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Unprotected but Not Forgotten: A Call to Action to Help Federal Judiciary Employees Address Workplace Sexual Misconduct

By Theresa M. Green. Full Text. 

Federal judiciary employees are not currently protected by Title VII of the Civil Rights Act of 1964—the federal statute that prohibits workplace discrimination, retaliation, and harassment based on, among other things, a person’s sex. In effect, this means federal judiciary employees are not adequately protected from sexual misconduct. Like any workplace, however, sexual harassment is a persistent issue within the federal judiciary, and the current mechanisms to address the abuse are inadequate.

This Note explores the federal judiciary’s sexual misconduct problem and critiques the only two mechanisms through which a federal judiciary employee can address workplace sexual harassment: the Judicial Conduct and Disability Act, and the Employment Dispute Resolution program. In demonstrating the deficiencies of both mechanisms, this Note exhibits how federal judiciary employees are extremely vulnerable to a systemic sexual abuse of power by judges and other judiciary officials. The prevalence of sexual misconduct in the federal judiciary, lack of Title VII protections, and failures of current working avenues to address the misconduct necessitate finding a better solution.

Finally, this Note proposes two solutions that should be pursued together, given their deficiencies on their own: (1) to expand Title VII’s protections to federal judiciary employees; and (2) to permit federal judiciary employees to bring implied causes of action through Bivens under the Fifth Amendment to assert their right to be free from sexual misconduct. Both proposals would not only provide federal judiciary employees with workplace protections available to employees in other employment contexts, but they would—more importantly—also ensure that no one in the federal judiciary is treated as above the law.