In 2017, the federal judiciary undertook reforming its own sexual harassment and discrimination policies after multiple women came forward to allege abuse by Alex Kozinski, the former Chief Judge of the Ninth Circuit Court of Appeals. In 2020, the House Judiciary Committee heard testimony about a continued lack of transparency given ongoing judicial workplace harassment and abuse (I testified at that hearing). Last week, another House Judiciary subcommittee hearing took place, this time focused on bipartisan legislation, the Judiciary Accountability Act, that could create statutory workplace protections for judiciary employees. The JAA would bar discrimination on the basis of race, color, religion, race, sex, national origin, age or disability, and offer protections for whistleblowers. The federal courts have taken the position that the proposed legislation “interferes with the internal governance of the Third Branch.”
Among those who testified Thursday were Laura Minor, a former employee for the Administrative Office of the U.S. Courts, who resigned as the agency’s Equal Employment Opportunity Officer in 2013 after repeatedly flagging concerns regarding the flaws in the judiciary’s reporting procedures and the need for cultural change. Caitlyn Clark, who clerked for U.S. District Judge C. Ashley Royal in the Middle District of Georgia, testified about being fired from her clerkship after disclosing that she was pregnant. She was fired ten days before she gave birth. Also testifying was Caryn Devins Strickland, a former assistant federal public defender, who sued the federal judiciary as a Jane Doe, over its protocols for handling harassment complaints. Ally Coll, president of the Purple Campaign, a nonprofit focused on addressing workplace harassment, testified as well.
Deeva Shah has been involved with this issue from the outset. An attorney at Keker, Van Nest & Peters LLP, she’s worked with Law Clerks for Workplace Accountability and testified at the 2020 hearing about the need for substantial reform. In 2020, Olivia Warren also testified about harassment she experienced while clerking for Judge Stephen Reinhardt. Both Shah and Warren attended Thursday’s hearing, where Shah represented Minor as well as three other people who provided written testimony. The views represented here are the lawyers’ alone, and not those of their employers or clients. Our discussion has been lightly edited for clarity:
Dahlia: So we’ve been holding these hearings since 2018. I wanted to ask both of you what’s changed and what feels the same?
Liv: I’m impressed by how much Congress has learned about this issue, and the bipartisan engagement. There’s a lot more fluency with the structure of the judiciary, the power disparities throughout, and the absence of basic procedural fairness, much less any enforcement mechanisms. Members on both sides of the aisle demonstrated a deeper and more nuanced engagement with workplace discrimination in the judiciary, especially the fear of retaliation and the top-down cultural problems. The 2020 hearing involved a lot of education, and it’s clear that Congress is listening. What hasn’t changed is that judiciary employees continue to face harassment and discrimination. And the same problems persist with each iteration of the judiciary’s internal procedures: a lack of transparency, lack of due process, and lack of unbiased adjudication.
Deeva: Echoing Liv’s impression regarding Congressional engagement and education, I am also impressed by the depth of public and media engagement on this issue. Two years ago, although we saw widespread shock after Liv’s testimony, the responses showed a lack of awareness on these issues. Public statements attempted to minimize this as an issue of one—or at most, a few—bad apples. Journalists frequently deferred to the judiciary on whether the 2019 changes to its reporting procedures were effective, even though Liv’s testimony provided an example of how certain changes were already ineffective.
But since 2020, and especially after Thursday’s hearing, it has become harder to take those surface-level responses seriously. Despite the judiciary’s insistence that procedures have changed, the allegations have not. More current and former judiciary employees have come forward and shared (1) allegations of harassment and discrimination and (2) clear examples of how even the current reporting procedures are flawed in significant ways. One of the anonymous letters submitted for the record makes clear that even when a claim is substantiated, employees could still have no remedy. Another anonymous letter details the use of NDAs, which effectively prevent other employees from ascertaining patterns or practices of misconduct. The media has noticed that the judiciary “either cannot or will not shine a necessary light on this problem,” as Laura Minor testified.
Dahlia: Before Thursday’s hearing the Working Group of judges and officials who have been tasked with reforming the judiciary’s sexual harassment and misconduct policies released several proposed reforms. Everyone concedes they are another step in the right direction but what are they missing?
Deeva: I can’t really concede that these changes are a step in the right direction, because the recommendations are either too vague to make any such prediction, or may be ineffective because of cultural and structural problems. For example, the Working Group recommends that employee complaints be overseen by a judge from outside the court from which the complaint originated. But at last week’s hearing, the Subcommittee heard from Caitlyn Clark, a former law clerk who experienced a clear cut case of pregnancy discrimination. Clark’s case was heard by a judge in another district, yet that did not resolve the lack of impartiality inherent in those proceedings.
