The federal judiciary cannot “self-police” workplace conduct. In no other workplace are employees entrusted with sole authority to judge their colleagues’ alleged misconduct. But judicial reforms require congressional action and oversight. In its absence, the courts vociferously defend their biased complaint processes and dismiss calls for reform — including by dismissing a lawsuit filed against the federal judiciary by former North Carolina federal public defender Caryn Strickland in 2020, alleging harassment and retaliation by her supervisors at the Federal Defender’s Office and deliberate indifference when she spoke up.
In August, a circuit panel dismissed Strickland’s lawsuit. Five years of litigation spanned several presidential administrations and two presidential elections; a global pandemic; a change in counsel; congressional testimony; and the rare deposition of several judicial branch officials. Strickland asserted her Fifth Amendment right to a safe and respectful workplace, free from discrimination and harassment — rights not guaranteed to judicial branch employees, since more than 30,000 law clerks, permanent court staff, and federal public defenders are exempt from Title VII of the Civil Rights Act of 1964 and all federal anti-discrimination laws. Ironically, judges who interpret anti-discrimination laws are above those same laws; and public defenders who defend their clients’ rights in court, lack rights themselves. Simply put, judiciary employees support the daily functioning of our courts while lacking workplace protections; and judges rule on issues affecting litigants’ lives, livelihoods, and liberty, while themselves not required to abide by anti-discrimination laws.
How did Strickland get here — arguing her own case in federal court opposite her former employer? While working as a federal public defender, Strickland was harassed and discriminated against by the office’s first assistant. When she complained, the fFederal defender (his boss) sided with his second-in-command. Strickland filed a complaint under a previous version of the Employee Dispute Resolution (EDR) Plan. But, considering EDR lacked meaningful redress for Strickland and punishment for the first assistant; and the federal defender himself, not a neutral third party, would make the final decision, Strickland ultimately quit.
Strickland then sued the Fourth Circuit. She argued the EDR Plan, lacking procedural due process, was both facially unfair, and unfair as applied to her.
Importantly, internal dispute resolution is not one of several options for judicial branch employees: it’s their only option, misleadingly peddled as an “alternative” to Title VII and its robust procedural and due process guarantees. EDR puts the onus on law clerks (or permanent employees, in Strickland’s case) to blow the whistle on their powerful superiors — judges or federal defenders — while lacking legal protection against retaliation. The judiciary gives employees no confidence that, if they stick their necks out, their concerns will be taken seriously and robustly investigated. Nor will they receive meaningful redress since, unlike under Title VII, which provides for monetary remedies to address harms to one’s career, no monetary remedies are available under EDR.
Mistreated employees might ask themselves: why file a complaint at all? The best one can reasonably hope for is reassignment to a different judge or office. That’s cold comfort when judiciary policies do nothing to prevent the judge or supervisor who harassed you — probably angry about the complaint — from retaliating against you by badmouthing you to prospective employers, getting you blackballed from your dream job, or derailing your career, as Strickland experienced.
The EDR process, Strickland argued, lacks meaningful due process and impartiality. An employee is not guaranteed a real opportunity to be heard — the presiding judicial officer (PJO) isn’t required to hold a hearing. And, importantly, at least for law clerk complaints, the PJO is another judge in the court — the friend and colleague of the judge you’re complaining about. Mistreated clerks regularly tell me they wouldn’t file complaints because the judge’s friends and colleagues are not impartial decisionmakers, so they don’t believe they’ll get a fair shake. It’s no different for public defenders — the decision-maker is your boss.
To correct this, the judiciary could transfer every complaint to a different circuit, so judges less likely to know the judge at issue would review them. Or, the courts could remove EDR entirely from the judiciary’s chain of command: neutral third-party civil rights investigators, rather than judges, could review and adjudicate complaints. But the judiciary has historically resisted these reforms.
The EDR Plan is fundamentally flawed. Yet, while the court in Strickland conceded various procedural “imperfections” and “missteps” by the circuit handling Strickland’s complaint, they determined these did not rise to the level of fundamental unfairness. Disturbingly, while the EDR Plan has theoretically been revised since 2018, the revised Model EDR Plan isn’t meaningfully different. The issues Strickland raised — including delays and lack of impartiality among decision-makers — haven’t been corrected. The plan puts far too little in writing and leaves too much to the discretion of individual PJOs, who routinely give fellow judges the benefit of the doubt.
EDR is a sham. Consider the results of the federal judiciary’s own 2023 workplace climate survey: while at least 106 law clerks and 139 public defenders experienced wrongful conduct that year, just seven law clerks and around 20 public defenders filed EDR complaints in the two-year period between 2021 and 2023. This discrepancy between mistreatment experienced and complaints filed is partially due to the lack of protection against retaliation; and partially to employees’ lack of confidence in the process. In fact, only 42% of employees said they’d be willing to report misconduct. And among employees who used the EDR Plan, only 20% described their experience as positive. When asked why, most either said “nothing was done” after they complained, or they were “never told what was done.”
