This New Federal Judge Sexual Harassment Case Is Just the Tip of the Iceberg

The federal judiciary has a sexual harassment problem. Yet the entire federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, the antidiscrimination law that protects employees in most other workplaces: More than 30,000 judiciary employees cannot sue their harassers and seek damages for harm to their careers, reputations, and future earning potential. And right now, life-tenured judges are above the laws they interpret and enforce. Fortunately, there’s a fix. Earlier this month, former Alaska federal Judge Joshua Kindred resigned in scandal after the 9 th Circuit Judicial Council found egregious sexual harassment and appalling abuse occurred in his judicial chambers over a several-year period. Kindred sent hundreds of pages of inappropriate text messages to clerks, talked about his sex life in chambers, and engaged in a sexualized relationship with a clerk. At least one clerk quit rather than endure abuse.

In November 2022, 9 th Circuit Chief Judge Mary Murguia initiated an investigation based on an employee tip. During the 20-month investigation, Kindred continued to supervise—and harass—clerks. The judiciary extended no meaningful protection to prevent further abuse or retaliation for participating in the investigation, though the chief judge is empowered to reassign clerks. Clerks tell me these allegations are just the tip of the iceberg: Discrimination, harassment, abusive conduct, and retaliation still occur in courthouses nationwide. Yet most clerks have not and would not report misconduct to the judiciary because they fear retaliation by judges and believe complaints are not usually taken seriously anyway.

Kindred’s resignation is not an example of the system working as it should. Rather, it is yet further evidence the judiciary cannot and should not “self-police,” given judges’ inability to impartially judge their colleagues’ misconduct.

Judges’ behind-the-scenes treatment of clerks can spill over into their rulings and interactions with litigants: An assessment of Kindred’s cases found that he dismissed all sexual harassment claims that came before him. There are no standardized systems to prevent, discipline, or rectify federal judges’ misconduct. Because the judiciary is exempt from Title VII, clerks who are harassed, terminated, or retaliated against have no legal redress. And the Byzantine reporting processes are stacked against clerks. As of 1995, Title VII applies to judges’ peers in the executive and legislative branches. Yet the judiciary continues to oppose extending Title VII protections to its employees, asserting “separation of powers” and claiming they can “self-police” through formal complaints and Employee Dispute Resolution despite clear evidence to the contrary.

Some judges believe they have “solved” these problems because there have been few Kozinski-type incidents in recent years. In fact, this is not even the first instance of publicly reported judicial misconduct this year (and most incidents never become public).

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This spring, a U.S. Court of Appeals for the 2 nd Circuit judge was reprimanded for an “overly harsh” work environment. Meanwhile, former North Carolina public defender Caryn Devins Strickland is still fighting for justice in her lawsuit against the U.S. Court of Appeals for the 4 th Circuit after she was harassed, constructively discharged, and retaliated against. Strickland raised constitutional claims because public defenders, too, are exempt from Title VII.

Existing processes have not solved these problems. Employee Dispute Resolution, or internal dispute resolution, has been described by clerks and attorneys who’ve participated as a “kangaroo court” that “lacks even the appearance of impartiality or due process.” It’s overseen by fellow judges in the courthouse where the complainant law clerk and respondent judge work, creating at least the appearance of, if not an actual, conflict of interest.

There is no substitute for legislative action. Congress should reintroduce and pass the Judiciary Accountability Act and extend federal antidiscrimination protections to 30,000 judiciary employees this year. Importantly, the JAA also protects whistleblowers against retaliation for filing complaints, revises and standardizes EDR Plans among federal circuits, clarifies the judicial complaint process so investigations can continue even after judges step down, and creates multiple confidential reporting channels. The JAA also finally imposes data transparency on the opaque Third Branch, requiring them to annually report to Congress data on both judicial misconduct complaints and diversity in employee hiring. Analyzing the scope of these problems—a lack of accountability, transparency, diversity, and equity—is the first step toward crafting effective solutions. Public data reporting on judicial misconduct helps aspiring clerks avoid abusive judges like Kindred. Sadly, there has historically been a lack of transparency around chambers culture and clerkship hiring.

The JAA is commonsense, bipartisan legislation. Both Democratic and Republican appointees mistreat clerks; both progressive and conservative clerks are mistreated with limited recourse. If judges harass their clerks, the same laws that apply to their government counterparts should apply to them, too. The judiciary is a co-equal branch, not a superior branch. The judiciary seeks an increasingly large annual budget from Congress, yet they are not required to prove meaningful progress. The inadequate options for mistreated clerks do not work: They are overseen by chief judges who may or may not care about preventing or disciplining fellow judges’ misconduct. Sadly, the judiciary is buoyed by data evidencing a negligible number of formal complaints annually (typically fewer than 10). These numbers do not suggest harassment is not happening; rather, it is a red flag that reporting systems do not work.

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Some JAA opponents believe these problems are not pervasive. Others know they are, and worry lawsuits against judges might impact the courts’ daily functioning.

To avoid lawsuits in the private sector, employers implement front-end measures. Within the federal judiciary, these could include: chief judges modeling better behavior for fellow judges; oversight and routine check-ins by chief judges and directors of workplace relations over judges’ dealings with clerks; mandatory management, workplace conduct, and EDR training for judges; and swift internal discipline for abusive judges.

Judges are loath to blow the whistle on colleagues and have historically taken the position “Not my chambers, not my business.” Yet unless the judiciary raises the bar on workplace civility generally, abusive judges will tarnish the reputation of the federal courts.

Federal judges are uniquely unaccountable, and uniquely shrouded from scrutiny. Congress must seize this opportunity to finally correct an outrageous loophole and achieve justice for judiciary employees.