In
most
workplaces,
if
you
are
sexually
harassed,
your
first
course
of
action
is
to
seek
assistance
from
Human
Resources.
If
that
fails,
you
can
assert
your
right
to
a
safe
workplace,
free
from
discrimination
and
harassment,
under
Title
VII
of
the
Civil
Rights
Act
of
1964.
But
the
antidiscrimination
laws
that
apply
to
the
rest
of
us,
do
not
apply
to
more
than
30,000
employees
of
the
federal
judiciary,
including
law
clerks
and
public
defenders.
The
judiciary
would
prefer
you
not
dwell
on
that,
since
it
might
give
some
applicants
pause
before
applying
for
federal
clerkships.
This
week,
the
federal
judiciary’s
Office
of
Judicial
Integrity
(OJI)
will
host
their
now-annual
law
clerk
program
about
workplace
protections
for
federal
judiciary
employees.
OJI
is
an
office
within
the
Administrative
Office
of
the
U.S.
Courts
(AO)
created
in
the
wake
of
former
judge
Alex
Kozinski’s
resignation.
This
could
be
a
short
program,
because
mistreated
clerks
have
a
very
short
list
of
options
available.
The
TL;DR?
The
judiciary’s
“alternative”
to
federal
antidiscrimination
protections,
Employee
Dispute
Resolution
(EDR),
lacks
standardization,
meaningful
remedies,
uniform
enforcement,
transparency,
and
metrics
for
success.
It
is
underutilized
because
it
is
ineffective,
considering
the
judiciary
has
done
nothing
to
ensure
that
clerks
who
file
complaints
are
protected
against
retaliation
by
their
powerful
superiors.
In
light
of
what
will
likely
be
a
fact-light
and
misrepresentation-heavy
presentation,
it’s
important
to
remind
newly
minted
clerks
about
their
very
limited
options
if
they
are
mistreated
by
their
life-tenured,
unaccountable
bosses.
Much
has
changed
since
last
year’s
program.
Many
more
clerks
are
now
aware
of
the
limited
redress
available
to
them,
thanks
to
my
nonprofit,
The
Legal
Accountability
Project’s
(LAP),
law
school
programming,
thought
leadership,
robust
social
media
presence,
and
national
resources.
At
nearly
all
of
the
more
than
50
LAP
events
I’ve
done
over
the
past
two
years,
I’ve
discussed
why
EDR
and
the
Judicial
Conduct
&
Disability
(“JC&D”)
Act
fall
short
of
basic
workplace
standards.
What
else
is
different?
In
July,
former
Alaska
federal
judge
Joshua
Kindred
resigned
in
scandal,
after
a
20-month
Judicial
Council
investigation
revealed
appalling
abuse
and
sexual
harassment
in
his
chambers.
Yet
this
was
not
a
total
victory:
during
the
lengthy
investigation,
the
judiciary
did
nothing
to
protect
Kindred’s
clerks
from
continued
mistreatment,
or
from
retaliation
for
participating
in
the
investigation,
such
as
reassigning
them
to
a
different
judge.
Then,
back-to-back
reports
were
published
by
the
Federal
Judicial
Center
and
National
Academy
of
Public
Administration,
and
by
the
U.S.
Government
Accountability
Office,
underscoring
significant
flaws
in
the
EDR
Plan.
These
include
a
lack
of
standardization,
transparency,
data
collection
and
reporting,
metrics
for
success,
and
training
for
judiciary
points
of
contact,
including
EDR
Coordinators
and
Directors
of
Workplace
Relations
(DWRs)
tasked
with
enforcing
the
EDR
Plan.
Then,
in
September,
Congress
reintroduced
the
Judiciary
Accountability
Act
(JAA),
legislation
that
will
finally
extend
Title
VII
and
whistleblower
retaliation
protections
to
more
than
30,000
federal
judiciary
employees.
The
JAA
will
also
standardize
EDR
plans;
revise
the
judicial
complaint
process;
create
multiple
confidential
reporting
channels
for
clerks;
and
require
the
judiciary
to
collect
and
report
annual
data
on
demographics
of
clerk
hiring,
a
workplace
culture
assessment,
outcomes
of
judicial
misconduct
complaints,
and
metrics
on
employees’
use
of
the
EDR
Plan
—
since
quantifying
the
scope
of
these
problems
is
the
first
step
toward
crafting
effective
solutions.
