoever to reference in terms of what parental leave—if any—she could receive as a law clerk, our law firm, Kaplan Hecker & Fink LLP, in collaboration with the incredible support of the future judge for whom she would be clerking, devised a “revolutionary arrangement” that would permit Rachel to take parental leave during her clerkship.
But the success of this arrangement was entirely dependent on numerous unique factors that are not present for most women facing this predicament—namely, a creative plan that required the flexibility of both our law firm and the federal judge. And in fact, since an article was published in 2018 about such an arrangement, Rachel has received countless phone calls from future law clerks asking “how to arrange maternity leave” while clerking, many of whom express concerns that they will be fired if they let their judges know that they are expecting a child.
Indeed, on one law school forum, a prospective clerk explained that while she was hoping to get pregnant after a series of miscarriages, she worried that becoming pregnant would be “career suicide.” In 2022, expecting parents should not have to put off opportunities, such as important and prestigious judicial clerkships, because of their parental responsibilities.
Paid Leave Should Be a Right, Not a Privilege
So, what should Congress do? Make no mistake: we stand firmly behind the Judiciary Accountability Act of 2021 and hope Congress moves swiftly to pass the bill. But despite the fact that the proposed bill’s extension provides basic protections from pregnancy discrimination, prohibiting pregnancy discrimination alone does not do enough to protect all federal judiciary workers who may choose to have children while working. Thus, following the passage of the Judiciary Accountability Act, Congress needs to extend paid parental leave to all federal judiciary employees.
The availability of parental leave for judicial law clerks should not be solely a consequence of good fortune, such as the creativity and open mindedness of one federal judge. Extending parental leave to all federal judiciary employees would send a message that no one should have to choose between advancing their careers and starting a family.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Roberta (“Robbie”) Kaplan is the founder of Kaplan Hecker & Fink LLP. In addition to a complex civil litigation practice, she advises clients on issues relating to discrimination, diversity and inclusion.
Rachel Tuchman is an an associate at Kaplan Hecker & Fink LLP. She represents clients in complex civil litigation and investigations pertaining to gender discrimination, #MeToo issues, and Title VII and Title IX litigation in education and workplace settings.