Roe v. United States
The federal judiciary employs more than 30,000 people, yet none of them are protected by the foundational federal statutes that prohibit workplace discrimination, retaliation, and harassment. The federal judiciary has its own internal mechanisms for reporting these types of misconduct. According to the complaint in this case, when Jane Roe, a former judiciary employee who allegedly experienced severe sexual harassment, retaliation, and sex discrimination, tried to make use of those mechanisms, she was stonewalled at every turn. Eventually, Roe filed suit against the federal agencies and individuals who purportedly mishandled her complaint, alleging violations of her rights to due process and equal protection under the Fifth Amendment.
Roe’s experience is far from unique, as recent congressional oversight has made clear. Testimony in both House and Senate hearings has shown that harassment and retaliation are frequent, persistent issues within the federal judiciary. Those same hearings have demonstrated the inadequacy of reporting mechanisms for victims of that abuse and retaliation.
As part of an effort to address these issues, both chambers of Congress recently introduced the Judiciary Accountability Act of 2021. Among other things, the bill would extend to judicial branch employees the application of federal civil rights statutes that prohibit discrimination based on race, color, religion, sex, national origin, age, and disability, create a federal statutory protection for whistleblowers in the judiciary, and establish offices with the authority to investigate workplace misconduct complaints in the federal judiciary. But while this bill, if passed, would go a long way toward remedying decades of injustices in the federal judiciary, it has no bearing on the question of whether Roe has a cause of action directly under the Fifth Amendment for sex discrimination.
CAC filed an amici curiae brief on behalf of Members of Congress, including several of the chief architects of the Judiciary Accountability Act of 2021, to clarify that the Court should not misconstrue this bill as bearing on the question of whether Roe’s constitutional claims can proceed.
Our brief makes two key points. First, the Judiciary Accountability Act of 2021 has no bearing on the question of whether a judicial branch employee has a previously recognized cause of action directly under the Fifth Amendment for sex discrimination. Some of Roe’s claims were brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, a Supreme Court case that held that a victim of a constitutional violation by a federal officer could claim damages against the responsible party even in the absence of a federal statute specifically authorizing such a claim. Since then, the Court has laid out a test for determining whether a plaintiff can bring a claim under Bivens, and nothing in that test suggests that pending congressional legislation is relevant to the inquiry.
Second, our brief explains that the Judiciary Accountability Act of 2021, if passed, would preserve any remedies that judicial branch employees currently have directly under the Fifth Amendment. To understand why, analysis of the Act need go no further than its plain text, which affirmatively states that the Act does not diminish or infringe on any cause of action under the Constitution.
August 27, 2021
CAC files amici curiae brief on behalf of Members of Congress4th Cir. Amici Curiae Br.