SAN FRANCISCO, August 26, 2021 – Lawyers from Keker, Van Nest & Peters filed an amicus brief today in support of a former assistant federal public defender who is appealing a district-court order dismissing a case in which she challenged the federal judiciary’s handling of harassment and discrimination claims. A Keker team led by Erin Meyer and Deeva Shah filed the pro bono brief with the United States Court of Appeals for the Fourth Circuit on behalf of current and former employees of the federal judiciary who experienced or witnessed workplace harassment and discrimination.
Employees of the judicial branch (who include law clerks, judicial assistants, federal public defenders, pretrial and probation officers, and others) are generally unable to seek redress for harassment or discrimination under well-known laws like Title VII, the Americans with Disability Act, and others. Instead, they are required to follow the judiciary’s Employment Dispute Resolution (EDR) procedures. In March 2020, an assistant federal public defender under the pseudonym Jane Roe filed a first-of-its-kind federal lawsuit raising constitutional challenges to the judiciary’s EDR procedures. She filed the complaint after the judiciary mishandled and failed to properly address her report that a supervisor stalked and harassed her. Without redress, this harassment ultimately forced Roe to quit her job. Roe argued that the opaque and inadequate internal disciplinary procedures deprived her of her constitutional rights to due process and equal protection. On December 30, 2020, the district court dismissed Roe’s claims, a decision she appealed on August 20, 2021.
“The unique insulation of the federal judiciary from the typical legal mechanisms for accountability has resulted in ‘self-policing’ that is largely ineffective, leaving victims of harassment and discrimination to suffer,” said Ms. Shah. “We hope the stories these former and current employees share in this brief illuminate the pernicious nature of harassment within the judiciary and the need for a reporting and disciplinary process that provides meaningful redress while being fair and unbiased.”
Current and former employees who agreed to tell their own personal stories in this brief shared their harrowing and disturbing experiences of harassment and discrimination based on sex, race, sexual orientation and pregnancy status.
Many of these individuals also faced threats of retaliation that made it difficult, if not impossible, for them to do their jobs, and impeded their ability to secure future employment.
“Harassment and discrimination occur within all levels of the judiciary, just as in any place of employment, where judges and supervisors hold tremendous power over their employees,” said Ms. Meyer. “The stories shared in this brief demonstrate that bullying, belittling, and the use of sexual and homophobic language has been used against vulnerable employees free of consequences, because the reporting processes do not provide employees with real, meaningful redress. Reimagining the processes for reporting inappropriate behavior is essential to creating a system that promotes employee safety and mental wellbeing and eliminates the fear of retaliation that hinders professional success.”
As the personal stories in the brief highlight, adjudication of complaints often left employees without meaningful recourse and potentially further exacerbated their suffering. Although there exist multiple avenues to report misconduct--including the EDR Plan or through the Fair Employment Practices System (FEPS) complaint process--the brief notes that these procedures lack basic protections to ensure confidentiality and are inconsistent, vague, and slow. All of these shortcomings result in insufficient investigations that do not inspire confidence in the system. Moreover, the lack of confidentiality can create a hostile environment where judiciary employees face losing recommendations and tarnishing their reputations if they report misconduct, according to the brief.
After 23 years of working for the Administrative Office of the U.S. Courts and reviewing misconduct complaints, Amicus Laura Minor noted that she frequently “warned employees with complaints to think long and hard about reporting because the process is stacked against them and in favor of management.” She explained that although she truly believes in the judiciary as an institution, she does not think the judiciary is capable of self-policing because it “is far more interested in self-protection than addressing real problems of its employees.” She concluded that without “cultural and procedural changes, misconduct will continue to go unreported and judiciary employees across the country will be put in a position where they are required to either abandon hard-earned jobs or to suffer in silence.”
Roe’s experience outlined in her lawsuit echoes those shared by others in this brief. As it currently operates, the federal judiciary does not have the protocols or tools in place to “self-police.” Despite the judiciary’s role in ensuring the due-process rights of workers all across the United States, its 30,000 employees cannot access the very same rights and procedures. Instead, the wellbeing of those otherwise committed to serving the legal community is being cast to the wayside. On behalf of Roe and amici who generously participated in this brief, Keker, Van Nest & Peters encourages the Fourth Circuit to reverse the district court’s decision and for these shared experiences to ignite a call-to-action for reform within the federal judiciary.
The authors of this brief do not intend to condemn or shame the federal judiciary and its many efforts to reform the system. The authors themselves previously served as law clerks in the federal judiciary and found their clerkships to be formative and enriching experiences. They hope that this brief will show the need for accountability and redress for those whose experiences are unfortunately not the same
About Keker, Van Nest & Peters
For 40 years, Keker, Van Nest & Peters has litigated complex, high-stakes civil and criminal cases throughout the nation. The firm takes the cases where companies, products, and careers are riding on the result. Our clients are high-profile individuals, as well as some of the world’s most successful companies, including Facebook, Genentech, Google, Instacart, Lyft, Major League Baseball, Netflix and Qualcomm. The firm’s areas of expertise include intellectual property, professional liability, class actions, general contract and commercial litigation, antitrust, white collar, and appellate. Our firm has a long and proud tradition of providing pro bono representation, ranging from high-impact civil rights litigation impacting communities to habeas corpus, criminal, immigration and asylum matters on behalf of individuals.