Federal Judiciary’s 2023 Workplace Report Fails to Meet the Moment
Thursday, November 21, 2024
For Immediate Release
Contact: Aliza Shatzman, 267-481-2095, aliza.shatzman@legalaccountabilityproject.org
Federal Judiciary’s 2023 Workplace Report Fails to Meet the Moment
The Administrative Office of the U.S. Courts’ (AO) 2023 Report on the Judiciary Workplace is just the latest evidence of the federal judiciary's failure to acknowledge the scope and severity of misconduct in their ranks and their unwillingness to engage in the hard work of implementing meaningful solutions.
This Report further reinforces the historically low public trust and confidence in the federal courts. Judges–public servants who interpret laws having national impact, and who make decisions affecting litigants’ lives, livelihoods, and liberty–should be held to the highest ethical standards, not the lowest. Yet the federal government does not hold judges to basic standards of human decency or workplace conduct, as federal judges themselves are exempt from the federal anti-discrimination laws they interpret, and more than 30,000 employees of the federal courts lack basic workplace protections.
Discrimination, harassment, abusive conduct, and retaliation continue to occur in every federal circuit, every year. Yet law clerks tell The Legal Accountability Project often that they have not and would not report misconduct within the federal courts under the Employee Dispute Resolution (EDR) Plan, let alone in a Judicial Conduct and Disability (JC&D) Act complaint, because they do not believe their concerns will be taken seriously and robustly investigated, and because the federal judiciary does not legally protect them against retaliation by their life-tenured, unaccountable bosses. The AO either does not know–or does not care to know–that misconduct persists unabated, given their limited attempts to address it. Window dressing changes, like the ones enumerated in this Report, will not solve the problem.
There is no substitute for extending federal anti-discrimination protections, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Rehabilitation Act, among others, to more than 30,000 exempt federal judiciary employees. Law clerks, the public servants who support the daily functioning of our courts, deserve basic workplace protections. And the anti-discrimination laws that protect most other workers, should protect them, too.
As an organization that advocates for law clerks, LAP encourages clerks to use the judiciary reporting channels available to them. Yet with limited remedies available under EDR, no legal protection against retaliation, and, sadly, often no legal counsel to assist them, it is difficult to convince law clerks to stick their necks out and blow the whistle on misconduct. Law clerks face enormous headwinds in reporting misconduct, and the federal judiciary does not make the process any easier.
What judiciary employees, particularly law clerks, want is for (1) judges to stop mistreating employees and (2) prospective clerks to be properly warned about unsafe judiciary work environments. Yet due to the opacity and secrecy of judiciary processes, which are stacked against clerks; lack of enforceable disciplinary mechanisms; and dearth of avenues for remedial training or corrective action for judges who mistreat clerks, to ensure the behavior does not recur, existing judiciary policies and processes do not and will not accomplish these basic goals.
To highlight just one troubling statistic in the Report: between 2021 (when the AO began implementing the EDR Plan in earnest and collecting some limited data) and 2023, of the 78 EDR matters initiated by court employees during that period, only 9% were initiated by law clerks. In fact, the vast majority of matters were initiated by clerks' office employees (permanent staff). While LAP does not discount the importance of ensuring that permanent courthouse staff can address workplace issues, a close reading of this Report actually highlights limited use of the EDR process by term judicial law clerks, a negligible number of complaints filed, and very little progress toward fostering a culture of reporting. Law clerks deserve better.
As LAP has said before, a low number of workplace complaints does not suggest that a workplace is safe. Rather, it suggests that internal reporting mechanisms are ineffective. Significant evidence - including two reports about significant flaws in the EDR Plan, released this summer by the Federal Judicial Center and National Academy for Public Administration, and by the U.S. Government Accountability Office, suggest that judiciary internal complaint processes are broken. For the AO to suggest otherwise in media reports in conjunction with this Report’s release, further underscores their insensitivity to the scope of the problem.
The federal judiciary–a government employer–continues to fall short of basic standards of workplace conduct and human decency. This Report only reinforces the federal judiciary’s unwillingness or inability to tackle these problems with the urgency and sensitivity they deserve. LAP urges them to do better, and we are happy to work with them, should they call on LAP for advice.
It is the height of injustice that federal law clerks and public defenders–the public servants who support the daily functioning of our courts and judicial system–lack basic workplace protections. Judiciary employees deserve better from the federal government.