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Appellate Amicus Brief Details The Sexual Harassment Federal Judiciary Employees Face

More stories of harassment from the federal judiciary.

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Last week, attorneys from Keker, Van Nest & Peters filed an amicus brief in a Fourth Circuit Jane Roe case alleging harassment at a federal public defender’s office. The brief, filed on behalf of 26 current and former federal judiciary staffers, draws from more than just allegations from the public defender’s office (which falls under the auspices of the federal judiciary) to include allegations from a wide range of judiciary employees, including the very public allegations by former law clerks Olivia Warren and Heidi Bond.

“Amici file this brief to illustrate the nature of harassment and discrimination to which judiciary employees were subjected and the ways in which the judiciary’s internal adjudication processes have failed to prevent or remedy such misconduct. We hope the court takes away from this brief an understanding that Jane Roe’s experience was far from isolated. As is true within any institution, employees of the judiciary have faced and will continue to face instances of harassment and discrimination. They deserve a reporting and disciplinary process that is fair, unbiased, and which provides meaningful redress, reflecting best practices that are standard in other fields—including the rest of the legal industry.”

As detailed by Law.com, the allegations in the brief are eye opening — well, hopefully they are for those that haven’t been paying attention to the issue. One law clerk (18 of the signatories were former or current law clerks) said she was targeted for harassment when she announced she was pregnant. Despite reporting the harassment she says the judge began looking for her replacement and her offer of a two year extension was rescinded, and like that, she was out of a job “during the pandemic, just 10 days before her baby was born.”

And that’s far from the only shocking allegation in the brief:

One former clerk alleged that her male co-clerks at an appellate court “liked to joke about having sex with or raping [her],” with one male co-clerk making inappropriate comments about her body and asking graphic questions about her sex life. Another former clerk said a judge would comment on her appearance, including “on her legs and hair and instructions on what to wear.”

“She ultimately decided that the benefits of the clerkship outweighed the costs, but she found the experience to be ‘a disruption: frustrating, annoying, and exhausting,’” the brief reads.

Others went on with their own stories:

One amicus said she was encouraged to apply to be an assistant federal public defender by a male lawyer in the office, who would be her supervisor in the role. That attorney then asked her out, and after she declined twice, the amicus felt he “began to treat me differently,” according to the brief. The defender then asked her to resign after only three weeks on the job.

Another amicus said other members of a defenders’ office would gossip about him being gay, including with U.S. marshals and a judge. That amicus transferred to another office but faced “worse treatment” there, according to the brief, and heard from co-workers that a supervisor and others “speculated about his sex life and spread rumors that he slept with his clients.”

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The brief also describes how the lack of a clear reporting process limits what can be done:

“A lack of clear procedures prevents judiciary employees from obtaining full and fair investigation and adjudication of complaints regarding misconduct. Employees reporting misconduct frequently lack significant information about the scope and breadth of an investigation.”

Laura Minor, a former equal employment opportunity officer for the Administrative Office and the former secretary of the Judicial Conference, also points the the fundamental culture of the judiciary in preventing reforms:

“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. It was impossible for an employee to break through that,” Minor said, according to the brief. “Even if the judiciary says they can monitor themselves, the culture prohibits that. A lot of judges are really good people, but there’s something about being a member of the club. When somebody violates the rules, instead of holding them accountable, the judiciary makes sure nobody comes in and tells them what to do.”

And many in the system never even make it to the reporting phase because of those all important recommendations that hang in the balance:

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“On a professional level, judiciary employees face losing recommendations and tarnishing their reputations if they report misconduct. Because many supervisors in the judiciary are the only managers of their silos, they become the sole reference for those employees when seeking future employment.”

A spokesperson for the Administrative Office of the U.S. Courts refused to comment on pending litigation, but said that “current policies and procedures in place provide robust protections for our employees.” The statement went on:

“Judiciary employees are protected against discrimination, harassment, retaliation, and abusive conduct, and have multiple avenues to report workplace conduct concerns, including anonymously and to points of contact within or outside their employing office,” the statement reads. “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.”

Which is a markedly different perspective than the stories in the amicus brief.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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