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Judges accused of sex discrimination, bullying, internal survey shows

The Washington Post logo The Washington Post 5/16/2022 Ann Marimow
Attendees at a portrait presentation ceremony earlier this month for Judge Judith W. Rogers of the U.S. Court of Appeals for the District of Columbia Circuit. © Jabin Botsford/The Washington Post Attendees at a portrait presentation ceremony earlier this month for Judge Judith W. Rogers of the U.S. Court of Appeals for the District of Columbia Circuit.

One federal appeals court judge in D.C. has hired only male law clerks for the past two decades. Another judge allegedly refused to speak to a staffer for weeks after a child-care emergency caused the assistant to depart work early one day. Others are said to have reduced their employees to tears by yelling or making cruel comments about the quality of their work.

These and other complaints appear in a confidential workplace survey conducted for the federal trial and appeals courts in the nation’s capital, an institution regarded as a steppingstone to the Supreme Court. It details instances of gender discrimination, bullying and racial insensitivity, while underscoring the stark power imbalance between judges with life tenure and the assistants who depend on them for career advancement.

In the survey, a copy of which was obtained by The Washington Post, and in related interviews, current and former courthouse employees who acknowledged having witnessed misconduct described their reluctance to file formal complaints against their superiors. They cited fears of retaliation and distrust that the federal judiciary’s system for workplace accountability, which tasks judges with policing one another, ultimately would resolve their concerns.

“There is no point to reporting,” said one survey respondent, “because discipline is nonexistent.”

Chief Judge Sri Srinivasan of the District of Columbia Circuit at the portrait presentation ceremony. © Jabin Botsford/The Washington Post Chief Judge Sri Srinivasan of the District of Columbia Circuit at the portrait presentation ceremony.

Chief Judge Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit said in a statement, “We aim to maintain a workplace in which we all treat one another, and the members of the public we serve, with respect and dignity.” He added that the employee survey “is an important part of that effort,” but declined to address complaints raised by courthouse staff related to specific personnel matters, citing privacy concerns.

D.C. Circuit Judge Cornelia T.L. Pillard, who co-chairs the committee that commissioned the 2021 survey, said the panel has “focused on strengthening policies and making sure employees know how to give input, express concerns, and lodge complaints.”

“We told them, ‘We want to hear from you. There are lots of ways to speak up,’” Pillard said in an email.

Pillard said the survey was initiated on advice that “improving the workplace starts with knowing your employees’ experience.”

Court leaders have scheduled mandatory courthouse-wide training this month, including for the court’s 40 judges, and are hiring an additional dedicated workplace relations professional.

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Ever since California appeals court judge Alex Kozinski retired in 2017 amid allegations of workplace sexual misconduct, leaders of the federal judiciary have sought to encourage reporting and eliminate barriers to holding court officials accountable. U.S. Chief Justice John G. Roberts Jr. said in December that although there has been progress, the judiciary has more work to do.

At the same time, Roberts and others have strenuously resisted calls from advocates and members of Congress who say outside intervention is necessary. Pending legislation would impose independent oversight and extend anti-discrimination protections to the judiciary’s more than 30,000 employees nationwide, who lack the same rights as other government and private-sector workers.

The survey of D.C. federal court staff was conducted by the Federal Judicial Center, the judiciary’s research agency, and completed last July. Of the more than 400 current or recent court employees who participated, more than 90 percent said they had not personally experienced, witnessed or heard about incidents of wrongful conduct. A significant majority — 89 percent — gave the U.S. District Court and the D.C. Circuit positive ratings as a workplace.

But the survey also includes 57 reports from employees who said they personally experienced problematic behavior, and 134 who reported either witnessing misconduct or being told about it. The findings suggest that some “have personally experienced repeated incidents of wrongful conduct,” it says.

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Gabe Roth, executive director of Fix the Court, has advocated for more transparency in the judiciary’s system for handling misconduct complaints.

“You’re always going to have some level of a problem when you have judges judging other judges, when you have your friends and colleagues responsible for keeping you in line. Especially when there is life tenure,” he said.

But Roth commended the D.C. Circuit for seeking input from its employees. “As harrowing as some of the comments and stats are” in the survey, he said, “You can’t solve the problem if you don’t know what the problem is.”

Following publication of this report online, Srinivasan, the chief judge, initiated an investigation into the survey’s public disclosure and members of the House Judiciary Committee requested a copy of the survey as part of its “investigation of workplace misconduct in the federal judiciary.”

