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Judicial Branch Employees Have No Rights At Work. The Judiciary A

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If you graduate from law school and go work for a law firm, and you’re bullied, sexually harassed, or retaliated against by your employer, your first move is probably filing a complaint with human resources. If that fails, you might explore your options under Title VII of the Civil Rights Act of 1964, a federal law that protects employees against workplace discrimination based on race, color, religion, sex, and national origin. These laws protect most government employees, too; as of 1995, under the Congressional Accountability Act and the Presidential and Executive Office Accountability Act, Hill staffers and White House staffers can also sue to enforce their rights.

The federal judiciary, however, is exempt from Title VII. So if you’re a law school graduate fortunate enough to land a judicial clerkship—a coveted stepping-stone to prestigious jobs in academia or public service, or a lucrative private practice career—and you’re mistreated by a judge, you have no legal recourse for harms done to your career, reputation, and future earning potential. Right now, judges are above the laws they enforce.

A recent case in North Carolina has brought renewed attention to this ongoing miscarriage of justice. Caryn Devins Strickland worked for just a few years as an assistant federal public defender in North Carolina—her dream job—between 2017 and 2019. As Strickland testified before a House subcommittee in 2022, soon after she started, the first assistant—one of the most powerful people in her office—began singling her out for “training” and unwelcome attention. Colleagues described him as “lustful,” “fixated,” “sexually attracted,” and “wanting” her in “not such a professional way.” In one email, entitled “Mas Dinero,” he told her he required “pay-for-stay,” which, in light of his interest in her, she viewed as quid pro quo sexual harassment.

Strickland raised her concerns with the federal defender, who told her to “work it out” with the person harassing her. He compared their working relationship to a “marriage” in which both people, he explained, have to find a way to “meet in the middle.”

Strickland contacted the Administrative Office of the U.S. Courts, which ostensibly provides services and support for judicial branch employees. But she was advised that, although her experience sounded like “textbook sexual harassment,” she should find another job, because the judiciary’s internal dispute resolution process, Employee Dispute Resolution (EDR), was “stacked” against employees. The officer responsible for defending Strickland’s civil rights even advised her to call in sick to “protect” herself.

EDR has earned every bit of its poor reputation. The system would be a pathetic excuse for due process if it were one of several options available to victims of mistreatment. For federal judiciary employees, though, it’s the only option. Unlike a Title VII complaint, where the burden is on the employer to investigate and remedy harassment, the burden in EDR is on the employee—a new law school graduate who probably isn’t represented by counsel—to assert and enforce their rights. And clerks have been primed, including by their law schools, to “tough it out” rather than assert their right to a safe and respectful workplace.

After filing an EDR complaint, the presiding officer—a judge in the courthouse where the complainant law clerk and respondent judge work—reviews it and decides whether to order discovery, contact witnesses, and hold a hearing. Yet fellow judges are notoriously unwilling to discipline their colleagues. Employment attorneys who have represented clerks in EDR characterize it as “a kangaroo court” that “lacks even the appearance of impartiality.” The only real remedy is reassignment to a different judge or federal defender’s office, which is not guaranteed. And unlike a Title VII complaint, monetary remedies are not available, even for employees who can be blackballed by their former employers.

In light of the myriad flaws in the process, most judiciary employees who are mistreated don’t bother pursuing EDR. Instead, they consult a Director of Workplace Relations (DWR), an official tasked with handling law clerk workplace issues, for informal advice. This, too, is wildly insufficient. Clerks tell me DWRs often dissuade them from filing complaints, advising that there aren’t enough other mistreated clerks for a complaint to be successful. Employment dispute resolutions plans, which vary by circuit, are short on specifics, which just gives presiding judicial officers even more discretion in the enforcement process.

Strickland did pursue EDR, since she wanted to continue working as a public defender. She requested the chief judge disqualify the federal defender from overseeing the investigation, since he was a named defendant in the complaint. The chief judge, who was “taken aback,” denied her request. In fact, the federal defender appointed the investigator in her case and oversaw the investigatory process, a glaring conflict of interest. The investigator interviewed none of Strickland’s witnesses and did not provide Strickland with a copy of the findings. Following unsuccessful mediation, she resigned only two years into her public defense career.

In March 2020, Strickland sued. Since the judiciary is exempt from Title VII, she asserted her Fifth Amendment due process right to a fair and impartial adjudication of her complaint, as well as her right to a safe and respectful workplace free from discrimination and harassment. Her case finally went to trial in December 2023 after a reassignment to William G. Young, a federal district court judge in Massachusetts. (Several Fourth Circuit judges were named defendants in her complaint.) The court heard closing arguments in Strickland’s case in early January, and she is still waiting on a verdict.

The Judiciary Accountability Act (JAA), a proposed federal law that I and others testified in support of two years ago, would provide much stronger protections to people in Strickland’s shoes. The law would allow them to sue under Title VII, and seek monetary damages for harms to their careers, reputations, and earning potentials. It would standardize EDR plans across all federal circuits and revise the complaint process so investigations can continue even if judges step down to evade accountability. And it would also impose data collection and reporting requirements for, among other things, the outcomes of judicial misconduct complaints, and demographic information about law clerk and public defender hiring. Quantifying these problems is the first step toward implementing meaningful reform.

The fundamental flaws that Strickland’s case exposes can only be remedied by passing the JAA. As a mediator in her case explained to her, “you give up a lot” to work for the federal judiciary. But you shouldn’t have to give up your civil rights.

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