If, after law school, you decide to work at a law firm, on the Hill, at the White House, or for the U.S. Department of Justice, and you are sexually harassed, you might first complain internally to Human Resources (HR). If that fails, you are empowered to sue your employer in civil court under Title VII of the Civil Rights Act of 1964 and seek monetary damages for harms done to your career, reputation, and future earning potential.
Not so, if you work for the federal judiciary.
Thousands of recent law graduates will embark on prestigious federal judicial clerkships this month. Some will then pursue careers in public service, perhaps as public defenders. Yet more than 30,000 employees of the federal judiciary have no legal recourse if they are discriminated against, harassed, bullied, or retaliated against. They can either endure mistreatment and suffer in silence or, if they speak up, risk retaliation by their powerful, life-tenured bosses.
Their only option for a modicum of “redress”? The Employee Dispute Resolution (EDR) Plan, the federal judiciary’s opaque, wholly internal dispute resolution process. This sham of a process, described by law clerks and civil rights attorneys who have participated as a “kangaroo court” that “lacks even the appearance of impartiality or due process,” is unnecessarily confusing and stacked against clerks. Fellow judges oversee the disciplinary process, and judges are unwilling or unable to judge colleagues’ misconduct impartially.
The federal judiciary insists on a wholly internal dispute resolution process for resolving sexual harassment claims. Yet several recent reports — by the Federal Judicial Center and National Academy of Public Administration, and from the U.S. Government Accountability Office — highlight that the EDR Plan is unclear, confusing, not universally accessible to employees on many U.S. Courts websites, and not standardized nationwide. And without any judiciary metrics for success or data collection requirements, particularly about the most-utilized option — “informal advice” — it is impossible to assess whether the EDR Plan achieves its desired objectives, unless the objective is to discourage complaints against abusive judges.
Troublingly, according to these same reports, those tasked with overseeing the EDR Plan — including courthouse EDR Coordinators and Circuit Directors of Workplace Relations (CDWRs) — lack proper training and qualifications to handle these sensitive investigations. And aspects of the EDR Plan — particularly staff training and written materials — do not meet Equal Employment Opportunity Commission (EEOC) standards, unlike other government employers’ materials.
As a result, EDR does not work for judiciary employees, a 285-page ruling issued on Friday further made clear. In a lengthy opinion that was at times condescending and suggested a lack of understanding of the insidious and often subtle nature of gender-based discrimination and harassment, Judge William G. Young found that former North Carolina federal public defender Caryn Devins Strickland failed to establish that the Fourth Circuit mishandled her sexual harassment complaint.
Strickland worked briefly as a public defender in the Federal Defender’s Office (FDO) for the Western District of North Carolina from 2017 to 2018, during which time she was sexually harassed, constructively discharged, and retaliated against. After reporting informally, Strickland pursued EDR. Yet her FDO superiors and the judiciary officials tasked with investigating her complaint appeared wholly indifferent to the mistreatment she experienced. While her supervisor was the subject of her complaint, he oversaw the investigation into his misconduct and refused to recuse himself, a clear conflict of interest. The deck was stacked against Strickland, who ultimately resigned.
Strickland then took the bold step of suing the Fourth Circuit in 2020. Since federal public defenders, like law clerks, are exempt from Title VII of the Civil Rights Act of 1964, Strickland raised novel constitutional claims, alleging that her rights had been violated through the mishandling of her complaint. Strickland asserted her right to a fair and respectful workplace, free from discrimination and harassment, and she alleged the EDR Plan was facially unfair and unfair as applied to her.
Far too many judiciary employees are stymied in their attempts to seek justice before they even file an EDR complaint by seeking “informal advice” from EDR coordinators or CDWRs. As is clear from testimony cited in this ruling, judiciary officials are not always fully forthcoming about clerks’ options for redress or the likelihood of success under EDR. Their role is more like “HR for the judiciary” than impartial employee points of contact. Some have been known to dissuade clerks from filing complaints at all, advising that the mistreatment they experienced does not rise to the level of abusive conduct or that there weren’t enough witnesses for them to be successful (despite lacking the training or qualifications to make such determinations).