And,
of
course,
thousands
of
students
and
now-clerks
have
benefited
from
LAP’s
Centralized
Clerkships
Database
—
“Glassdoor
for
Judges”—a
repository
of
more
than
1,400
candid
reviews
about
nearly
1,000
federal
and
state
judges
that
pulls
back
the
curtain
for
applicants
on
judges’
management
style,
chambers
culture,
and
workplace
conduct.
Students,
and
clerks
who
are
applying
for
another
clerkship,
do
not
need
to
sit
through
a
lecture
on
hollow
workplace
“protections.”
They
can
log
into
LAP’s
database
right
now
and
find
out
which
judges
create
positive
work
environments,
and
which
ones
do
not.
Sadly,
the
federal
judiciary
—
particularly
the
AO
and
the
Judicial
Conference,
but
some
individual
judges,
too
—
are
unmoved
by
these
developments
and
by
the
increasingly
vocal
calls
for
accountability
and
transparency
in
their
ranks.
They
have
made
no
changes
in
the
wake
of
Kindred’s
resignation,
nor
following
these
EDR
reports
—
in
fact,
they
stonewalled
investigators
trying
to
collect
information
for
the
reports.
If
this
OJI
program
is
anything
like
last
year’s,
they
will
cover
what
they’ve
referred
to
as
“The
4
P’s:
People,
Policies,
Process,
and
Procedures.”
So,
let’s
break
them
down.
People
The
federal
judiciary
is
not
sending
their
best
people
to
prevent
judges
from
sexually
harassing
law
clerks.
The
Office
of
Judicial
Integrity
appears
to
be
one
person.
An
office
ostensibly
tasked
with
overseeing
the
entire
federal
judiciary’s
law
clerk
issues
in
94
district
courts
and
13
federal
circuit
courts,
for
more
than
1,000
federal
judges,
each
of
whom
supervise
between
two
and
four
law
clerks
annually
(several
thousand
clerks
total),
should
be
more
robustly
staffed.
Most
federal
circuits
have
a
Director
of
Workplace
Relations
(the
8th
and
10th
circuits
share
one,
though
there
are
enough
issues
that
every
circuit
needs
its
own
DWR).
And
every
court
has
at
least
one
EDR
coordinator.
Some
mistreated
clerks
turn
to
circuit
DWR
for
“informal
advice,”
the
most-utilized
aspect
of
the
EDR
Plan.
Unfortunately,
DWRs
and
EDR
coordinators
do
not
possess
the
necessary
formal
training
on
human
resources,
employee
workplace
issues,
or
antidiscrimination
law,
nor
are
they
required
to
be
licensed
attorneys,
even
though
they
advise
clerks
on
legal
issues.
I’ve
heard
from
clerks
that
judiciary
points
of
contact
dissuaded
them
from
filing
complaints
against
judges,
advising
that
their
allegations
did
not
rise
to
the
level
of
abusive
conduct
or
that
there
were
not
enough
co-clerk
complainants
for
them
to
be
successful,
even
though
they
are
not
qualified
to
make
these
determinations.
Policies
A
mistreated
clerk
can
file
an
EDR
complaint,
JC&D
Act
complaint,
or
both.
EDR
is
a
wholly
internal
dispute
resolution
mechanism
that
allegedly
offers
a
modicum
of
redress
for
clerks,
whereas
the
JC&D
Act
is
the
disciplinary
process
for
judges
who
engage
in
misconduct.
EDR
would
be
a
toothless,
sorry
excuse
for
an
option
if
it
were
one
of
several
options
available.
For
judiciary
employees,
this
is
their
only
option.
EDR
has
been
described
by
attorneys
who
represented
clerks
in
the
process
as
a
“kangaroo
court”
that
“lacks
even
the
appearance
of
impartiality
or
due
process.”
That’s
why
former
federal
public
defender
Caryn
Devins
Strickland
is
suing
the
federal
judiciary
right
now
for
mishandling
her
sexual
harassment
complaint,
alleging
the
EDR
Plan
violates
her
due
process
rights
and
is
both
facially
unfair
and
unfair
as
applied
to
her.
Why
is
EDR
such
a
sham
process?
First,
the
only
available
remedy,
in
reality,
is
reassignment
to
a
different
judge.
Unlike
a
Title
VII
complaint,
no
monetary
remedies
are
available
through
EDR,
even
for
clerks
who
were
terminated
and
struggle
to
find
new
employment.
Second,
fellow
judges
in
the
courthouse
where
the
mistreated
clerk
and
respondent
judge
work
preside
over
EDR.
Yet
judges
are
unable
or
unwilling
to
impartially
judge
their
colleagues’
misconduct.
