HLS Prof. Leads Appeal to Reshape Harassment Reporting For Federal Courts Employees

Harvard Law School professor Jeannie C. Suk Gersen filed a brief last month on behalf of an anonymous federal courts employee in a case that could overhaul the way the federal judiciary handles allegations of harassment within its own halls.

Referred to as Jane Roe to protect her identity, the former assistant federal public defender in North Carolina sued the government in March 2020 claiming that the U.S. federal judiciary’s internal process for addressing reports of sexual harassment violates Due Process and Equal Protection under the Constitution.

Roe alleges that judicial officials failed to properly investigate her allegations of sexual harassment by a superior, forced her to continue to work with the alleged harasser, and spread false rumors about her that jeopardized her career prospects.

A federal judge in North Carolina dismissed the suit last December. Gersen is serving as Roe’s lead counsel on appeal to the Fourth Circuit.

The government has until later this month to file a response to the appeal.

Gersen said that after becoming familiar with the case, it was evident that the federal judiciary’s internal mechanisms for processing and addressing reports of harassment and misconduct were neither transparent nor fair.

“Looking at the facts of this case, it was very clear to me that what she was alleging was that she had been put through an extremely unfair process that was biased and didn’t have the basic indicia of fairness that the judiciary would certainly expect [from] other institutions that they sit in judgment of every day,” Gersen said.

In addition to Gersen’s representation, Roe has the support of four amicus briefs — written by members of Congress, two constitutional law professors, dozens of organizations, and a law firm, respectively.

Shea M. Holman, director of law and policy at The Purple Campaign, an organization dedicated to combating workplace harassment which helped file an amicus brief on the case, said that the court’s decision could have lasting implications for employees of the federal judiciary who report any form of harassment or discrimination.

“What’s important is that when Roe attempted to use the internal mechanisms that the federal judiciary currently has in place to report the conduct that she was subjected to, she wasn’t taken seriously in this process,” Holman said.

Instead of having Title VII protections, like most employees in American workplaces, Roe had to use the Fourth Circuit’s mandatory alternative dispute resolution process, called the EDR process, according to Holman.

“This process really denies federal judiciary employees basic due process and equal protection rights,” Holman said. “And the person who was the accused party was allowed to exercise authority over the process the whole time.”

“Essentially, the main theme of this amicus brief is that it’s really well past time for the federal judiciary to apply the same standards to their own workplace that it requires and enforces on every other employer in the country when it comes to protecting people from workplace harassment under Title VII,” Holman added.

Gersen said that when she learned of the case — which was brought to her attention by a former student — she recognized its relation to her own legal focus on what it means for institutions to be “fair,” and her work on institutions’ responses to sexual harassment, sexual assault, sex discrimination, and race discrimination.

“Having been really steeped in the issue of fair process for investigating and adjudicating a sexual harassment accusation, when I saw this case, I understood that this was exactly what this case was about,” Gersen said.

Deeva V. Shah, an associate at Keker Van Nest & Peters, a law firm which wrote an amicus brief on the case, said that while processes for addressing misconduct and harassment in the judiciary have improved, they remain insufficient.

“We still don’t think that the current procedures are enough to really remedy — incentivize reporting when people are faced with misconduct as employees of the federal judiciary,” Shah said.

The amicus brief Shah helped write, she said, demonstrates that instances of harassment and misconduct in the federal judiciary are not isolated incidents, an assumption that can discourage individuals from coming forward.

“What ends up happening is that anytime there is public knowledge of any allegation of misconduct, people are very quick to say, ‘Well, there’s one bad apple,’” Shah said. “So the brief we wrote on behalf of 26 current and former employees of the judiciary was meant to highlight that this is not a one-off issue.”

—Staff writer Emmy M. Cho can be reached at emmy.cho@thecrimson.com.