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FTC Praises, Endorses Bill to Hold Judiciary Officials Accountable for Harassment, Discrimination and Retaliation

Fix the Court is praising and endorsing a bicameral, bipartisan bill introduced today that would hold judiciary employees — including judges — accountable for harassment and discrimination and ensure that third branch victims of misconduct have clear, extensive avenues through which to seek justice.

The introduction of the Judiciary Accountability Act — H.R. 4827 / S. 2553 — shows that the story of misconduct did not end once Judge Kozinski resigned in Dec. 2017. Since then, the judiciary’s Working Group hasn’t done enough, and we’ve heard more harrowing stories from victims of harassment and discrimination.

After multiple hearings, letters, another resignation and federal lawsuit, members of Congress drafted legislation that will update the 40-year-old judicial misconduct statute; give judiciary employees — finally — statutory protections against discrimination, sexual harassment, retaliation and other forms of workplace misconduct; and offer avenues to justice that will no longer favor the courts’ higher-ups (i.e., judges, federal defenders, etc.) at the expense of its rank-and-file employees (clerks, judicial assistants, etc.).

“Yes, the Judicial Conference in recent years has stated judiciary employees can’t harass, discriminate or retaliate without facing serious consequences. But it’s one thing for an administrative body to say it, and another thing entirely — and a much more significant thing — for protections against these behaviors to be codified in federal law. Judges concerned about the health and safety of their colleagues should welcome this measure,” FTC’s Gabe Roth said. (Aug. 25 edit: they didn’t welcome it.)

FTC was especially pleased to see two of its suggestions make the bill: first, that harassment is officially deemed “misconduct” in the federal misconduct law; and second, that a judge’s resignation, retirement or death would no longer be a reason to end a misconduct complaint. In other words, just because Kozinski resigned or Reinhardt died, we should still investigate the claims against them, see what we can learn and offer restitution to their victims.

FTC’s Roth added in the congressional press release announcing the bill: “The idea that something terrible happens, and the public simply moves on a few months later because those responsible are no longer in power, might be gaining popularity in some circles, but it shouldn’t be when it comes to the bad actors and actions in the federal judiciary.

“Keeping misconduct complaints alive, as this bill does, even if the offending judge has resigned, is a way to learn from experience and prevent future wrongdoing. Even more so, it’s critical that victims of misconduct — especially when it’s harassment — have a true remedy in federal law beyond a 40-year-old statute that’s stacked against victims and against any real measure of accountability. This bill provides that, as well. I thank Reps. Johnson, Speier, Nadler, Torres and Mace and Sens. Hirono, Durbin, Murray and Whitehouse for their leadership in bringing just resolutions to what has been an unjust system for too long.”

Here’s a summary of the provisions of the bill from the sponsors’ press release:

  • Give judicial branch employees the same anti-discrimination rights and remedies private sector and government employees have had for decades. Today, judicial branch employees are not protected by the federal civil rights statutes that prohibit discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, and disability. The Judiciary Accountability Act would correct that injustice.
  • Protect whistleblowers by prohibiting retaliation against them and providing them with the right to sue for relief if they are retaliated against. Unlike most other federal employees, judicial branch employees currently have no statutory protection against retaliation. At a House Judiciary Committee hearing in 2020, multiple witnesses testified that they and others were afraid to come forward about the sexual harassment they suffered or witnessed.
  • Establish a comprehensive workplace misconduct prevention program overseen by a newly established Commission on Judicial Integrity. The Commission would include members experienced in investigating and enforcing civil rights laws against workplace discrimination; assisting victims of discrimination, retaliation, sexual harassment and sexual assault; conducting audits and investigations of government agencies; as well as current employees and former law clerks.
  • Create an Office of Judicial Integrity to administer a nationwide, confidential reporting system; a comprehensive training program addressing workplace behavior and bystander intervention; public reporting of anonymized harassment complaints; and public reporting of demographic information for judicial clerkship positions.
  • Establish a Special Counsel for Equal Employment Opportunity empowered to investigate all workplace misconduct complaints, including misconduct by judges. The Special Counsel would also regularly audit the judicial branch’s misconduct programs and procedures, and report to Congress on its findings.
  • Require regular assessments of workplace culture to determine the effectiveness of judicial branch policies designed to prevent and remedy harassment and discrimination.
  • Make clear that discrimination and retaliation constitute judicial misconduct and ensure that the judicial misconduct laws apply to all federal judges and justices and that allegations of misconduct will be investigated, regardless of whether the judge subsequently resigns, retires, or passes away.

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