The federal judiciary has done nothing since releasing these results in March to explain how they’ll foster increased confidence in and use of the plan. The Third Branch regularly expounds on rules and processes: if they wanted to make changes, they would. Refusing to implement meaningful workplace reforms is part of a concerted effort by the judiciary to maintain the broken status quo and shield abusive judges from accountability.
The diagnosis is simple: judiciary employees will not file complaints until they’re legally protected against retaliation under Title VII. It’s one reason why the judiciary opposes extending these protections to employees: they shield abusive judges from accountability through both legal action and internal complaints. The courts have effectively chilled complaints by making it nearly impossible for employees to safely file them: they boast about low complaint numbers while actively suppressing them.
Strickland’s landmark lawsuit raises two fundamental questions. First, why are 30,000 judiciary employees who support the daily functioning of our courts still exempt from all federal anti-discrimination laws? Second, in the absence of Title VII, does EDR provide employees with a meaningful alternative that guarantees their constitutional and fundamental rights? The answers to these questions are unsatisfying to anyone who believes in workers’ rights, civil rights, democracy, and the rule of law.
There is no substitute for Congress extending federal anti-discrimination protections to judicial branch employees. Those who help ensure a functioning judiciary deserve workplace protections, and judges should not be above the laws they interpret. Yet every day, congressional Democrats obsess about the dismantling of our democracy, while failing to realize there are fewer greater threats to our democracy than exempting 1,700 unaccountable, ungoverned federal judges who interpret our laws from those laws. The federal judiciary cannot be viewed as a fair and neutral arbiter of disputes, when judges’ workplace conduct is so lawless, and when they treat their employees with such callous disregard. Sadly, lawmakers lack relevant lived experience and sensitivity to workplace harassment: it’s no surprise they’ve abdicated their oversight responsibility, throwing tens of thousands of vulnerable judicial branch employees — their own constituents — under the bus.
The court’s ruling in Strickland, and the federal judiciary’s hostility to workplace reforms, send a message that when you’re a judge, they let you do it. And that being a judge means never having to say you’re sorry. For every Caryn Strickland who speaks up, hundreds — thousands — of judiciary employees suffer in silence. The drumbeat for reform will only grow louder as lawyers and nonlawyers alike realize judges’ conduct behind the bench affects all of us, spilling over into their rulings and their interpretation of anti-discrimination laws, thereby further threatening already shaky public confidence in the judiciary. We do not have to accept judicial branch lawlessness. Solutions exist, if we care to fight for them. Why are judges still above the law?
Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.
The post Federal Judiciary Says ‘F.U.’ To Public Defender In A Win For … Justice? appeared first on Above the Law.
The federal judiciary cannot “self-police” workplace conduct. In no other workplace are employees entrusted with sole authority to judge their colleagues’ alleged misconduct. But judicial reforms require congressional action and oversight. In its absence, the courts vociferously defend their biased complaint processes and dismiss calls for reform — including by dismissing a lawsuit filed against the federal judiciary by former North Carolina federal public defender Caryn Strickland in 2020, alleging harassment and retaliation by her supervisors at the Federal Defender’s Office and deliberate indifference when she spoke up.
In August, a circuit panel dismissed Strickland’s lawsuit. Five years of litigation spanned several presidential administrations and two presidential elections; a global pandemic; a change in counsel; congressional testimony; and the rare deposition of several judicial branch officials. Strickland asserted her Fifth Amendment right to a safe and respectful workplace, free from discrimination and harassment — rights not guaranteed to judicial branch employees, since more than 30,000 law clerks, permanent court staff, and federal public defenders are exempt from Title VII of the Civil Rights Act of 1964 and all federal anti-discrimination laws. Ironically, judges who interpret anti-discrimination laws are above those same laws; and public defenders who defend their clients’ rights in court, lack rights themselves. Simply put, judiciary employees support the daily functioning of our courts while lacking workplace protections; and judges rule on issues affecting litigants’ lives, livelihoods, and liberty, while themselves not required to abide by anti-discrimination laws.
How did Strickland get here — arguing her own case in federal court opposite her former employer? While working as a federal public defender, Strickland was harassed and discriminated against by the office’s first assistant. When she complained, the fFederal defender (his boss) sided with his second-in-command. Strickland filed a complaint under a previous version of the Employee Dispute Resolution (EDR) Plan. But, considering EDR lacked meaningful redress for Strickland and punishment for the first assistant; and the federal defender himself, not a neutral third party, would make the final decision, Strickland ultimately quit.
Strickland then sued the Fourth Circuit. She argued the EDR Plan, lacking procedural due process, was both facially unfair, and unfair as applied to her.
Importantly, internal dispute resolution is not one of several options for judicial branch employees: it’s their only option, misleadingly peddled as an “alternative” to Title VII and its robust procedural and due process guarantees. EDR puts the onus on law clerks (or permanent employees, in Strickland’s case) to blow the whistle on their powerful superiors — judges or federal defenders — while lacking legal protection against retaliation. The judiciary gives employees no confidence that, if they stick their necks out, their concerns will be taken seriously and robustly investigated. Nor will they receive meaningful redress since, unlike under Title VII, which provides for monetary remedies to address harms to one’s career, no monetary remedies are available under EDR.
