We have learned much in the last year about not only the extent of sexual harassment nationwide, but also people’s willingness to push back against workplace cultures that allow this sort of behavior to persist. The government is no exception, with people alleging numerous instances of sexual harassment in government agencies, legislative offices, and courts. Late last year, U.S. Supreme Court Chief Justice John Roberts acknowledged that sexual harassment has been a problem in the federal court system for some time. He joined other judges who have called for greater efforts to address New York sexual harassment, both in Manhattan and around the country. In June 2018, a working group formed to review the issue made recommendations for sweeping changes to the federal judiciary’s employment practices.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in various forms. The statute’s definition of an employer, however, excludes “the United States” and any “corporation wholly owned by the Government of the United States.” 42 U.S.C. § 2000e(b)(1). Title VII’s protections are only available to federal judiciary employees who “hav[e] positions in the competitive service,” which generally consists of “positions to which appointments are made by nomination for confirmation by the Senate.” 42 U.S.C. § 2000e-16(a), 5 U.S.C. § 2102(b).
This leaves many employees without recourse under Title VII. The Judicial Conference of the United States (JCUS) has adopted a Model Equal Employment Opportunity Plan. Complaints against judges might also be possible under the Judicial Conduct and Disability Act (JCDA) of 1980, which allows complaints “alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a).