By Kit Beyer, FTC law clerk

Six weeks ago, lawmakers in each house of Congress reintroduced the Judicial Accountability Act, which would establish statutory protections against discrimination, harassment and other forms of workplace misconduct for employees of the federal judiciary.

While there is much to commend, the current Senate version of the bill, S. 5168, lacks a key feature that its House counterpart, H.R.9674, includes: the creation of an Office of Employee Advocacy.

The House already has such an office for its own employees, and its successes illustrate why a judicial equivalent is desirable. 

Responsibilities of the OEA

The House’s OEA offers a range of valuable services to employees. It gives advice and representation to employees on matters such as harassment and discrimination, medical leave, workplace safety and equal pay. OEA attorneys inform employees of their legal rights and options when disputes arise, including alternatives to litigation such as informal discussion and structured mediation. 

Beyond consultation and advice, OEA attorneys serve as employees’ legal representatives for claims brought in the Office of Congressional Workplace Rights pursuant to the Congressional Accountability Act. Similarly, in the House version of the Judicial Accountability Act, the proposed judicial OEA would represent employees in claims brought before the Office of Judicial Integrity.

Finally, the House’s OEA operates anonymous hotlines for employees to reach out to for support, another service that H.R. 9674 would make available to employees of the judiciary. 

Dispute resolution process

The Congressional Accountability Act, as reformed in 2018, sets up a step-by-step dispute resolution procedure that H.R. 9674 and S. 5168 emulate, substituting the Office of Judicial Integrity for the Office of Congressional Workplace Rights. 

First, a concerned employee files their claim with the Office. Current House staff, and judiciary staff under H.R. 9674, could also contact the OEA beforehand for consultation about their rights and the merits of a potential claim. 

The Office then sends both employer and employee information about mediation: at any point until the issuance of a final written decision, either party can request mediation and proceed by mutual agreement.

Meanwhile, an Office-appointed Preliminary Hearing Officer writes a written report with a preliminary review of the claim, assessing factors such as whether the claim is timely and whether relief may be granted. If mediation fails, or parties do not wish to engage in mediation, the employee can proceed with an administrative hearing with representation from the OEA. (Alternatively, under the Congressional Accountability Act and both versions of the Judicial Accountability Act, the employee could also file a civil claim in a U.S. district court, but neither the current congressional OEA nor H.R. 9674’s proposed judicial OEA would provide representation in this venue.)

Should the employee choose to pursue a hearing, they must request it within 10 days of the submission of the preliminary report. Once the request is made, a Merits Hearing Officer is appointed to decide the matter, and the employing office has an opportunity to file an answer addressing the allegations. OEA attorneys advocate on behalf of the employee during the hearing, and within 90 days, the Merits Hearing Officer releases a decision. If an employee or employer is not satisfied with the final merits decision from an administrative hearing, they can request review by the Office’s Board of Directors; H.R.9674 provides for a parallel Board in the Office of Judicial Integrity. The OEA can represent employees in these appeals.

Example cases

A couple of previous Office of Congressional Workplace Rights cases highlight the importance of ensuring that employees have adequate resources for addressing violations of their legal rights. While the House’s current OEA was not yet established when these cases were decided, they exemplify the kinds of disputes in which OEA advocates could now represent employees. 

First is Lowery v. Office of the Architect of the Capitol (2012), an action brought by Bren Lowery, a Black Visitor Assistant Supervisor who worked in the Office of the Architect of the Capitol. At staff happy hours, Lowery’s coworkers ridiculed his manner of speech and writing, referred to him as ignorant and uneducated, and played games making fun of words that Lowery mispronounced, causing Lowery to stop attending the happy hours. Coworkers also mocked him at meetings and in the employee locker room. Lowery filed a complaint alleging racial discrimination and retaliation. The Hearing Officer awarded him $50,000 in damages, and the OWCR Board of Directors affirmed.

Another example is Iyoha v. Office of the Architect of the Capitol (2014). The plaintiff in this case was Sunday Iyoha, a Black man from Nigeria who started working for the AOC in 2008 as a Help Desk Manager. A white Chief Information Officer at the AOC made denigrating comments about Iyoha and other employees’ accents, and Iyoha’s supervisors testified that the CIO did not like “foreigners” in management positions. 

Iyoha was then reassigned to a position that he objected to because it did not allow him to make use of his customer service and computer skills. The Hearing Officer found that Iyoha was discriminated against because of his national origin and awarded him compensatory damages and attorney fees.

Unfortunately, employees of the federal judiciary, no less than Lowery and Iyoha, may experience discrimination or other forms of unlawful workplace conduct. Establishing an Office of Employee Advocacy would give them much-needed assistance in handling these problems when they arise. 

In its version of the Judicial Accountability Act, the House has recognized this need and responded to it.

The Senate should follow its lead and give judiciary employees the meaningful protection they deserve.