Mistreated employees might ask themselves: why file a complaint at all? The best one can reasonably hope for is reassignment to a different judge or office. That’s cold comfort when judiciary policies do nothing to prevent the judge or supervisor who harassed you — probably angry about the complaint — from retaliating against you by badmouthing you to prospective employers, getting you blackballed from your dream job, or derailing your career, as Strickland experienced.
The EDR process, Strickland argued, lacks meaningful due process and impartiality. An employee is not guaranteed a real opportunity to be heard — the presiding judicial officer (PJO) isn’t required to hold a hearing. And, importantly, at least for law clerk complaints, the PJO is another judge in the court — the friend and colleague of the judge you’re complaining about. Mistreated clerks regularly tell me they wouldn’t file complaints because the judge’s friends and colleagues are not impartial decisionmakers, so they don’t believe they’ll get a fair shake. It’s no different for public defenders — the decision-maker is your boss.
To correct this, the judiciary could transfer every complaint to a different circuit, so judges less likely to know the judge at issue would review them. Or, the courts could remove EDR entirely from the judiciary’s chain of command: neutral third-party civil rights investigators, rather than judges, could review and adjudicate complaints. But the judiciary has historically resisted these reforms.
The EDR Plan is fundamentally flawed. Yet, while the court in Strickland conceded various procedural “imperfections” and “missteps” by the circuit handling Strickland’s complaint, they determined these did not rise to the level of fundamental unfairness. Disturbingly, while the EDR Plan has theoretically been revised since 2018, the revised Model EDR Plan isn’t meaningfully different. The issues Strickland raised — including delays and lack of impartiality among decision-makers — haven’t been corrected. The plan puts far too little in writing and leaves too much to the discretion of individual PJOs, who routinely give fellow judges the benefit of the doubt.
EDR is a sham. Consider the results of the federal judiciary’s own 2023 workplace climate survey: while at least 106 law clerks and 139 public defenders experienced wrongful conduct that year, just seven law clerks and around 20 public defenders filed EDR complaints in the two-year period between 2021 and 2023. This discrepancy between mistreatment experienced and complaints filed is partially due to the lack of protection against retaliation; and partially to employees’ lack of confidence in the process. In fact, only 42% of employees said they’d be willing to report misconduct. And among employees who used the EDR Plan, only 20% described their experience as positive. When asked why, most either said “nothing was done” after they complained, or they were “never told what was done.”
The federal judiciary has done nothing since releasing these results in March to explain how they’ll foster increased confidence in and use of the plan. The Third Branch regularly expounds on rules and processes: if they wanted to make changes, they would. Refusing to implement meaningful workplace reforms is part of a concerted effort by the judiciary to maintain the broken status quo and shield abusive judges from accountability.
The diagnosis is simple: judiciary employees will not file complaints until they’re legally protected against retaliation under Title VII. It’s one reason why the judiciary opposes extending these protections to employees: they shield abusive judges from accountability through both legal action and internal complaints. The courts have effectively chilled complaints by making it nearly impossible for employees to safely file them: they boast about low complaint numbers while actively suppressing them.
Strickland’s landmark lawsuit raises two fundamental questions. First, why are 30,000 judiciary employees who support the daily functioning of our courts still exempt from all federal anti-discrimination laws? Second, in the absence of Title VII, does EDR provide employees with a meaningful alternative that guarantees their constitutional and fundamental rights? The answers to these questions are unsatisfying to anyone who believes in workers’ rights, civil rights, democracy, and the rule of law.
There is no substitute for Congress extending federal anti-discrimination protections to judicial branch employees. Those who help ensure a functioning judiciary deserve workplace protections, and judges should not be above the laws they interpret. Yet every day, congressional Democrats obsess about the dismantling of our democracy, while failing to realize there are fewer greater threats to our democracy than exempting 1,700 unaccountable, ungoverned federal judges who interpret our laws from those laws. The federal judiciary cannot be viewed as a fair and neutral arbiter of disputes, when judges’ workplace conduct is so lawless, and when they treat their employees with such callous disregard. Sadly, lawmakers lack relevant lived experience and sensitivity to workplace harassment: it’s no surprise they’ve abdicated their oversight responsibility, throwing tens of thousands of vulnerable judicial branch employees — their own constituents — under the bus.
The court’s ruling in Strickland, and the federal judiciary’s hostility to workplace reforms, send a message that when you’re a judge, they let you do it. And that being a judge means never having to say you’re sorry. For every Caryn Strickland who speaks up, hundreds — thousands — of judiciary employees suffer in silence. The drumbeat for reform will only grow louder as lawyers and nonlawyers alike realize judges’ conduct behind the bench affects all of us, spilling over into their rulings and their interpretation of anti-discrimination laws, thereby further threatening already shaky public confidence in the judiciary. We do not have to accept judicial branch lawlessness. Solutions exist, if we care to fight for them. Why are judges still above the law?
Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.
The post Federal Judiciary Says ‘F.U.’ To Public Defender In A Win For … Justice? appeared first on Above the Law.