Misconduct complaints are not unique to the D.C. courthouse. In January, the Administrative Office of the U.S. Courts scrambled to contain the fallout after nearly three dozen judges’ staffers indicated on a training registration form that they had observed some form of inappropriate behavior.

Even with the judiciary’s new reporting procedures, the D.C. survey portrays some corners of the courthouse as demoralizing, with supervisors accused of fostering an environment that makes employees hesitant to speak up. As one law clerk responded: “The line between ‘demanding’ and ‘abusive’ workplaces is often blurry in the upper echelons of the legal profession; the D.C. Circuit seems to embrace, rather than resist, those dynamics.”

Under new rules adopted in 2019, court employees and judges are required to report suspected misconduct. Such policies, however, are “inadequate,” another respondent wrote, “because it places the burden to report such incidents on the least powerful members of the court family — court staff and chambers staff.”

“Unless and until judges are willing to address the harassing and bullying conduct of their colleagues,” this person surmised, “the harassment and bullying will continue.”

Four people stated in their survey responses that it is widely known that D.C. Circuit Judge Karen L. Henderson hires only men among the three or four people she selects each year for clerkships, yet court leaders have not acted. “Why would they act on reports of other discrimination?” one respondent asked.

The Post independently confirmed the identities of more than 70 clerks Henderson has hired dating back to 1990, when she was nominated to the appeals court. All but one were men.

Henderson, 77, declined to be interviewed but provided a written statement that said: “I give equal treatment and consideration to all applicants and hire law clerks based only on their credentials. To the extent any contrary impression exists, I regret that such impression exists and I will use my best efforts to address it.”

Court officials in late April opened a review of Henderson’s hiring practices, according to Judge David S. Tatel, who has led the effort. Tatel said in a statement that the court had reached “an informal resolution” with Henderson that involves, “among other things, a reporting mechanism for all hiring decisions.”

Law clerk alleges pregnancy discrimination after federal judge fired her 10 days before her baby was born

A judge’s suite of offices functions like a private law firm, with a unique culture that varies from one chamber to the next. The close-knit environment often leads to lifelong bonds. But the insular setting also creates barriers to misconduct reporting, according to the survey responses.

Employees urged the court to impose uniform standards so that all law clerks can schedule doctor’s appointments, for instance, or take sick days and attend family events such as weddings and funerals.

“What kind of modern professional job provides no vacation? Only one that sees subjugating oneself, one’s personal life, and one’s peace of mind as part of the deal,” wrote one former clerk. “It can hardly be a wonder that some judges treat their clerks with such disrespect: the court’s policies demand nothing more from them.”

The findings suggest that court employees are more likely to have experienced bullying, retaliation and race or gender discrimination rather than sexual harassment. Those who experienced bullying, according to the survey, were most likely to work in the District Court clerk’s office, the court reporters’ office or in the chambers of an appeals court judge.

Judge Judith W. Rogers speaks at her portrait presentation ceremony. © Jabin Botsford/The Washington Post Judge Judith W. Rogers speaks at her portrait presentation ceremony.

In the past three years, three judicial assistants have parted ways with D.C. Circuit Judge Judith W. Rogers, according to four people with direct knowledge of the former employees’ accounts. Like others, they spoke on the condition of anonymity to discuss sensitive personnel matters. All three assistants told court officials about alleged mistreatment by the judge, saying they were belittled and chastised for not meeting what they called the judge’s shifting demands, the people said.

All three were temporarily transferred out of Rogers’s chambers to other offices before either retiring or quitting, those familiar with the matter said.

Judiciary employees serve at-will, meaning they can be fired at any time for any reason. When Rogers informed one of the three former judicial assistants, Ebony Richardson, that her job would end last July, Richardson resigned and lodged a complaint.

“I was subject to constant ridicule and verbal abuse. She criticized my weight, my hair, and my personal health,” Richardson wrote in her resignation letter to Srinivasan, the chief judge, characterizing her employment with Rogers as a low point in her career. “I have felt bullied, disrespected, defamed, devalued and under constant duress.”

The court reached an agreement with Richardson to transfer her to the library for four months, records show. She was not able to secure a new court position during that time. In a recent interview, Richardson said the experience was disheartening.

“No one apologized to me; no one felt badly,” she said. “It was just like, get her out of here.”

