Informal Option Proposed to Address Sexual Harassment in U.S. Judiciary

A working group conceded this week that the federal judiciary’s policies for addressing complaints of sexual harassment and workplace abuse are inadequate.

However, the Federal Judiciary Workplace Conduct Working Group issued a report that makes a troubling recommendation and fails to address what to do about federal judges with lifetime tenure who engage in sexual harassment and bullying.

The group suggests the 30,000 employees of the U.S. judiciary would be more likely to complain about abuse and harassment if  “less formal mechanisms” were established to file complaints. This less formal option would provide complainants with “guidance, counseling, assistance and relief.” The group suggests it be “calibrated to the nature of the conduct” and “should exist at the local, regional and national levels.”

The informal option is troublesome because it is not transparent and contributes to a lack of accountability that is particularly imperative in a male-dominated workplace to halt serial sexual harassment and workplace abuse.

The working group was formed by the Administrative Office of the U.S. Courts at the request of Chief Justice John G. Roberts, Jr. and consists of federal judges and senior Judiciary officials. Notably absent on the panel are current or former law clerks, low-level workers who are most vulnerable to abuse and representatives from the public.

In 2017, a total of 66% of active U.S. District Court judges were male.

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U.S. Supreme Court Decidedly Pro-Business

justice-scale-761665_1This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. 

And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

  • In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift  in violation of the Fair Labor Standards Act.  The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class  action lawsuit..
  • In Wal-Mart v. Dukes, the Court in  2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination  in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
  • In Knox v. Service Employees International Union, Local 1000,  the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that  that  non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
  • In  Gross vs. FBL Financial Service, Inc.,  a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a  significantly higher rate than non-employment cases before they ever to get a jury.