Federal judiciary employees should be able to seek justice under the laws meant to protect them

During Ketanji Brown Jackson’s Supreme Court confirmation hearing last month, Sen. Mazie Hirono (D-Hawaii) asked the nominee about her role in addressing harassment and discrimination as an employer in the federal courts system. Hirono referenced the Judiciary Accountability Act (JAA), a bill she helped introduce last year with Rep. Hank Johnson (D-Ga.) to provide statutory protections against workplace misconduct to employees of the federal judiciary.  

Earlier this year, President Joe Biden signed another bill aimed at addressing workplace harassment into law: the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act, legislation the Bustos office and the Purple Campaign had been working to advance since Tarana Burke’s #MeToo movement went viral in the fall of 2017. The newly enacted law takes the important step of invalidating forced secret arbitration clauses that prevent sexual assault and sexual harassment survivors from seeking justice and public accountability under the laws meant to protect them. 

To this day, despite its role as the institution tasked with enforcing such anti-harassment laws to protect employees in other workplaces across America, the federal judiciary has resisted efforts to provide similar statutory protections to its own employees. While various federal laws—such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act—exist to protect employees from harassment and discrimination at work, until the 1990s these statutes did not apply to employees of the U.S. government.  

In 1995, Congress extended protection of these laws to its own workers through the Congressional Accountability Act (CAA), and to Executive Branch employees through the Presidential and Executive Office Accountability Act. A provision of the 1995 CAA required the federal judiciary to draft a report including recommendations for legislation to provide its employees with rights, protections, and procedures under federal law. The resulting report, however, resisted the enactment of such legislation, citing the “fundamental need to preserve judicial independence” and arguing against the need for Congress to “micro-manage or unnecessarily bureaucratize the day-to-day management of the courts.” 

But ensuring that employees—whether they work on a factory floor or in the halls of power—are protected from workplace misconduct is a fundamental role that Congress has played for decades. The bipartisan, bicameral effort to enact the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act is a recent example: Lawmakers on both sides of the aisle and in both chambers of Congress recognized the injustice in the fact that most American non-union employees were subject to boilerplate employment agreements that forced them to give up their right to file a lawsuit in the event of harassment—and they took action to fix the problem. 

In his 2021 Year-End Report, Chief Justice John Roberts insinuated that legislation to protect employees of the federal judiciary is unnecessary because workplace harassment in the institution is confined to “several high-profile incidents” and “not pervasive within the Judiciary.” But testimony shared by several former judiciary employees earlier this month at a hearing held by the House Judiciary Committee’s Subcommittee on the Courts, Intellectual Property, and the Internet made clear that this is simply not the case. 

Former Assistant Public Defender Caryn Strickland described how she was forced to resign after her supervisor made quid-pro-quo sexual advances toward her and “judiciary officials facilitated and aggravated the hostile work environment” instead of helping to resolve the problem. Caitlyn Clark explained that when she became pregnant with her second child during her clerkship for a federal judge, she “quickly learned that ‘pregnant’ is something that law clerks cannot be.” And Laura Minor, who worked in the judiciary for over 20 years, told the Committee that the institution’s insistence on self-policing only serves its interest in self-protection. 

Despite mounting evidence of workplace misconduct—and after decades of working groups, task forces, and status reports—the federal judiciary is still failing to protect its employees from harassment and discrimination. As a result, it’s time for Congress to step in to ensure that the more than 30,000 people who work in the federal judiciary are afforded the same right to an equal workplace that Congress has guaranteed to employees in other institutions. 

Like the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act, the JAA is bipartisan, bicameral legislation that would better allow employees to seek justice and public accountability under the laws that are meant to protect them. The bill would finally give judicial branch employees the same anti-discrimination rights and remedies that private sector employees have had for decades, and that employees in Congress and the executive branch now have as well. It would also protect whistleblowers by explicitly prohibiting retaliation against them and providing them with the right to sue for relief if they are retaliated against.  

Article I of the Constitution vests Congress with broad power to guarantee equal opportunity to employees across sectors—and it’s time for lawmakers here in Washington to use that authority to protect employees of the Third Branch from workplace harassment and discrimination.  

Rep. Cheri Bustos is a Democrat representing Illinois’s 17^th District. She serves on the House Appropriations and Agriculture Committees and was the original sponsor of the Ending Forced Arbitration of Sexual Assault & Harassment Act. Ally Coll is the president of the Purple Campaign, a non-profit organization she co-founded in 2018 to address workplace harassment. She is also an adjunct professor at George Mason University, where she teaches civil rights law.