Four years ago, Tarana Burke’s longstanding #MeToo movement went viral, sparking a global movement to address workplace harassment across industries. Yet today, the federal judiciary, the very institution tasked with enforcing anti-discrimination laws, has yet to fix the issue in its own house—and the Department of Justice is backing the judiciary.
On Nov. 3, DOJ attorneys filed a reply brief in Roe v. United States, et al., a case brought by a former public defender who experienced pervasive workplace sex discrimination, including sexual harassment and retaliation. In it, the government asked the appeals court to effectively sanction the federal judiciary’s woefully inadequate procedures for addressing workplace harassment by dismissing her case outright.
Such an endorsement might sound ridiculous, but thanks to a loophole in federal law, and some watered-down Constitution-based jurisprudence, it could very well happen. Luckily, we see potential for a fix that could more significantly protect judicial branch workers.
Most federal employees, like most private sector employees, have the protection of Title VII of the Civil Rights Act of 1964. The federal law shields employees from discrimination on the basis of race, color, religion, sex, national origin, and other protected categories. It provides employees with a cause of action, meaning that if they have been discriminated against, they can sue in court.
But for reasons that defy logic, Title VII does not cover judiciary employees. Time and again, the judiciary has professed that its employment dispute resolution procedures, which do not include a cause of action in federal court, are sufficient. As such, judiciary employees don’t receive the benefit of the anti-discrimination protections Title VII offers, and Roe can’t use it to sue for discrimination.
This doesn’t mean Roe has no claim here. Even without Title VII, if government supervisors subject their employees to sexual harassment and retaliation, one may argue they violate the employees’ constitutional right to equal protection under law. That idea comes from a 1971 Supreme Court case, Bivens v. Six Unknown Named Agents.
In Bivens, the court held that an individual, in that case Webster Bivens, could sue federal officers from the Bureau of Narcotics for violating his Fourth Amendment rights in an improper search of his residence. The officers had no warrant or probable cause, but they still arrested him, manacled him in front of his wife and children and threatened the entire family. The court ruled Bivens could sue the officers directly under the Constitution without relying on any specific federal law.
Unfortunately, in recent years Bivens has become increasingly disfavored. This past March, U.S. Court of Appeals for the Fifth Circuit Judge Don Willett expressed its current state in no uncertain terms: “Bivens today is essentially a relic, technically on the books but practically a dead letter, meaning this: If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
This means that in Roe’s case, even if a constitutional violation did occur, there may be no judicial remedy available to compensate her for the harm. “Constitutional rights without remedies” cannot be properly understood as true constitutional rights.
Since the judiciary created this problem, the judiciary can fix it, too. The Supreme Court could reinvigorate Bivens by holding once again that individuals can sue federal officials who violate their constitutional rights. On Nov. 5, the court granted granted a Bivens case that will be argued early next year.
Congress Can Act
In the meantime, Congress can help employees of the federal judiciary by expanding Title VII. In July, a bipartisan, bicameral group introduced a bill to do exactly that. The Judicial Accountability Act would extend the same workplace protections other federal employees enjoy to third branch employees.
Significantly, there might be some momentum behind congressional action. Earlier this month, Republicans and Democrats in both the House and Senate advanced a different but related workplace conduct bill — one that would prevent employers from sweeping sexual assault or harassment claims under the rug by enforcing mandatory arbitration agreements.
Sexual harassment, and indifference to it, are not unique to our third branch of government. What’s different is the lack of legal options available to wronged judiciary employees.
With Bivens on the ropes, Jane Roe might not receive the justice she deserves. That’s beyond shameful. For both her and the 31,000 others who work in the federal judiciary, meaningful remedies can’t come soon enough.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Ally Coll is the president and co-founder of the Purple Campaign, a non-profit organization dedicated to addressing workplace harassment in the wake of the #MeToo movement.
Dylan Hosmer-Quint is a law clerk at Fix the Court, a non-profit that advocates for greater transparency and accountability in the federal judiciary.