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Judges Who Interpret Title VII Should Themselves Be Subject To It

Right now, judges are above the laws they enforce. There's a solution: the Judiciary Accountability Act must be passed.

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995442The federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, meaning judiciary employees — including law clerks and federal public defenders — cannot sue and seek damages for harms done to their careers, reputations, and earning potential. This month, many recent graduates begin coveted one- or two-year positions as law clerks for more than 1,000 federal judges, where they’ll work closely with and learn from the most powerful members of our profession. Yet in the worst circumstances, when judges mistreat their clerks and abuse their positions of power, clerks have limited legal recourse.

There’s a fix. The Judiciary Accountability Act (JAA) (H.R. 4827/S. 2553), introduced last Congress by the House and Senate Judiciary committees, would extend protections against gender, disability, and age discrimination to more than 31,000 federal judiciary employees. The JAA would create real judicial accountability, specifying that judicial misconduct investigations could continue even if the judge under investigation retires, resigns, or dies. Currently, if a judge steps down, the investigation into their misconduct ceases. That’s how one of the judiciary’s most notorious harassers, former Ninth Circuit judge Alex Kozinski, evaded accountability for mistreating numerous clerks, court employees, and others. The JAA would also create multiple confidential reporting channels for clerks; standardize internal Employee Dispute Resolution (EDR) plans; and create an overarching Commission on Judicial Integrity to oversee these programs, staffed primarily by members from outside the judiciary with civil rights and employment law experience, as well as several judges.

The JAA would also finally require the judiciary to collect and report data on workplace culture, diversity (or lack thereof) in law clerk and federal public defender hiring, and the outcomes of judicial misconduct complaints, which are currently shrouded in secrecy. The lack of data in these areas has enabled some judges to get away with misconduct for decades. It has also empowered some in judiciary leadership to assert that they’ve solved these problems because there hasn’t been another public Kozinski-type incident, thereby allowing them to both discount the scope of problematic behaviors in their ranks and disclaim responsibility for correcting them.

It has been difficult to quantify the scope of these problems, which is the first step toward crafting effective solutions. Last year, the judiciary announced it would conduct a workplace culture assessment (while specifically not committing to reporting the results publicly, an enormous red flag). The results remain to be seen. Any surveying by the judiciary will likely be an undercount, as law clerks are notoriously unwilling to report misconduct internally to the judiciary. Some individual circuits conduct internal workplace assessments. The D.C. Circuit made news last year about the results of their 2021 survey — not the fact that 57 employees reportedly experienced harassment or retaliation and an additional 134 witnessed or heard about problematic behavior — but that they seemed to care more about identifying the “leaker” of this internal survey, rather than implementing any reforms.

Unfortunately, the JAA stalled in Congress last year. This is due to a combination of congressional intransigence; the weirdly powerful Judicial Conference lobby, which opposes real reform; and insufficient attention paid to law clerks, the public servants who assist with the courts’ critical work and yet who lack basic workplace protections.

There is nothing unique about the federal judiciary such that they should be uniquely exempt from Title VII. Title VII initially applied primarily to private businesses. Then, in 1995, pursuant to two separate laws — the Congressional Accountability Act and Presidential and Executive Office Accountability Act — Congress extended Title VII to itself and to the executive branch. The judiciary has opposed extending Title VII to itself since then, even as other industries and other areas of the legal profession have experienced #MeToo reckonings, particularly in hierarchical workplaces with significant power disparities between employer and employees.

The Judicial Conference’s main arguments in opposition to the JAA — claims about judicial independence and separation of powers, as well as their insistence on self-policing — are unpersuasive. The JAA is a long overdue attempt to oversee judges’ workplace conduct, not their opinions. Judges’ independence in their rulings would not be threatened if we were to treat them as government employers running small workplaces, rather than gods we deify. We should hold judges — the most powerful members of our profession — to the highest ethical standards, not the lowest. The judiciary has had decades — centuries, in fact — to self-police: they have proven themselves unwilling or unable to do so. The separation of powers argument is particularly strange, considering that Congress oversees the judiciary every year — with its annual budget, one it beefed up last year with additional judicial security funding, despite the judiciary’s continued opposition to any mechanisms that would ensure safety or security for law clerks.

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This is not a partisan issue. Both Democratic and Republican judicial appointees mistreat their clerks. And both liberal and conservative clerks are mistreated by judges, with limited recourse available.

A well-meaning person with knowledge of these issues told me recently that whoever drafted the JAA doesn’t understand the judiciary, primarily because of the JAA’s top-heavy approach and aggressive oversight by outsiders. I would counter that those who oppose reform don’t understand law clerks and the fundamental right of employees to basic workplace protections. Some judges who have been on the bench for decades are too far removed from the everyday experience of being a law clerk — one of many reasons why judicial reform efforts benefit when judges are forced to confront clerkship experiences like mine.

Judicial chambers are small, isolated, and hierarchical. Law clerks work long hours in stressful circumstances with just a few coworkers. They have one boss — a powerful judge — who acts as hiring manager, human resources coordinator, and Diversity, Equity, and Inclusion (DEI) director, making final decisions about hiring and firing, hours, and accommodations. Law clerks have few good avenues to seek assistance. The federal courts maintain EDR Coordinators and Circuit Directors of Workplace Relations. Yet law clerks routinely convey to me that these individuals are not impartial arbiters because they are permanent judiciary employees: they compare these officials to human resources offices, which are perceived to protect employers. Furthermore, law clerks’ options are limited, considering the enormous power that judges can exert over clerks’ careers and the lack of legal protection against retaliation. In too many cases, law clerks are advised that the right professional decision is to stay silent.

Law clerks’ concerns about reputational harm in the legal community for saying anything negative about judges, as well as fears of retaliation by the judges who mistreated them — concerns the legal community has failed to address — often preclude them from filing complaints to initiate investigations, discipline, and reform. The fear that even a lukewarm reference from a judge could destroy their careers silences clerks. Yet law clerks’ silence also precludes reform.

Many rank-and-file federal judges convey to me that they support extending Title VII protections to the Third Branch. Judges who treat their clerks respectfully have nothing to fear from extending basic anti-discrimination protections to their employees. It should be a red flag if any judge continues to assert that they should be above the law.

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Other solutions would make judiciary workplaces safer. Passing the JAA doesn’t preclude them. The existing judicial accountability processes — the Judicial Conduct and Disability Act and EDR Plan — should be removed from the judiciary’s chain of command and handled by impartial investigators. Judges should not be tasked with investigating their colleagues, because they have been historically unwilling to discipline them, with rare exceptions. The judiciary should train judges on their role as managers. Law schools should provide more transparent information about judges as managers and clerkship experiences, including by supporting a third-party repository of reviews of judges — one that judges do not have access to, thereby limiting clerks’ concerns about reputational harm and retaliation.

Considering the enormous premium that the legal community — including law schools and legal employers — place on judicial clerkships and their outsized influence on new attorneys’ future career success, we owe it to the next generation of attorneys to ensure safe workplaces and accountability for judges who mistreat their clerks. Law clerks are not asking for special protections. The laws that apply to their counterparts throughout the legal profession and beyond should protect them as well. Law clerks cannot wait another year for these urgently needed reforms.

Congress should reintroduce and pass the JAA this year. No judge is above the law. And law clerks who support the daily functioning of our courts deserve to be treated fairly and respectfully.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.

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