Third,
it’s
a
byzantine
process.
Far
too
little
is
put
in
writing,
which
is
almost
certainly
by
design,
considering
how
much
the
judiciary
enjoys
expounding
in
writing.
Too
much
is
left
to
the
discretion
of
individual
presiding
judicial
officers
(the
judge’s
colleagues).
And
every
circuit’s
plan
is
a
bit
different.
As
if
this
weren’t
bad
enough,
only
26%
of
U.S.
courts’
websites
provide
all
necessary
information
about
workplace
conduct,
and
11%
contain
no
workplace
conduct
information
at
all,
meaning
employees
are
not
properly
informed
of
their
rights.
Importantly,
clerks
engaging
in
EDR
should
hire
attorneys
to
assist.
Clerks
are
not
employment
law
experts.
Yet
clerks
and
public
defenders
struggle
to
find
legal
representation
because
most
attorneys
in
their
jurisdictions
are
“conflicted
out,”
because
they
do
not
want
to
go
up
against
judges
in
the
jurisdiction
where
they
practice.
Clerks
are
young,
recent
law
graduates
in
their
first
legal
job.
Yet
the
judiciary
puts
the
onus
on
them
to
figure
out
their
rights
and
how
to
enforce
them,
forcing
a
mistreated
clerk
to
play
the
role
of
civil
rights
investigator
and
employment
counselor.
If
Title
VII
applied
to
the
judiciary,
the
onus
would
be
on
the
employer
to
ensure
employees’
rights
are
protected.
If
the
judiciary
actually
wanted
EDR
to
work
for
clerks
—
and
wanted
clerks
to
utilize
the
plan
—
they
would
provide
them
with
legal
counsel.
They
would
also
incorporate
monetary
remedies
into
EDR,
so
employment
attorneys
could
represent
clerks
on
a
contingency
fee
basis,
and
at
least
get
paid
if
successful.
A
clerk
can
also
file
a
JC&D
Act
complaint.
However,
a
negligible
number
of
complaints
(typically
fewer
than
10
annually)
are
filed,
because
clerks
are
not
legally
protected
against
retaliation.
If
the
judiciary
wanted
these
processes
to
work
—
for
clerks
to
file
complaints,
and
to
root
out
misconduct
—
they
would
support
the
JAA,
which
would
extend
whistleblower
protections
against
retaliation
and
revise
the
EDR
Plan.
The
AO
and
Judicial
Conference
oppose
the
JAA,
apparently
signaling
a
belief
that
judges
are
above
the
laws
they
interpret.
Processes
And
Procedures
A
process
that
relies
on
subordinates
—
fresh-out-of-law-school
clerks,
in
their
first
legal
jobs,
totally
dependent
on
judges
for
references
and
career
advancement
—
to
report
on
their
life-tenured,
powerful
superiors,
does
not
and
will
not
work,
unless
clerks
are
legally
protected
against
retaliation
under
Title
VII.
Yet
the
judiciary
refuses
to
even
collect
and
report
data,
publicly
and
to
Congress,
on
employees’
use
of
the
EDR
Plan.
So,
we
can
rely
only
on
anecdotal
data
provided
to
LAP
about
the
EDR
Plan.
The
landscape
is
bleak.
Judiciary
points
of
contact
are
described
as
“useless”
and
“unsympathetic”
to
clerk
concerns.
Clerks
tell
me
they
have
not
and
would
not
report
misconduct
to
the
federal
judiciary
because
they
believe
their
concerns
will
not
be
taken
seriously
nor
meaningfully
resolved
in
a
way
that
protects
them
from
retaliation
and
holds
their
abusive
bosses
accountable.
When
the
stakes
are
high,
and
the
likelihood
of
success
is
low,
clerks
wonder,
why
stick
their
necks
out?
Protections
Perhaps
the
AO
intended
to
lump
a
fifth
“P”
—
protections
—
into
one
of
these
categories.
What
workplace
protections
exist
for
clerks?
None.
The
federal
judiciary
is
exempt
from
Title
VII
of
the
Civil
Rights
Act,
as
well
as
the
Americans
with
Disabilities
Act
(ADA),
Rehabilitation
Act,
and
Age
Discrimination
Act.
If
you
are
harassed,
discriminated
against,
wrongfully
terminated,
or
retaliated
against
by
a
federal
judge,
you
cannot
sue
and
seek
damages
for
harms
done
to
your
career,
reputation,
and
future
earning
potential.
