Courts

Someone Is Actually Suing The Judiciary Over Sexual Harassment

It’s time for a reckoning.

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Sexual harassment – dictionary definitionLaw clerks and federal public defenders have no legal recourse when they are mistreated by the most powerful members of the judiciary.

The perception among some in the judiciary is that you “give up a lot” as a judiciary employee. Because the federal judiciary — including law clerks and federal public defenders — are exempt from Title VII of the Civil Rights Act of 1964, if you are harassed, discriminated against, or retaliated against by a member of the judiciary, you cannot sue and seek damages for harms done to your career, reputation, and future earning potential. But now, former North Carolina federal public defender Caryn Devins Strickland is suing to change that for more than 31,000 federal judiciary employees nationwide.

From 2017 until her constructive discharge in 2019, Strickland was harassed and stalked by the first assistant, the second most powerful member of the Federal Defender Office (FDO) for the Western District of North Carolina. Colleagues described him as “lustful.” He singled her out for “shadowing” and training. In one email, entitled “Mas Dinero,” he explicitly told her he required “pay for stay” — quid pro quo sexual harassment.

Strickland confided in the federal defender, who told her to “work it out.” She then sought assistance from the judiciary’s Equal Employment Opportunity Office. They told her that FDO leadership was “from a generation that didn’t ‘get’ sexual harassment.” When the situation became untenable, she quit — a constructive discharge. After her departure, she learned employees were gossiping about her, alleging she “made up” the harassment in order to be transferred to another office. She has not been able to obtain employment comparable to her previous position in the FDO, as she cannot use her previous employer as a reference.

Strickland also participated in employee dispute resolution (EDR), the judiciary’s toothless excuse for internal redress. EDR is the internal courthouse dispute resolution plan. The Judicial Conference of the United States revised the Model EDR Plan in 2019 but, if you proceed from the U.S. Courts website to individual circuit pages, each circuit’s plan is slightly different.

The EDR Plan — rife with procedural inequities and flaws — would be a poor option if it were one of several options, as it is for Strickland’s government counterparts who work on the Hill or within the Executive Branch. For judiciary employees, EDR is their only option.

After experiencing various procedural inequities and injustices, and failing to achieve resolution of her sexual harassment claim, Strickland sued in 2020, raising constitutional claims because the judiciary is exempt from Title VII. In addition to arguing that she has a Fifth Amendment right to a workplace free from discrimination, she is also challenging the EDR Plan, arguing it lacks meaningful due process, is facially unfair, and was unfair as applied to her.

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Strickland’s claims were dismissed — and then partially revived — in 2022. Sadly, questions are still raised about whether we “believe” survivors of sexual harassment, despite the high cost associated with reporting harassment. But this is an important case that may finally force a #MeToo reckoning in the judiciary.

The judiciary continues to tout EDR — despite its many flaws and deficiencies — and opposes extending Title VII to itself, claiming the judiciary is an “exemplary workplace.” EDR is underutilized because law clerks and public defenders fear retaliation, something the judiciary refuses to address, even though every law clerk’s and public defender’s first set of questions are: Can I remain anonymous? Is the process confidential? And, will I be protected against retaliation? Sadly, the answers are no, probably not, and no.

Troublingly, the judiciary refuses to report data on employees’ use of the plan, precluding oversight and preventing outsiders from assessing its effectiveness. The judiciary has asserted concerns about “confidentiality” were they to release this data — a ludicrous assertion: other government entities report EDR data, which could easily be anonymized by circuit.

EDR has numerous problems. The judiciary’s insular insistence on defending the plan evidences a belief that judges are above the laws they interpret and a lack of understanding of the daily experience of being a law clerk. To spell it out for anyone who has not spent time in a judicial chambers or FDO:

  1. EDR is not impartial. Judges within the courthouse where the complainant law clerk and misbehaving judge work are tasked with investigating and potentially disciplining their colleagues, which they’re notoriously unwilling to do. In Strickland’s case, the federal defender, who was a party to the dispute, was also one of the decision-makers. When Strickland requested that he be disqualified, the judiciary refused, claiming they would have no one to negotiate on behalf of the FDO. This is a clear conflict of interest.

