Working for Justice

Congress Should Pass the Judiciary Accountability Act

Posted September 15th, 2021 by Kate Mueting and James Hannaway in Employment Discrimination.

For years, Ninth Circuit judge Alex Kozinski sexually harassed his law clerks, repeatedly making inappropriate comments and sharing pornography in chambers.  He could act with impunity—and other judges have been able to do the same—because our nation’s anti-discrimination laws have left law clerks and most other judicial employees unprotected.   Because of a loophole in Title VII, there are more than 30,000 workers in the federal judiciary who cannot bring harassment or discrimination claims against their employer.

Congress should pass The Judiciary Accountability Act to close this loophole and make it illegal for federal judges to subject employees to discrimination and harassment, including sex discrimination and race discrimination and sexual harassment and racial harassment.

Federal judges are appointed for life by the President and confirmed by the Senate, and they hold substantially more power and influence than other courthouse employees.  These employees include law clerks, who typically serve one- or two-year terms very early in their careers.  Judges also have substantial influence of the careers of their clerks, which contributes to the power imbalance.  An American Bar Association article has noted that “[i]t is a well-known and chronicled aspect of clerking” that the relationship between judges and clerks can “survive[] deep into their respective careers.”  Workplaces with greater power imbalances have a higher risk for harassment, as the U.S. Equal Employment Opportunity Commission has recognized, in part because “[s]upervisors feel emboldened to exploit low-ranking employees.”  The EEOC has also recognized that those established in their career “may perceive themselves as exempt from workplace rules and immune from consequences of their misconduct.”

If passed, the law would allow employees subjected to discrimination and harassment to elect to bring their claims just like nearly every other employee in America. Like most of the private sector,[1] the other two branches of the federal government are generally subject to Title VII.[2] So too are state judges, who can be subject to suit under Title VII, state or municipal law, or Section 1983.[3] Thus, when Kings County Supreme Court justice David Schmidt “bragged about his sexual exploits with his mistress, strode shirtless around his chambers before trials, and fired his secretary when she rebuffed his sexual advances[,]” his secretary could bring suit to hold him accountable.  Federal judges like Alex Kozinski have not been subject to the same kind of accountability.

Unfortunately, many judges oppose the Judiciary Accountability Act.  Late last month, the Judicial Conference of the United States openly opposed the Act as too “intrusive” in light of internal measures that the judiciary has established to police itself.  While many of the judiciary’s measures are welcome improvements, it is baffling for the judiciary to assert that it should not be subjected to anti-discrimination laws because it is already doing enough.  Federal courts are necessary in large part because, in every other area of law and in every other workplace, internal checks and controls are insufficient at curbing unlawful behavior.  There is no indication that the measures that federal courts take are any more effective than measures being undertaken by private employers, which are already subject to anti-discrimination laws.  And of course, if the judiciary is sufficiently curbing discrimination and harassment, then the enforcement of laws prohibiting this conduct would not be overly intrusive.  Even if “intrusiveness” is a concern, state judges have long been amenable to suit for discrimination, yet they are just as able as their federal colleagues to deliberate and conduct business effectively.

There is no reason for those who interpret and apply our nation’s civil rights laws to be immune from them.  Congress should pass The Judiciary Accountability Act.

Footnotes

[1] Title VII applies to private employers with 15 or more employees.  42 U.S. Code § 2000e(b). Note that many state laws and other federal laws do not have this limitation.
[2] Congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3 (1995) (codified at 2 U.S.C. §§ 1301-1438); Equal Employment Opportunity Act of 1972,  Pub. L. No. 92-261, 86 Stat. 103 (1972) (codified at 42 U.S.C. §§ 2000e-2000e-8) (expanding Title VII to federal employees).
[3] Forrester v. White, 484 U.S. 219, 229 (1988) (holding that state judges are amenable to suit under Section 1983 for gender discrimination); Spence v. New Jersey, No. 119CV21490NLHKMW, 2021 WL 1345872 (D.N.J. Apr. 12, 2021) (dismissing some but not all of law clerk’s claims against judge under Title VII and New Jersey Law Against Discrimination); Marquez v. Hoffman, No. 18-CV-7315 (ALC), 2021 WL 1226981 (S.D.N.Y. Mar. 31, 2021) (dismissing some but not all of law clerk’s claims against judge under Section 1983, New York State Human Rights Law and New York City Human Rights Law).

Kate Mueting is a Partner in the Washington, DC office of Sanford Heisler Sharp. Ms. Mueting is responsible for managing much of the KPMG gender discrimination litigation and also represents employees in other individual and class discrimination and overtime cases.
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James Hannaway is an Associate in the Washington, DC office of Sanford Heisler Sharp, LLP.
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