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Sexual Harassment Called Persistent in Judiciary Workplaces (1)

Aug. 26, 2021, 5:51 PMUpdated: Aug. 26, 2021, 8:21 PM

Current and former employees of the federal judiciary alleged in an amicus brief that sexual and other harassment persists and that the court system continues to fail to protect workers from office misconduct.

One appellate clerk in the amicus filed Thursday in a sex harassment suit alleged that her male co-clerks “liked to joke about having sex with or raping” her. Another amicus described how a male clerk, with whom she shared an office, “made inappropriate remarks about her body, including trying to guess her bra size.”

A third law clerk recounted how her judge’s judicial assistant critiqued her clothes, hair and lack of makeup and made disparaging comments about queer and Jewish individuals. The brief notes the clerk is bisexual and Jewish.

Despite these allegations, the brief notes that many potential amici were deterred from detailing their experiences, even anonymously, because of the potential impact on their careers and their lives.

The brief was filed in support of a former assistant federal public defender known as Jane Roe, whose claims were dismissed after the U.S. District Court for the Western District of North Carolina found that, unlike other private and government employers, she couldn’t sue the federal judiciary over her claims of sex harassment.

“Jane Roe’s experience was far from isolated,” the amicus brief said of the alleged harassment that occurred across the country.

It also claims that the judiciary’s current reporting scheme still doesn’t protect workers despite being updated following allegations of sex harassment from clerks and others that forced former Ninth Circuit Judge Alex Kozinski into retirement in 2017.

“The unique insulation of the federal judiciary from the typical legal mechanisms for accountability has resulted in ‘self-policing’ that is largely ineffective, leaving victims of harassment and discrimination to suffer,” Deeva Shah, an attorney with Keker, Van Nest & Peters, which filed the brief, said in a statement.

The Administrative Office of the U.S. Courts, the entity that oversees non-judicial operations of the court system, said it couldn’t comment on the pending litigation. But it defended action taken so far to address harassment and continues to explore other steps.

“We believe that the current policies and procedures in place provide robust protections for our employees,” the courts’ office said in a statement. “Judiciary employees are protected against discrimination, harassment, retaliation, and abusive conduct, and have multiple avenues to report workplace conduct concerns, including anonymously and to points of contact within or outside their employing office.”

But the court system’s current reporting process “disincentivizes reporting, entrenches misconduct, and leaves judiciary employees without basic employment protections or due process,” the brief said.

It notes that the biggest barrier to reporting is the lack of confidentiality and the risk of retaliation.

“Facing the potential professional and personal repercussions, many amici did not feel reporting was a realistic option without meaningful confidentiality,” the brief said.

The brief also said the opaqueness of the process, the lack of impartiality, and the limited remedies available through the court’s self-policing reporting scheme make it ineffective.

Separately, the judiciary wrote a letter to congressional lawmakers this week opposing legislation that would give its workers the same antidiscrimination rights and whistleblower protections as other federal employees. It said the measure would interfere with internal governance of the judiciary.

(Adds courts' office statement, paragraphs 9-10, and other edits.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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