Under the EDR Plan, the onus is on law clerks and public defenders, recent law graduates, to navigate the confusing process to enforce their rights. And this due-process-adjacent system requires judiciary employees to hire attorneys. This is challenging, since attorneys hesitate to go up against judges in jurisdictions where they practice. It’s also expensive: and since EDR does not afford monetary remedies, employees must either pay out-of-pocket or find pro bono counsel.
Despite the federal judiciary’s hollow claims about reform, they have not meaningfully improved the EDR Plan since Strickland attempted to navigate the byzantine reporting and complaint process more than six years ago. Far too little about the process is delineated in writing, which appears to be by design: after all, federal judges generally love to expound about process in writing. Too much is left to the individual discretion of presiding judges, subverting the judiciary’s own stated policy of impartiality and creating substantial risk that employees’ rights will be violated.
Strickland has been litigating her complaint for four years and waited eight months for this ruling. Of course, she cannot pursue her dream job as a federal public defender, as her former employer seems to have poisoned the well in her absence.
Strickland’s ordeal highlights the urgency of passing the Judiciary Accountability Act (JAA) and extending Title VII protections to more than 30,000 federal judiciary employees, including law clerks and public defenders. Due to an existing loophole in anti-discrimination laws, those who support the daily functioning of our courts currently have no legal recourse when they are harassed or retaliated against.
Strickland’s experience, rife with conflicts of interest and repeated injustices by a system tasked with doing justice, are evidence that, at a minimum, EDR investigations should be removed from the judiciary’s chain of command and handled by neutral civil rights investigators. This would remove even the appearance of a conflict of interest; ensure employees’ rights are protected; and give employees confidence that those tasked with investigating their complaints are properly trained on particularly sensitive issues.
Strickland is not the first judiciary employee to raise significant concerns about the EDR Plan. Clerks have told The Legal Accountability Project that presiding judges have discounted their allegations of mistreatment, remarking in response to clerks’ complaints that, “He’s such a nice guy!” and, “He probably didn’t mean it [when he harassed you].”
This sham of a process is judiciary employees’ only option. It is the height of injustice that employees who go to work every day within the courts, including assisting with Title VII cases, lack basic workplace protections themselves. And the far-reaching consequences they suffer when they are mistreated by the most powerful members of the legal profession clearly have ripple effects that can alter the course of their entire careers.
Interestingly, even Judge Young expounded on some limited “recommendations” for “reform.” According to Young:
One obdurate and inconvenient truth remains — in this case, a young woman with significant professional qualifications made a good faith claim of sexual harassment. As a result, she saw her desired career in public service stunted and ultimately withered such that her services have been lost to federal public service. That she is without redress under the present legal framework cannot be a cause for congratulation on the part of federal judges or administrators.
He continued, “Where sexual harassment is claimed, no accused judicial employee ought find solace in long years of exemplary service and an understanding boss. The issue is that important.”
He also characterized the Fourth Circuit’s response as “evidenc[ing] a ho-hum attitude toward a claim of this magnitude,” in comparison to the Ninth Circuit’s recent, and robust, investigation into former Alaska judge Joshua Kindred’s misconduct.
Clearly, sweeping reform and real accountability are urgently necessary. Judiciary employees deserve the right to safe and respectful workplaces, free from discrimination and harassment. Yet this is not a guarantee the federal judiciary can make right now to the thousands of law clerks and public defenders who are eagerly embarking on careers within the judiciary this month.
We must ensure that the promise of our federal court system — including the fair, swift, and impartial administration of justice — extends to judges who enforce and interpret our laws, as employers, and to the employees who support the daily functioning of our courts.
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 [email protected] and follow her on Twitter @AlizaShatzman.
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