Rogers, who has served on the court since 1994, declined to comment.

A portrait of Rogers is presented during the ceremony. © Jabin Botsford/The Washington Post A portrait of Rogers is presented during the ceremony.

Her judicial assistant before Richardson left the judge’s chambers after about six months and a transfer to the circuit executive’s office in 2019, according to the people with knowledge of the situation. Before that, Rogers’s judicial assistant Doreen Greenan also asked to be transferred, these people said.

At times, Rogers, 82, stopped speaking to Greenan and gave written instructions instead using yellow Post-it notes, a person familiar with the matter said, but the judge was prone to changing her mind. The assistant photographed the notes to remind Rogers of her previous instructions. Greenan did not file a formal complaint, this person said, because she was planning to retire.

Rogers has been recognized for her pathbreaking career: one of only 15 women in her Harvard Law School class; the District’s first female chief legal officer, who helped transform the city’s court system; the first Black woman to serve on the D.C. Circuit.

At a 2016 American Bar Association award ceremony, Rogers spoke with pride about the careers of her former law clerks and of her commitment to supporting young women and minority lawyers, who continue to face obstacles in their field.

Former law clerks praised her this month during a packed courthouse ceremony to unveil her formal portrait that was attended by Supreme Court Justice Elena Kagan and Attorney General Merrick Garland. She was celebrated as a generous, caring mentor who championed their careers.

Eight former law clerks who spoke to The Post described Rogers as always professional and fair. Nita A. Farahany, who clerked for the judge in 2004, said Rogers set clear expectations and high standards and treated judicial assistants as respected colleagues. She pointed to Rogers’s decades of positive relationships with law clerks and staff, including a former judicial assistant who worked with the judge for decades.

The breakdown in communication that the former judicial assistants described, Farahany said, may have been a generational difference.

“When somebody isn’t performing well, Judge Rogers is very direct and honest with them about that. I can imagine someone who is struggling with their work might believe that it’s mean to say, ‘You aren’t meeting expectations.’ That can be a hard truth to hear,” said Farahany, a Duke Law professor. “But I admire that Judge Rogers does so professionally with grace and courtesy.”

Rogers’s current judicial assistant has been on the job for about nine months.

A judge’s all-courthouse email sparks debate over removal of Confederate symbols Judge Laurence H. Silberman and others converse during the ceremony. © Jabin Botsford/The Washington Post Judge Laurence H. Silberman and others converse during the ceremony.

The survey responses also show lingering concern among staff about the handling of an all-courthouse email that characterized as “madness” proposed legislation to remove the names of Confederate leaders from certain government property. Judge Laurence H. Silberman complained in the June 2020 message about the “desecration of Confederate graves.”

The judge was preparing for a courthouse interview about his life and explained in the email how his ancestors had fought on opposite sides of the Civil War. The first person to respond was one of the few Black law clerks, who said his ancestors were enslaved in Mississippi.

Silberman, 86, thanked the clerk for his thoughtful reply and explained that his comments were directed only at an unsuccessful proposal related to the graves of Confederate soldiers, not to the removal of public monuments, according to a copy of the email.

In the survey, seven people expressed dismay that there were no consequences for what one respondent characterized as Silberman’s “insensitive and borderline racist” message.

Another respondent wrote, “It was surely inappropriate and inconsistent with judges’ responsibility to refrain from publicly commenting on matters of public concern that might come before them.”

Silberman said in a recent interview that the message was intended as background about his family for the people attending his interview. He emphasized that he never objected to taking down Confederate monuments and understands the subject’s sensitivity. Silberman said he has fought discrimination for decades, including his threat to resign from a top government post when the Nixon administration tried to prevent the nomination of a Black labor expert to serve as a Labor Department official.

“I don’t think I said anything that deserved an apology. I made very clear to the law clerk who did write that it was a misunderstanding,” Silberman said. “The suggestion that I was racist about it is unfair.”

One survey respondent said a follow-up email sent by Judge Robert L. Wilkins, who was interviewing Silberman, and the court’s subsequent step to schedule a follow-up discussion between Silberman and Wilkins, who is Black, was “seemingly handled as best as possible given the circumstances.”

To the other respondents, however, the incident was an example of a culture in which judges are not inclined to police their colleagues.

“Nothing seems likely to change unless judges police one another. But judges don’t especially want to police one another,” one respondent wrote. “I don’t know how to fix this problem.”

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