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  1. EDR is not standardized. Troublingly, every circuit handles EDR a bit differently, opening up the plan to abuses and inequities. Some judiciary officials may claim individual circuits best understand the “climate” of their courthouses, but it’s beyond time to facilitate a universal climate of safe workplaces. The EDR Plan as written leaves too much to the unilateral discretion of presiding judicial officers, who decide whether to allow discovery, hold a hearing, and call witnesses. In Strickland’s case, none of her witnesses were called. The EDR coordinator, circuit executive, and chief judge also signaled that they would not “micromanage” the federal defender and could not order a remedy if the federal defender resisted.
  1. EDR is completely implemented and executed by fellow judges, lacking neutral outside oversight. The insular nature means those enforcing the plan cannot recognize their own biases and blind spots.
  1. Complainants lack protection against retaliation by judges for participating in EDR. The judiciary refuses to meaningfully address employees’ concerns about retaliation. Judiciary employees do not use the EDR Plan because they fear retaliation. Strickland continues to experience retaliation for participating in EDR that precludes her from obtaining comparable employment.
  1. No monetary remedies are available through EDR. This is true even for those who are terminated (as I was) or who experience severe career repercussions, as Strickland did. Strickland is seeking front pay to remedy this.
  1. The only real “remedy” through EDR is reassignment to another judge’s chambers or FDO. Yet this depends on the judiciary’s capacity to reassign — a major “if” — since it requires a judge to take on an extra law clerk and budgetary sign off to authorize an additional law clerk salary. It may also necessitate the clerk moving to another locality for the remainder of the clerkship, which is not always feasible.
  1. Complainants need to hire attorneys to represent them. Law clerks should consult an attorney if they want to engage in EDR. They’ll be going up against a judge represented by counsel and appearing before a judge. Yet hiring an attorney when you are a mistreated (or recently terminated) judiciary employee is challenging and expensive. Employment attorneys are often unwilling to represent law clerks because no monetary remedies are available, and because they don’t want to go up against judges in the jurisdiction where they represent paying clients — fearing retaliation.
  1. The judiciary refuses to release data on employees’ use of the EDR Plan. Quantifying the scope of problems and trends is the first step toward crafting effective solutions and assessing whether EDR is actually effective. There are ways to anonymize and report this data. Refusing to do so is a red flag that the judiciary does not want anyone to know this information.
  1. The Plan lacks procedural due process as written — and, anecdotally, as applied to individual clerks. Employment attorneys who represent clerks in EDR have referred to the process as a “kangaroo court” that “lacks even the appearance of due process.” The insular nature of this overly and unnecessarily secretive process benefits those who abuse their power, and disadvantages clerks. Strickland’s experience is rife with due process violations.

If the court rules in Strickland’s favor, it could force the judiciary to revise the EDR Plan. The judiciary could revise the EDR Plan right now, without action by Congress — although congressional attention and judiciary committee hearings could also force change in the Third Branch.

Many beneficial changes to the EDR Plan are encompassed in the Judiciary Accountability Act, which Congress should pass this term to finally extend Title VII protections to law clerks and federal public defenders. Some of the most urgent revisions include:

  1. Enforcement of EDR should be removed from the judiciary’s chain of command. Neutral civil rights investigators should enforce the plan and oversee EDR complaints and hearings. Judges affirm the Code of Conduct for U.S. Judges, which highlights a commitment to impartiality and fair administration of justice. Continuing to defend a plan that evidences a clear lack of impartiality is contrary to their code of conduct.
  2. The EDR Plan should ensure actual due process for complainants. It should also be truly standardized so that all circuits follow the same rules without procedural asymmetries disadvantaging clerks seeking redress.
  3. EDR should be overseen by an outside entity. The judiciary has shown an inability to self-police in the absence of transparency and accountability. Outside oversight would ensure the plan is uniformly enforced and serves as effective redress for judiciary employees.
  4. Monetary remedies should be available through EDR. This could be a substitute for the monetary remedies available under Title VII of the Civil Rights Act and would recognize the significant monetary costs associated with mistreatment and early termination from employment, including reputational harm and a stunted career trajectory.
  5. The judiciary should enforce meaningful protection against retaliation. This could include creating a judiciary point of contact for law clerks who have utilized the EDR Plan to reach out to when they have job interviews, who can in turn remind judges that they should not retaliate against clerks. This point of contact should go a step further and reach out to potential employers once an interview has been scheduled to explain the situation, ask that those judges not be contacted for references, and advocate on the employee’s behalf.

Of course, if Title VII were extended to the judiciary, law clerks and public defenders would still appear before judges to adjudicate their claims, as Strickland is this month. Judges can be neutral and fair arbiters of disputes. Yet litigation guarantees due process for litigants that is not guaranteed through the EDR Plan.

Beyond this, litigation is conducted with much greater transparency than EDR — recognizing that, for example, we do not have cameras in the courtroom. The overwhelming secrecy of EDR, as well as the judiciary’s failure to standardize policies and enforce rules, disadvantages employees. Furthermore, employees should not have to give up their rights to work for the federal judiciary, considering the outsized influence of a clerkship on attorneys’ future career success and law schools’ overemphasis on clerking as necessary for career advancement.

The federal judiciary continues to assert ridiculous “separation of powers concerns” whenever anyone suggests the urgency of reform, even though their annual budget — a funding request that increases each year — is authorized by Congress, a co-equal branch of government that should have a vested interest in ensuring fair treatment for the judiciary employees whose salaries it authorizes Six years post-Kozinski, the judiciary refuses to recognize the scope of problems like gender discrimination, harassment, bullying, and retaliation — let alone accept any responsibility for correcting problematic behaviors in their ranks.

It is time for a #MeToo reckoning in the judiciary. The EDR Plan is fundamentally unfair and must be revised. No more urgent issue confronts the legal profession right now than ensuring safe workplaces for judiciary employees.

Few judiciary employees are brave enough to stand up and speak out against this unjust and biased internal process for handling sexual harassment claims. The time is now for a judiciary-wide reckoning and urgently needed congressional oversight: the livelihoods and well-being of more than 31,000 judiciary employees, and the future of the legal profession, depend on it.

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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