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).
Chief Justice Roberts addressed sexual harassment in his 2017 Year-End Report on the Federal Judiciary. This report came out shortly after the media reported on allegations of sexual harassment from at least fifteen women against a federal appellate judge. The judge announced his retirement within days of those reports. The Chief Justice did not mention the judge, nor did he reference any other specific allegations of sexual harassment. He called for the creation of a working group to review codes of conduct and other policies, and expressed “the view that victims must have clear and immediate recourse to effective remedies.”
The Federal Judiciary Workplace Conduct Working Group (WG) convened in January 2018, and published its findings in June. While it concluded in its executive summary that “inappropriate conduct…[is] not pervasive within the Judiciary,” it found that it “is not limited to a few isolated instances.” It further concluded that “incivility, disrespect, or crude behavior are more common than sexual harassment.”
Despite seeming to downplay the prevalence of sexual harassment, the working group made several recommendations that could help address allegations more effectively. This includes requests for clarification from the JCUS that “workplace harassment is within the definition of misconduct” under the JCDA, and that the rules of confidentiality that govern court business “do not shield a judge from a complaint.” The working group also stated that judges themselves have a duty to report misconduct, including sexual harassment.
At Phillips & Associates, our experienced and skilled employment attorneys represent New York City employees, former employees, and job seekers, advocating for their rights in claims for sexual harassment and other unlawful workplace practices. Please contact us at (212) 248-7431 or online today to schedule a free and confidential consultation to discuss your case.
More Blog Posts:
Internal Watchdog Report Reveals Ongoing Sexual Harassment in U.S. Department of Justice, New York Employment Attorney Blog, September 12, 2018
How a Group of Women in New York Coined the Term “Sexual Harassment” Just Over 40 Years Ago, New York Employment Attorney Blog, September 4, 2018
Investigation Reveals Extent of Sexual Harassment Against Hotel Maintenance Workers in New York City and Nationwide, New York Employment Attorney Blog, August 13, 2018
Photo Credit: Production Perig / Shutterstock.com