In
practice,
judges
can
refuse
to
hire
disabled
clerks,
refuse
to
accommodate
their
disabilities,
or
fire
them
rather
than
accommodate
them.
Judges
can
fire
clerks
without
cause.
They
can
give
retaliatory
negative
references
if
clerks
speak
up
about
mistreatment.
They
can
derail
clerks’
careers.
All
with
impunity.
Strangely,
sometimes
the
judiciary
suggests
that
Title
VII
protections
might
apply
to
them.
Here
is
a
direct
quote
from
one
of
last
year’s
OJI
program
slides:
“Judiciary
policy
protects
employees
(including
law
clerks)
from
conduct
that
would
violate
the
following
federal
laws:Title
VII
of
the
Civil
Rights
Act
of
1964Age
Discrimination
in
Employment
ActAmericans
With
Disabilities
ActFamily
and
Medical
Leave
Act…”
What
does
this
mean?
This
obfuscation
is
by
design.
But
this
is
not
the
first
time
the
judiciary
asserted
Title
VII
already
applies
to
them:
in
2022
congressional
testimony,
the
judiciary
co-chairs
of
the
Workplace
Conduct
Working
Group
made
a
similar
assertion
to
signal
opposition
to
the
JAA.
If
the
lack
of
P’s
—
policy,
protection,
process,
and
procedure
—
sounds
dire,
it
should.
I
have
spent
the
past
several
years
attempting
to
engage
with
the
federal
judiciary,
using
both
carrots
and
sticks.
I
have
also
invested
hundreds
of
hours
counseling
clerks
on
their
limited
options
for
redress;
and
have
reviewed
thousands
of
clerkship
experience
surveys
from
clerks
nationwide.
Misconduct
in
the
federal
judiciary
—
and
their
disinterest,
or
lack
of
urgency,
in
addressing
it
—
is
a
five-alarm
fire.
We
have
seen
nothing
but
window-dressing
changes
to
court
policies
over
the
past
decade.
We
owe
it
to
the
next
generation
of
attorneys
to
be
honest
about
challenges
clerks
face.
To
say
anything
less
would
be
a
disservice
to
the
thousands
of
eager
recent
graduates
embarking
on
careers
within
the
federal
judiciary,
as
well
as
to
the
thousands
of
law
students
applying
for
these
prestigious
positions
without
informed
consent
about
the
work
environment.
Policies
that
are
not
enforceable
—
or,
not
enforced
—
are
meaningless.
The
judiciary
leans
heavily
on
good
faith,
touting
codes
of
conduct
for
judges
and
clerks
that
are
little
more
than
suggested
conduct.
Yet
judges
are
almost
never
held
accountable.
Clerks
rarely
file
complaints.
Complaints
are
rarely
investigated.
Judges
are
rarely
disciplined.
Even
then,
remedial
measures
are
“voluntary”
and
the
judiciary
makes
every
effort
to
shield
judges
from
accountability.
In
light
of
this,
here
are
some
questions
I
would
ask
OJI
at
this
presentation:
-
How
are
clerks
who
file
complaints
protected
against
retaliation?
Can
you
provide
specific
examples
about
how
a
clerk
is
protected
when
applying
for
post-clerkship
jobs
where
the
judge
might
be
contacted
as
a
reference? -
How
many
clerks
in
my
circuit
used
the
EDR
Plan
last
year?
How
many
were
successfully
reassigned?
What
are
the
most
common
outcomes
in
EDR?
The
judiciary
seems
to
believe
retaliation
does
not
happen
(have
they
met
me?),
so
they
probably
won’t
answer
Question
1.
And
since
they
allegedly
does
not
keep
track
of
EDR
data
and,
to
the
extent
they
do,
claim
they
cannot
disclose
anonymized
trends
while
protecting
clerk
confidentiality,
they’ll
probably
evade
Question
2.
There
has
never
been
a
more
important
time
for
the
federal
judiciary
to
take
these
issues
seriously.
Yet
by
stonewalling
investigators
and
Congress,
continuing
to
tout
a
dispute
resolution
process
that
is
clearly
ineffective
and
has
engendered
a
high-profile
lawsuit,
and
opposing
reform
efforts,
they
signal
total
disregard
for
the
welfare
of
clerks.
It’s
the
height
of
injustice
that
law
clerks,
the
public
servants
who
support
the
daily
functioning
of
our
courts,
lack
basic
workplace
protections.
That
should
be
key
the
takeaway
from
any
federal
judiciary
workplace
conduct
presentation.
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.
Chris
Olga
