Workplace accountability within the federal judiciary

By Lori Atherton
Michigan Law, Quadrangle

Deeva Shah had only been in her U.S. district court clerkship for a short time when two female colleagues confided that they had experienced sexual harassment on the job. Shah offered to help them figure out how to report the harassment, which proved to be more difficult than she had initially thought.

“The reporting procedures were hard to find, they weren’t written in plain English, and it was unclear if the reports would be kept confidential,” Shah says.

Although the two women chose not to report the harassment because they were worried about the repercussions, Shah says it prompted her to reach out to Michigan Law professors to gauge if these were isolated incidents within the judiciary, or examples of a larger problem. Beth Wilensky, a clinical professor of law in the Legal Practice Program, connected Shah with former law clerks she knew to get their perspective.

“We started talking and realized the issue was pervasive,” says Shah. “We each knew women who had experienced some form of sexual harassment while clerking, and that something more needed to be done.”

Shah is a founding member with eight current and former law clerks who call themselves Law Clerks for Workplace Accountability (LCWA). In December 2017, the group sent a public letter to Chief Justice John G. Roberts Jr. and other prominent judicial members asking them to address sexual harassment and workplace misconduct within the federal judiciary. The letter was signed by more than 850 former or current clerks, legal professionals, and law students, and was released just days after Alex Kozinski, a high-profile federal appeals court judge, announced his retirement after being accused of sexual harassment by multiple former female law clerks.

“I personally knew two people who had experienced these issues. It was a transformational moment that had to be seized as a catalyst for systemic change in the ways the judiciary combats harassment,” says Shah of her reasons for starting LCWA and writing the letter.

Justice Roberts created a working group to review procedures within the judiciary for handling sexual harassment complaints. Three LCWA board members, Shah included, were invited to participate in several meetings held in early 2018 by the Federal Judiciary Workplace Conduct Working Group. LCWA also offered additional feedback in a memo to the working group after it published a final report and executive summary of recommended changes to the Judicial Conference of the United States, the Administrative Office of the U.S. Courts, and the Federal Judicial Center. Shah says that while the working group’s report, which was released last June, was encouraging, it didn’t adequately address certain practices and procedures that would improve the handling of and response to judicial workplace harassment.

“For example,” Shah notes, “it asks the Judicial Conference to create a transfer program, so that if someone has a credible accusation they can be transferred to another judge or to another court, but it’s unclear if the individual would have to work with the accused while the investigation is taking place. We asked for that to be clarified in our memo, among other points.”

Since then, LCWA—through its website, Twitter feed, various media outlets, and other activities—has continued to be outspoken about the significant changes it says are necessary to address the potential for harassment of employees who work in the federal court system. Shah spoke at the Federal Judicial Center’s National Workshop for District Court Judges about these issues, while LCWA member Claire Madill participated in a panel discussion about the #MeToo movement and judicial accountability at Michigan Law, along with alumnae Heidi Bond, ’06, and Leah Litman. LCWA also is working with law schools to help them develop resources that better address the issue of sexual harassment in the judiciary, and it is continuing its efforts to ensure that the Judicial Conference adopts some of the suggested changes the organization has put forth in its memos.

Shah, who finished her district court clerkship and now is clerking for an appeals court, emphasizes that LCWA’s mission isn’t to malign the judiciary; rather, it’s to help effect positive change within an esteemed institution.

“Law school gives you a lot of respect for the judiciary,” Shah says. “What’s driven me in law school and other jobs is a belief that you should leave the place better than when you started. Most of the judges we are working with care about justice and accountability—not just in the courtroom, but in their chambers and their buildings. They know we aren’t trying to smear the judiciary, but to make it a better place for those that want to be a part of it.”