One law clerk kept a written log of comments the judge she worked for made about her legs and hair, and his instructions on “what to wear.” Another said his judge subjected him to “mind games” and characterized his work as “garbage.” A third, who was engaged to be married, was asked during a job interview to confirm that she would not become pregnant during her one-year clerkship.
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Their allegations of harassment and discrimination are part of an unusually personal court filing submitted Thursday that points to gaps in the federal judiciary’s system for handling workplace misconduct complaints — despite policies put in place in recent years to address such problems.
In support of a lawsuit filed by a former public defender in North Carolina, more than 20 current and former law clerks and employees of federally funded public defender’s offices and the Administrative Office of the U.S. Courts in Washington offered firsthand accounts of a system that they say still lacks protections and procedures to hold officials accountable.
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“I watched for over 20 years and what I saw, every step of the way, was the judiciary circling the wagons any time there was a complaint made by an employee,” said Laura C. Minor, the former equal employment opportunity officer for the court’s administrative office and former secretary of the Judicial Conference, the policymaking body for federal courts that is overseen by Chief Justice John G. Roberts Jr.
“It was impossible for an employee to break through that.”
Read the brief submitted Thursday detailing alleged harassment
In response to the new allegations Thursday, the court’s administrative office said it could not comment on pending litigation. But it defended its current policies and procedures as providing “robust protections for our employees” with options for anonymously reporting concerns.
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“We take any complaints about misconduct in the workplace very seriously. The Judiciary is committed to a safe, respectful, civil workplace for all of its employees and continues to explore further improvements and enhancements to address workplace concerns,” the office’s statement said.
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Leaders of the U.S. courts — including then-D.C. Circuit Chief Judge Merrick Garland, who has since become the U.S. attorney general — overhauled the system for handling complaints in 2019 after The Washington Post revealed sexual misconduct claims against California-based appeals court judge Alex Kozinski. Kozinski subsequently stepped down from the bench.
Among other things, judiciary leaders required judges and employees to report likely misconduct and expanded reporting options. But the testimonials submitted in court said there are still barriers to reporting and concerns about confidentiality and retaliation.
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Unlike most U.S. workers, the approximately 30,000 employees in federal courthouses, public defender’s offices and the administrative office are not covered by federal laws that prohibit workplace discrimination and retaliation. Instead, as a separate branch of government, the judiciary has its own policies to provide those protections.
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Last month, a bipartisan group of lawmakers in the House and Senate introduced legislation that would ensure anti-discrimination rights for judicial branch employees, establish whistleblower protections, and create a special counsel to investigate and report on misconduct complaints within the federal judiciary.
Court officials have repeatedly opposed such legislation. In a letter to Congress on Wednesday, Roslynn R. Mauskopf, a federal judge who is director of the administrative office, said the proposal “fails to recognize the robust safeguards” already in place and interferes with the judiciary’s autonomy.
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The letter acknowledges that “there is additional work to do” but says the judiciary already “has in place the protections and mechanisms to provide for an exemplary workplace.”
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The legislation was inspired in part by the February 2020 testimony on Capitol Hill of Olivia Warren, a former law clerk to the late appeals court Judge Stephen R. Reinhardt.
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Warren, a Harvard Law graduate and attorney at the Center for Death Penalty Litigation, told House lawmakers that Reinhardt sexually harassed her and other female clerks, routinely criticizing her appearance and speculating about her sex life during her tenure at the U.S. Court of Appeals for the 9th Circuit.
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In a Harvard Law Review essay in June, she re-upped her criticism of the reporting system and the “staggering scale of institutional inaction and indifference,” saying that reforms put in place in recent years had fallen far short of what was needed.
“I am not aware of anyone taking any steps, much less the ‘bold steps’ over half of Reinhardt’s clerks called for — not the Ninth Circuit, not the federal judiciary, not Congress, not Harvard Law School, not any of the Reinhardt clerks themselves,” wrote Warren, who also signed on to the brief filed Thursday.
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The lawsuit by the former public defender in North Carolina challenged complaint procedures that she says deprived her of her constitutional rights to due process and equal protection by subjecting her to sex discrimination. It has drawn broad attention from civil rights organizations because it highlights what they say is an inadequate process and ineffective protection against harassment.
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The lawyer, listed in court as Jane Roe to protect her identity, said she sought help from Federal Defender Anthony Martinez after his top deputy targeted her for unwelcome attention that the lawsuit describes as “intense and obsessive.” She said Martinez responded “dismissively” and accused the court system of mishandling her complaint, according to a brief filed last week.
A federal judge dismissed her lawsuit in December, finding that federal court officials are shielded from legal liability and cannot be sued.
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On appeal at the 4th Circuit, Roe is represented by Harvard Law School professor Jeannie Suk Gersen and has the backing of more than 40 public-interest and civil rights organizations, in addition to constitutional scholars.
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Gersen said in a court filing last week that the judiciary’s internal complaint system was rife with conflicts of interest and failed to provide meaningful review or to stop the harassment. The system “facilitated and aggravated the hostile work environment, which became so intolerable that Roe was forced to resign and lose her career as a federal public defender.”
The Justice Department, representing the government defendants in their official capacity, has until next month to file its response to Roe’s appeal. Martinez’s lawyer declined to comment.
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Several former clerks interviewed for the brief filed in support of Roe said the judges they worked for made discriminatory remarks about job candidates based on race, gender and sexual orientation. One law clerk, who is gay, learned before the start of her tenure that her supervising judge repeatedly referred to her using a slur for her sexual orientation, the brief states.
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Some reported their experiences through the formal complaint process, but many did not because of the potential risk to their careers, according to the filing. Most agreed to share their experiences in the brief on the condition of anonymity because of concerns about retaliation.
“When harassment is perpetrated or sanctioned by a life-tenured judge or judicially appointed Federal Defender, reporting the misconduct may not feel like an option. And even for those who are brave enough to report their experiences, like Roe, the adjudication of their complaints often leaves them without meaningful recourse, subject to retaliation for exposing that misconduct in the first place,” says the brief, prepared by attorneys Deeva Shah and Erin E. Meyer.
Minor, who retired from the administrative office in 2017, said she too faced discrimination — as a woman and as a Black employee. But the anti-harassment plan she administered as a senior executive did not allow her to file a complaint.
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Even if the judiciary’s leaders say they can police themselves, Minor said in the brief, the insular culture of the judiciary prohibits that.
“When somebody violates the rules, instead of holding them accountable, the judiciary makes sure nobody comes in and tells them what to do,” she said in the court filing.
In an interview this week, Minor said she has great affection for the judiciary and former colleagues, but was motivated to speak out because of frustration with the system. For years, she cautioned employees who came to her with complaints. The process, she warned, was not designed to resolve employee problems, but to protect management.
Minor compared judges to kings and queens with disparate approaches to running individual court chambers, which she said makes it difficult to enforce consistent policies.
“The idea that the judiciary, a traditionally very conservative environment, could be progressive enough, self-aware enough to actually police themselves runs counter” to the culture in many courthouses, Minor said.
“Even an institution you love can have warts,” she said, “and from my perspective this is something that is crying out to be addressed.”