By Dave Simpson for Law360.com
A bipartisan group of U.S. lawmakers on Thursday introduced a new comprehensive proposal to provide the 30,000 federal judiciary workers with the same rights and protections against discrimination, sexual harassment and other misconduct afforded to other government workers and those in the private sector.
Lawmakers in both the House and Senate introduced versions of the Judiciary Accountability Act of 2021, citing the spate of harassment cases that have surfaced in the judiciary since the start of the #MeToo movement.
“While numerous institutions — including Congress — have taken action to address these issues, the federal Judiciary has failed to take effective steps to protect their employees from harassment, discrimination, retaliation, and other misconduct,” House Judiciary Committee Chair Jerry Nadler, D-N.Y., said in a release. “The Judiciary Accountability Act will provide an overhaul of accountability on these issues by promoting protections for Judiciary employees and protecting the integrity of our Judicial Branch.”
Nadler introduced the House version of the bill along with Reps. Hank Johnson, D-Ga., Jackie Speier, D-Calif., Norma Torres, D-Calif., and Nancy Mace, R-S.C. Sens. Mazie Hirono, D-Hawaii, Sheldon Whitehouse, D-R.I., Patty Murray, D-Wash., and Dick Durbin, D-Ill., brought a companion bill in the Senate.
In addition to providing protections given to most workers under federal statutes like Title VII of the Civil Rights Act of 1964, the proposed bill would provide whistleblower protections and the rights for whistleblowers to sue if they face retaliation. It would establish a “workplace misconduct prevention program,” an Office of Judicial Integrity and a Special Counsel for Equal Employment Opportunity, which would have investigatory power. And it would require regular assessments of workplace culture within the judiciary.
“All workers deserve and should expect basic workplace rights that protect them from harassment, discrimination and other forms of misconduct,” Johnson said in a release. “The fact that federal judiciary employees are denied these basic rights is just flat wrong and must be remedied. The irony is the judiciary metes out justice but there is no justice for judiciary employees. This isn’t about punishing judges, it’s about protecting workers and offering them the same basic workplace rights we all enjoy.
Last year, student groups at three elite law schools urged federal court leaders to redouble efforts to combat sexual misconduct by judges and to publicize more data reflecting workplace conduct issues. Citing frustration with ongoing #MeToo-era reforms in the courts, student advocacy groups at Yale, Stanford and Harvard law schools called for “immediate action” to create a national survey for the federal court system and for greater public transparency into complaints about judges and court staff.
That letter came just two weeks after attorney Olivia Warren told a House Judiciary subcommittee that Ninth Circuit Judge Stephen Reinhardt, who died in 2018, subjected her and others to demeaning treatment and sexual harassment. That treatment worsened, Warren testified, after accusations of inappropriate sexual behavior against another prominent Ninth Circuit judge, Alex Kozinski, made headlines in late 2017.
A series of reports alleging that Kozinski had a long history of lewd, sexualized behavior and describing the reluctance by many clerks to publicly accuse him led to a judicial misconduct investigation, which ended abruptly following Kozinski’s resignation in December 2017.
In response to that high-profile scandal and the #MeToo movement, federal court leaders have over the last several years enhanced conduct rules, increased workplace training and created new avenues for complaint reporting and resolution, including through the Judicial Integrity Office. A number of individual circuit courts are also revamping employee dispute processes and policies.
But complaints about harassment have remained in the public eye, including with the resignation announcement last year by U.S. District Judge Carlos Murguia of Kansas.
In September 2019, the judicial oversight body of the Tenth Circuit publicly rebuked Judge Murguia, saying he gave “preferential and unwanted attention” to female court employees and had an affair with a convicted felon, among other issues.
“Our third branch of government, the Judiciary, charged with enforcing our laws, must abide by the same workplace standards as the rest of government,” Rep. Mace said in a statement Thursday. “Employees of our courts should not be afraid of workplace retribution from powerful judges.”