As another example, the Working Group correctly recognizes that the judiciary “is one of the few workplaces that does not include the additional monetary remedies available to employees in other agencies or organizations.” Although the Working Group recommends that the judiciary “assess incorporation of additional monetary remedies,” it is unclear what this recommendation means, how long assessment will take, or whether and what change will occur. And expanded remedies are pointless if judges are unwilling to impose those remedies on each other. As Minor said at the hearing, in her 23 years in the judiciary, “although judges hold many of us accountable, they cannot and do not want to hold each other accountable.”
That brings me to my final concern: Almost all other federal employees can rely on basic workplace protections codified by law, statutes including the Civil Rights Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. Those protections ensure that employees do not have to depend on an employer’s unenforceable promise of good faith and impartiality to address harassment and discrimination. Judge McKeown and Robinson – both on the Working Group – provided written testimony to the Subcommittee which states that “[j]udiciary employees are protected” by those employment laws and policies. That is wrong: in fact, the judiciary has taken the exact opposite stance in Strickland’s case and argued that “Judicial Branch employees are precluded from bringing employment-based claims in federal court.” Judiciary employees can only enforce these rights through the EDR process, where they cannot access the statutory remedies, and cannot have any guarantee of access to evidence, discovery, hearings, or other procedural safeguards. A heartfelt promise from an employer is not akin to statutory protection enforceable in court, especially when those procedures continue to fail.
Liv: I agree that the proposed reforms are missing enforcement mechanisms and remedies that the JAA provides. And while I appreciate the suggestion for a nationwide climate survey, it’s unclear why the judiciary is now considering this long overdue change, which advocates have repeatedly pushed for since 2017. The judiciary’s repeated insistence that the workplace issues are really just “incivility”—including in Chief Justice Roberts’s annual report—make me very skeptical that people will feel they can answer openly and honestly in a long overdue nationwide climate survey. As Rep. Louie Gohmert (R-TX) stressed, these statements do not invite the candid reflection needed to fix the cultural problems.
Dahlia: One exchange that felt like it was decidedly new happened when Rep. Mondaire Jones (D-NY) questioned federal judges about Alex Kozinski and Stephen Reinhardt. It was the first time a judge has been questioned directly about what they knew about what I had described at the time as an “open secret.”
Liv: I think Judge McKeown’s answers made clear there is no plausible deniability for the judiciary. She carefully parsed that she had heard about then-Judge Kozinski’s “unusual personality” and “antics,” but not “the kind of allegations that these individuals came forward with.” I am very concerned that Judge McKeown and the rest of the Ninth Circuit have not engaged in a meaningful reflection and investigation about how and why they were purportedly unaware of such flagrant misconduct. If Judge McKeown knew about Kozinski’s “antics,” and the longtime Circuit Executive Cathy Catterson knew about Reinhardt’s “bark” and “bite,” how and why did they not identify these as obvious red flags? Finally, the judiciary’s knowledge of this conduct is not unknowable: there is extensive documentary evidence that could be explored on this question. And I think it’s hard to imagine the judiciary can move forward in good faith when even the people at the helm of their efforts refuse to ask how we got here.
I know that many people applauded this exchange, as did I. But Representative Jones’s four questions are the most accountability any of the several hundred employees who went through those chambers have had, and we deserve more.
Deeva: If we take the judiciary’s response here at face value, it’s emblematic of the amount of deference and good faith that judges show each other. Although judicial deference is a core tenet in judicial decision-making, that level of deference in the employment context shows a lack of impartiality and creates an atypical presumption of good faith any complainant must overcome. In no other employment context do we immediately give managers such deference, while we also allow them to serve as the investigators and adjudicators.
Dahlia: Is there anything to be hopeful for? Some takeaway to persuade us that this isn’t the same old Groundhog Day hearings?
Deeva: As I said at the outset, I am hopeful about the amount of awareness and education we are seeing. I am also optimistic about how the tone has shifted from complete deference to the judiciary to an acceptance that, in this context, the judiciary is just another employer and should be treated as one. On the other hand, I worry that continued hearings may do harm: the numerous law clerks I’ve spoken to since the hearing note that the judiciary’s repeated insistence on self-policing hurts an employee’s likelihood of reporting and also further diminishes the credibility of the judiciary in their eyes.
On a personal level, testifying two years ago felt a lot more terrifying, especially as a young lawyer just starting out in her career and hoping to practice before the federal courts. Now, I have heard from judges and judiciary employees that this advocacy work is seen, by at least some, as a necessary part of changing an institution we all care about and practice within for the better.
Liv: I, too, am heartened by how many lawyers are now willing to get involved in these cases, which were long viewed as too controversial by even law professors, much less attorneys practicing full time in federal courts. Honestly, it is hard to be hopeful when I am so exhausted by the actual thousands of hours of my time that this has consumed over the past five years. But I do sleep very well at night, because I know I have done all I possibly can. And I won’t stop.