Stacy N. Cammarano is a sexual harassment attorney at Katz, Marshall & Banks, LLP, and a former federal law clerk.
Federal judges regularly preside over sexual harassment cases. But due to a quirk in the law, sexual harassment victims who work for the federal court system cannot file suit to complain about mistreatment in their workplace. Their only recourse is an internal complaint process that offers victims no remedy for misconduct and only the remote prospect of disciplinary action against a judge who harasses them.
The problem of sexual harassment in the federal courts broke into the open last year, when 15 women came forward with complaints of sexual harassment and other misconduct against federal appeals court Judge Alex Kozinski. In response to the allegations, Kozinski retired, and Chief Justice John G. Roberts Jr. created a working group to develop recommendations, due sometime this month, about how to handle sexual harassment cases in federal courts.
Unfortunately, reform efforts are doomed to fail until the law that protects most employees from sexual harassment is expanded to apply to the judiciary. Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sex, but it does not apply to the 30,000 employees who work for the federal court system. Though Congress, which originally exempted itself from the law, passed legislation in 1995 that covers congressional employees, it has not done so for the judiciary.
Federal judges’ positions further insulate jurists from accountability. They are appointed for life, and only Congress can remove them. When they retire, they receive their full salaries for the rest of their lives. Although 15 women eventually spoke out about Kozinski’s misconduct, and the U.S. Court of Appeals for the 9th Circuit launched an inquiry, Kozinski retired before the internal investigation progressed. Even if the investigation had concluded and found the judge at fault, no relief would have been available for his victims. And unless he was impeached, he would keep his salary.
The lack of a remedy wasn’t the only reason that one of Kozinski’s original accusers, Heidi Bond, kept silent for years. The power and prestige of federal judges create a dangerous power dynamic that virtually ensures law clerks’ silence. Across the country, law school counselors, eager to boost their schools’ statistics and maintain relationships with judges, tell prospective law clerks that they are lucky to receive any clerkship offer and that they must put up with whatever “quirks” a judge has.
Meanwhile, judges have the power to make or break careers. Obtaining a positive reference from a judge is an important goal for any law clerk, and it was particularly vital for Bond, as Kozinski often groomed his clerks for Supreme Court clerkships.
The allegations against Kozinski have prompted the judiciary to examine its methods for handling sexual harassment complaints. Roberts’s working group has emphasized that employees need to be made more aware of existing remedies. It recently explained to Congress that employees who have been sexually harassed can file judicial misconduct complaints under the Judicial Conduct and Disability Act, a process that allows a circuit’s chief judge to seek input from the accused judge before convening a judicial council to investigate. This procedure is ineffective because it is not confidential and can jeopardize the employee’s career. It also does not provide any remedy to the employee.
The working group also explained that judicial employees can file grievances under the employment dispute resolution program for their respective circuits. Such programs are not standardized across the judiciary and, in some circuits, they do not apply to law clerks.
The working group’s effort to bring awareness to these existing mechanisms merely highlights their inadequacy and demonstrates why Bond did not avail herself of them. In the past 20 years, only one judge has been impeached on charges of sexual misconduct, and the handful of other judges who have been investigated under the Judicial Conduct and Disability Act have resigned, nearly all retaining their salaries for life. These mechanisms do not deter judges, and they do not compensate employees for their suffering or the damage to their careers.
As the #MeToo movement progresses, we must consider unique challenges within each industry. When it comes to the judiciary, only Congress can create the remedies necessary to protect employees from sexual harassment. It’s time to make the judiciary subject to the same laws it enforces for everyone else.
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