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Protecting Law Clerks from Harassment

Aliza Shatzman

Protecting Law Clerks from Harassment

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Since I began speaking publicly about my experience with gender discrimination, harassment, and retaliation during and after my DC Superior Court clerkship, I am often asked what advice I would give to law clerks facing mistreatment. As the president and co-founder of The Legal Accountability Project, a nonprofit that ensures that law clerks have positive clerkship experiences while extending support and resources to those who do not, I often think about necessary reforms to federal judiciary processes for addressing wrongful conduct—Employee Dispute Resolution (EDR) and the Judicial Conduct and Disability Act. These options provide insufficient redress for mistreated clerks.

Congress should pass the Judiciary Accountability Act (JAA) (HR 4827/S. 2553), extending Title VII protections to judiciary employees, including law clerks. However, as a new class of law clerks embarks on clerkships in courthouses across the country this fall, new attorneys must understand their options.

Advice for law clerks facing workplace mistreatment

You are not alone. Judicial misconduct is pervasive and unaddressed in the federal courts. Do not minimize your experience. Whatever you are facing—yelling, dismissive comments, bullying, gender-based harassment, sexual harassment, threats, retaliation—however occasional or frequent, if it feels wrong, it is wrong. Judges should act as if they are above reproach in their day-to-day dealings with clerks. We should hold the most powerful members of our profession to the highest ethical standards, not the lowest.

Much ink is spilled each clerkship application cycle about the best circumstances: when judges become lifelong mentors, supporting clerks throughout their careers. Few former clerks are willing to speak openly about the worst circumstances. A judicial chambers is a workplace particularly conducive to harassment because of both the enormous power disparity between judge and clerk, as well as the structure of a judicial chambers—several law clerks, perhaps a judicial assistant, and a judge, working long hours in stressful circumstances behind locked doors, with no outside oversight over judges’ dealings with clerks. When a judge mistreats their employees, it is a statement about their poor character, not the clerk’s.

What do we do about judicial mistreatment?

Document everything. Take notes. Save emails. Serve as your own investigator.

Tell someone. Confide in people, both inside and outside your courthouse.

File a complaint. You can file an internal workplace dispute resolution complaint under your courthouse’s Employee Dispute Resolution (EDR) Plan, seeking reassignment for the remainder of the clerkship. You can also file a complaint under the Judicial Conduct and Disability Act, the disciplinary process for misbehaving federal judges. Neither option provides sufficient redress for clerks. Troublingly, both processes are overseen by other judges in the circuit where the misbehaving judge and mistreated law clerk work—and judges are notoriously unwilling to discipline their colleagues.

Share your negative experience. The Legal Accountability Project is creating a centralized Clerkships Reporting Database where current and former clerks can anonymously report on their experiences. This will replace the “whisper networks,” which are currently one of the only ways for clerkship applicants to avoid misbehaving judges. In the meantime, consider reporting back to your law school: either to the Dean of Career Services or the Clerkship Director. Anecdotally, law clerk alums hesitate to report back to their law schools about their negative experiences due to fears of retaliation by the judges who mistreated them and reputational harm in the legal community. However, the first step toward stopping the cycle of abuse in the clerkship workspace is to speak honestly about our experiences. I am sensitive to fears of retaliation and reputational harm based on my personal experience. However, for law clerks who do not report, the judge who harassed them will probably harass future clerks.

Talk to an attorney. Filing a complaint, let alone proceeding through a formal hearing, is challenging. We need more employment attorneys to represent law clerks seeking judicial accountability pro bono. Clerks who gather the courage to file complaints deserve support from the legal community.

What does it mean to file a complaint?

There are two types of complaint processes—internal workplace dispute resolution under the EDR Plan and a formal judicial complaint under the Judicial Conduct and Disability Act. The former is intended to assist employees (i.e., law clerks). The latter is intended to (theoretically) discipline misbehaving judges.

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.

Many aspects of the EDR process are left to the discretion of the presiding judicial officer, disadvantaging law clerk complainants. Arecent Fourth Circuit case illustrates that EDR can become rife with abuse—lacking due process, impartiality, and confidentiality. Additionally, this process can easily overshadow most of a law clerk’s one- or two-year clerkship experience.

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 a judge can theoretically be sanctioned, although most complaints are dismissed. Law clerks can allege abusive or harassing behavior, discrimination, or retaliation. The circuit’s chief judge (the misbehaving judge’s boss) 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. Unfortunately, complaints rarely result in judicial discipline.

What should I do if my judge mistreats me?

The decision about how and when to address wrongful conduct by a judge is deeply personal. I participated in the formal judicial complaint process but did not receive redress. However, even if I knew the outcome would be the same, I would still have reported the mistreatment to my law school; I would still have filed a formal judicial complaint; I would still have participated in the investigation into the now-former judge. Publicly sharing my experience has been empowering. Current and former clerks reach out often to confide in me and thank me for sharing my story. Some ask for advice; some want an attorney referral; others admit they will probably never speak publicly.

By sharing my story, I hope to combat the toxic culture of silence in the legal community that discourages law clerk reporting and to create instead a culture of open and honest discussion about the range of clerkship experiences, including devastatingly painful and career-altering experiences like mine. Stopping the cycle of abuse starts with sharing our stories. Every law clerk should bring their full self to work. No one, regardless of their personality or their identity, deserves mistreatment. Ultimately, I aim to empower the next generation of attorneys to stand up for themselves and demand safer workplaces. The groundswell of student support for The Legal Accountability Project on campuses across the country makes me hopeful that positive change is headed to the judiciary.