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Federal courts drop survey question about workplace misconduct, but not before judges’ staffers said they’d witnessed such problems

The Wilkie D. Ferguson Jr. U.S. Courthouse in Miami. (Joe Raedle/Getty Images)

Leaders of the federal judiciary have had to backtrack after nearly three dozen law clerks and judge assistants affirmed in an informal survey that they had “witnessed wrongful conduct in the workplace.”

The Administrative Office of the U.S. Courts said officials removed the question from a training registration form, sent last week to thousands of judiciary staffers who work for federal judges, but not before 34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.

“This was an unfortunate administrative error. No more — no less,” David Sellers, a spokesman for the office, said in an email, adding that the question was too broad to elicit any meaningful information and that the number of responses was too small to reveal a trend. Some, Sellers said, referred to situations before employment with the federal court system.

The judiciary wants employees to “feel comfortable reporting any instances of wrongful conduct,” he said. “But a registration form was not the proper place to ask that type of question.”

Concerns about how the judiciary handles allegations of sexual harassment, discrimination and other misconduct in courthouses have for the past several years been part of Chief Justice John G. Roberts Jr.’s annual report on the federal judiciary. In his 2021 year-end report, Roberts acknowledged ongoing scrutiny from Congress but said the independent judicial branch is best positioned to resolve workplace complaints.

The judiciary has put in place a robust reporting system, expanded the Office of Judicial Integrity and hired workplace relations directors in each of the federal circuits, Roberts said. He noted that a previous internal study “recognized the seriousness of several high-profile incidents, but found that inappropriate workplace conduct is not pervasive within the Judiciary.”

Roberts says federal judiciary has some issues but doesn’t need congressional intervention

Advocates for change said the employees’ responses show that problems are more widespread than the judiciary has acknowledged, and they questioned the judiciary’s ability to police itself.

“The judiciary cannot adequately assess whether misconduct is pervasive without robust and retrospective reviews, including questions tailored to assess the nature and frequency of such conduct,” Deeva Shah, an attorney with Keker, Van Nest & Peters who represents more than 20 current and former federal judiciary employees, said in an email. “Although these issues are present in many workplaces, the judiciary is uniquely insulated from basic workplace protections and continues to insist on self-policing, which may explain these numbers and the lack of formal reports filed.”

The federal court system’s 30,000 employees are not covered by federal laws that prohibit workplace discrimination and retaliation. Instead, the separate branch of government has its own protection policies.

A congressional hearing is planned for February to review legislation the judiciary has opposed that would ensure anti-discrimination rights for employees, establish whistleblower protections and create a special counsel to investigate and report on misconduct complaints.

Rep. Norma J. Torres (D-Calif.), a sponsor of the legislation, said she was not surprised by the high response rate to the question “given the secrecy around misconduct in the judiciary.”

“It is unfair to these employees to say that the fox is guarding the henhouse,” Torres said. “We need to set up a system where judiciary employees feel confident that they will be protected and that no one is above the law, and clearly we have to acknowledge there is a pervasive problem. Congress is not going to stand by and not do anything about it.”

Comments on body parts. Questions about pregnancy. Court filing alleges ongoing harassment in judiciary.

Roberts declined to comment through a court spokesperson.

The chief justice proposed overhauling the reporting system after sexual misconduct claims against an appeals court judge, Alex Kozinski. The judge stepped down from the U.S. Court of Appeals for the 9th Circuit after The Washington Post reported in 2017 that 15 women had accused him of a range of misconduct.

As part of the judiciary’s response, its administrative office is holding training sessions for the people who work inside judges’ chambers — often an insular environment in which individual judges wield tremendous power and influence over their employees’ careers.

Last week, the administrative office invited all law clerks, paralegals, judge secretaries and judicial assistants to attend an online training session titled “Workplace Conduct Protections & Employment Dispute Resolution” to “explore employment rights in the federal judiciary, the avenues for reporting misconduct and obtaining guidance, the EDR process, and options for resolution.”

The training, scheduled for Jan. 25, is for those who work in judges’ chambers — about 6,500 employees throughout the country.

A few hours after the invitation and registration link were distributed on Jan. 5, judicial integrity officer Michael Henry had the query removed. Henry was unaware anyone had responded or how they had responded until after the removal, said Sellers, the court spokesman.

This week, Henry began contacting the 34 individuals who responded affirmatively to the question to provide guidance on resources related to workplace protections.

The court’s administrative office declined to provide details about the locations or job titles of the employees who answered yes.

Torres said she was concerned to learn that the judicial integrity officer had contacted the employees, saying such a step could be viewed as an “intimidation tactic.”

Sellers said Henry had assured respondents that their “confidentiality would be preserved.”

“The Judiciary has multiple well-established avenues for employees to report,” Sellers said. “They include safe, confidential, formal, informal, and even anonymous methods for Judiciary employees to alert us to matters of concern.”

Glenn Fine, a former Justice Department inspector general, said this week that despite legitimate concerns about maintaining the courts’ independence, there should be an inspector general for the federal judiciary.

That person could help “identify problems before they arise, and ensure that any allegations of misconduct are investigated effectively and with credibility,” he wrote in a Washington Post opinion piece. “This could be accomplished without compromising the judiciary’s necessary independence — and, in the process, enhance public trust in the institution.”