Resources for Law Clerks Facing Mistreatment

Existing options within the federal judiciary to address wrongful conduct by judges are currently limited to Employee Dispute Resolution (EDR) and formal judicial complaints under the Judicial Conduct and Disability Act. State court clerks who experience mistreatment should contact their courthouse’s human resources office for internal workplace dispute resolution. State judicial conduct commissions investigate formal complaints against state court judges. These options provide insufficient redress for mistreated clerks. Congress should extend Title VII protections to federal judiciary employees, including law clerks. 

What does it mean to file a complaint?

There are two types of complaint processes within the federal judiciary—internal workplace dispute resolution under the EDR Plan and a formal judicial complaint under the Judicial Conduct and Disability Act. EDR is intended to assists law clerks and other judiciary employees. The Judicial Conduct and Disability Act is the process by which judges may be disciplined.

Employee Dispute Resolution (EDR)

Employee Dispute Resolution (EDR) is the internal courthouse dispute resolution plan. The Judicial Conference of the United States released an updated Model EDR Plan in 2019, but each circuit’s and courthouse’s plans are slightly different.

A law clerk has three options under EDR to address wrongful conduct: informal advice, assisted resolution (mediation), or a formal complaint. (Wrongful conduct is discrimination; sexual, racial, or other harassment; abusive conduct; and retaliation.) A formal complaint must be filed within 180 days of the clerk experiencing (or becoming aware of) the wrongful conduct. After the clerk files their complaint with the EDR coordinator, the chief judge of the courthouse appoints a presiding judicial officer (another judge from the courthouse) to oversee the process. The respondent judge has 30 days to file a response. Then, the presiding judicial officer conducts an investigation, potentially affords the parties discovery opportunities “as necessary and appropriate,” and issues a decision without holding a hearing or schedules a hearing within 90 days of filing a complaint. The presiding judicial officer must issue a decision within 60 days of the hearing. Available remedies include reinstatement and reassignment. Monetary remedies are not available. Either party may appeal within 30 days of the decision.

Judicial Conduct and Disability Act

Additionally, a law clerk can file a Judicial Conduct and Disability Act complaint, pursuant to 28 USC §§ 351-364, against the judge who mistreated them. This is the formal judicial complaint process by which judges may be investigated and disciplined. Law clerks can allege abusive or harassing behavior, discrimination, or retaliation. The circuit’s chief judge reviews the complaint. They can either dismiss it or conclude it after a limited inquiry, in which case, they must issue reasons for the dismissal, and both parties may appeal. Or, the chief judge can appoint a special committee of judges to review the complaint. The special committee may hold a hearing, after which they issue a report. Either party may petition for review. Remedial actions for misbehaving judges include censure or reprimand; ordering that no new cases be assigned to the judge; or requesting that the judge retire voluntarily. 

What should a law clerk do if they are mistreated by a judge?

The decision about how and when to address wrongful conduct by a judge is deeply personal. LAP works every day to combat the culture of silence in the legal community that discourages law clerk reporting. We are replacing this with a culture of open and honest dialogue about the full range of clerkship experiences. Stopping the cycle of mistreatment starts with encouraging law clerks to share their experiences. Every law clerk should bring their full self to work. No one deserves to be mistreated, nor should any law clerk endure this type of treatment. Ultimately, LAP aims to empower the next generation of attorneys to stand up for themselves and demand safer workplaces. LAP will also continue to informally connect law clerks seeking assistance with attorneys who can help.