The #MeToo movement seems to have swept into every industry and sector, from Hollywood to Washington. Sexual harassment allegations have hit the judiciary as well, shining light on problems within the courts themselves. Now that California Federal Circuit Court Judge Alex Kozinski has stepped down, people within the American Bar Association are calling for change nationwide.

In this blog post I will review the sexual harassment allegations against United States Circuit Court Judge Alex Kozinski. I will explain whether Title VII applies to professional associations and discuss what some are saying bar associations should do to respond to the #MeToo movement.

Allegations Against Judge Kozinski Date Back Decades

Circuit Court Judge Alex Kozinski has served as a U.S. Court of Appeals judge for the 9th Circuit in California for 35 years, a term that included a rotation as chief judge. He had a public reputation for writing irreverent and sometimes humorous opinions, and being in the public eye. He also had a more private reputation for behavior that sometimes crossed the line from bad jokes to sexual harassment of his law clerks and other staff.

In the wake of the #MeToo movement, six of those clerks came forward, telling the Washington Post about their experiences with the judge. Heidi Bond, who clerked for Kozinski in 2006 and 2007, claimed that the judge had called her into his office and asked her opinion on whether pornography appeared photoshopped.

“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.

Emily Murphy, who worked for a different 9th Circuit judge, reported that Judge Kozinski approached her and several other clerks at a reception in San Francisco in 2012. She alleged that he suggested she exercise naked and kept steering the conversation back to that idea.

“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”

Both clerks have emails and other evidence supporting their allegations. Others shared similar stories anonymously for fear of retaliation by Kozinski or others in the judicial system.

The Washington Post article isn’t the first time Judge Kozinski has faced complaints about sexual behavior at work. In 2008, the Los Angeles Times reported that he had been censured after a judicial investigation found he had carelessly used a private server to distribute crude, sometimes sexually themed jokes.

Kozinski initially denied any wrongdoing and promised to fight the sexual harassment allegations. However, on December 18, 2017, he announced his immediate retirement saying:

“I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary.”

Reporting Sexual Harassment Within the Judiciary

Federal employees, including judicial clerks in the federal court system, are entitled to protection against sexual harassment and gender discrimination under Title VII of the Civil Rights Act. However, none of the women who spoke to the Washington Post filed formal complaints against Judge Alex Kozinski. According to Bond, Kozinski stressed the idea of complete judicial confidentiality. Whatever was discussed in chambers could not be revealed to the public, even when the comments had nothing to do with the cases before the court. She saw him to be in complete control.

The structure of a judicial clerkship makes employees particularly susceptible to retaliation when they complain about sexual harassment at work. Clerkships are temporary by nature. At the end of their terms, clerks rely on good recommendations from their judges to find new positions in the legal field. When a clerk has filed a sexual harassment claim, the chance for a positive referral grows dim. While this form of retaliation is illegal, it also has practical implications that could make it difficult for clerks to find new jobs. Bond and other clerks feared what Kozinski might do if they filed a complaint, particularly because he was unlikely to be fired over it. In fact, Murphy told the Washington Post that she chose not to file because the complaint would first go to Kozinski himself before being referred elsewhere.

American Bar Association Article Calls for Change

In response to the allegations, and Kozinski’s sudden retirement, the American Bar Journal published an article, “The judiciary must deal with #MeToo–and with what I know” by Nicole Vanderdoes, chief counsel of the ABA Standing Committee on the American Judicial System. She called on bar associations and the judiciary to be prepared to respond to #MeToo-style complaints.

“And lawyers and judges need to be prepared for how to respond and maintain the integrity and independence of the judiciary. Because if it looks like the legal system is protecting its own, it will lose all credibility. How can you trust a judicial system that doesn’t hold officers of the court accountable?”

Vanderdoes acknowledged there are “very few men who have more power than a judge” and that can make allegations of sexual harassment against them particularly difficult to address. She emphasized the importance of confidentiality and integrity during the investigative process. When matters do go public, she called on bar associations to respond with clarity and objectivity to allegations against judges and influential attorneys and to dispel any impression of favoritism within the system.

When the #MeToo movement involves allegations against a member of the judiciary, the power dynamics and political ramifications can make it hard to even consider filing a formal complaint. But employees of federal offices have just as much right to civil rights protections as anyone else. At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys understand the delicacy needed to handle cases involving public officials. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.