Why Not "Just Say No" to Sexual Harassers?

by Sherry F. Colb

My column for this week examines the case of Carpenter v. United States, which presents some important Fourth Amendment privacy issues. In particular, I consider Justice Gorsuch's peculiar reluctance at oral argument to utter the word "privacy" in connection with the Fourth Amendment right against unreasonable searches, a reluctance that I suggest has substantive implications. In this post, I want to discuss a different sort of privacy invasion and how an experience of my own might bear on the question of why people do not always contemporaneously protest this type of invasion.

When police want to search a person's car (or suitcase or house), they frequently ask for their target's consent. This is at least in part because an officer's desire to search does not always coincide with probable cause, a warrant, or whatever else might be required for a lawful search to take place. If a suspect gives consent to the police, however, then that consent renders the search that follows legal even in the absence of any ex ante factual basis for suspecting the target of wrongdoing. Consent trumps a lack of probable cause.

The Supreme Court once had occasion to consider whether the consenter in a Fourth Amendment scenario needs to be aware of her right not to consent as a prerequisite to the validity of her consent. The Court ruled that there is no such prerequisite. Relatedly, it rejected the contention that police should have to give a warning when asking for consent (like "you have the right to refuse to allow me to search your car and I will respect the exercise of that right"). Perhaps people already know that they may refuse consent to a search. If so, then why do they consent to searches, particularly those that will almost certainly uncover evidence of criminality?

A similar question arises in cases of sexual harassment. If men (and it is almost always men, though not all men) are directing unwanted sexual attention at their employees, then why aren't victims telling their employers to stop? Though police are specifically asking for permission to search and bosses are not asking for permission to touch or otherwise sexualize their employees, both cases involve what may look like a failure of victims to assert themselves. What could account for this seeming failure? I would suggest that it is a fear of confronting an authority figure, one who is either armed (as a police officer is) or in a position to help or hinder one's future chances of success (as an employer is).

Consider the case of a judge who has taken a sudden and immediate retirement, Alex Kozinski. Kozinski's former law clerks and others had lately leveled fifteen (at last count) accusations of sexual misconduct against the judge. He had until recently been one of the most powerful federal judges in the country, one who regularly placed his clerks with U.S. Supreme Court justices. Kozinski reportedly repeatedly showed pornography to one clerk and asked her whether it turned her on. There are many more accusations, some of which involve unwanted touching. I suspect that the judge believed he was hosting a chambers filled with exciting sexual electricity. But most (maybe all) female law clerks and at least a large number of males as well would have known that the behavior at issue was not only unwelcome but upsetting, creepy, and potentially frightening. So why didn't law clerks tell Judge Kozinski that far from titillating or humorous (as he might have imagined it was), they found his behavior disgusting and thoroughly unwelcome? Though I was fortunate enough as a law clerk not to witness or experience the kind of behavior for which Judge Kozinski will now be remembered, I can understand why his law clerks would have found it difficult to say no. By extension, I can appreciate why people approached by police officers asking for consent might also feel unable to refuse.

Both of my clerkships were completely free of sexual harassment. The first judge for whom I clerked sat on the U.S. Court of Appeals for the Second Circuit. He had integrity and would, I believe, never have even considered doing the things that a large number of Judge Kozinski's law clerks have accused their judge of doing. My judge was a warm and supportive boss, and he treated his employees, both male and female, with respect. Yet I still felt intimidated by the power and authority that he wielded, a feeling that became salient to me one day toward the end of my clerkship.

I found out on this day that I was eligible for a substantial raise. To qualify for the raise, you had to fulfill two criteria: first, be admitted to the bar; and second, have worked for a year (I believe it was a year) in a legal job. I was admitted to the bar by this time, and I was soon going to have been a law clerk for a year. I would then be taking my four weeks of paid vacation (a vacation that I was asked to delay until the end of my year-long clerkship), and in that four weeks, my raise would amount to a lot of money. I asked the judge's assistant to give the raise application to the judge to sign, and I fully expected an obstacle-free path to a month-long better salary. There did not seem to be anything discretionary about it--I plainly fulfilled the two criteria, so I would get it.

My first indication that things were not going to go as smoothly as I had anticipated was when the judge's assistant came into the clerk area and told me that I really was not eligible for the raise because I was not engaged in "legal work," as was required. I was puzzled by this claim, and I said something like, "of course this is legal work; what else could it be?" She responded by saying something along the lines of "Well, he's never given anyone this raise before."

The judge then called me into his chambers. I went in, worried by now that I might not get the raise. I sat down at the table where the judge would regularly have discussions of cases with the law clerks. He asked me why I thought I should get the raise, and I explained that it was automatic for people who satisfied the two criteria, which I did. The judge told me that he had never given anyone this raise before, and he added that he tries to live by the rule that says you should not do anything that would embarrass you if it appeared on the front page of the New York Times (a rule that it would have behooved Judge Kozinski to follow).

My judge continued that it might look a little embarrassing if the New York Times ran a story that said that I received a raise just in time for my monthlong vacation. I thought in my head that I could not imagine a readership for such a story, but I said that I took my vacation at the end of my clerkship because of his request that I do so but that the timing should not affect whether I got a raise to which I was entitled. I could as easily have taken vacation a month earlier, and the raise would then coincide with a month of work, but I would be no more entitled to the raise in that situation. I added that it might look embarrassing if the New York Times ran a story about a group of federal judges flying to Hawaii on the government's dime for a judicial conference. The judge looked at me with shock on his face. I then added, hoping this would seem more deferential, that I needed the extra money because visiting my fiance every week was expensive. The judge responded that now I was making him feel guilty, and he asked me to return to my work, and he would think about it.

I should stop to and say what was going on in my head during this conversation with the judge. First, I was terrified and had a very strong instinct telling me that I should not be having this exchange with him at all. I had not taken the job for the big bucks, and alienating the judge could only hurt my career. And for what? What the hell was I doing?! On the other side was the fact that I did not, when in my twenties, like to defer to authority. If I thought something was mine, such as the raise at issue, I would insist on having it, the consequences be damned. I knew that the conversation with the judge was a huge mistake, but I felt annoyed that anyone would want to prevent me from receiving what was mine.

The judge ultimately decided to give me the raise I requested. Indeed, I learned later that after my year, he gave all eligible law clerks the raise each year, without any argument. His assistant must have told the law clerks about my conversation with the judge, because one of them thanked me specifically and said that because of my "making the case" for the raise, they could all depend on receiving it.

This is not an important story. No one did anything especially noteworthy here. I did not insult the judge or say anything improper, and he was just thinking aloud about an issue, seemingly for the first time, and ultimately came to the right conclusion about it. What is remarkable is the level of anxiety and dread that accompanied my own decision to push for a raise, a raise that was not even performance-related and would not come out of the pockets of anyone in chambers. The reality is that my choice was so reckless that no one clerking for the judge in the three decades before me had dared make the same choice. And clerks after me were grateful not to have to do so either. And all of this was not about a decision to go sky-diving or join the military during wartime; it was about asking for what was supposed to be an automatic raise. Yet what I had done was almost inexplicably stupid, and the only reason I had done it is that I was somewhat reckless in my twenties.

If I was so nervous about asking the judge for my raise, just imagine how a law clerk would feel about telling her judge that his sexual overtures were unwelcome. If Alex Kozinski is like some other (non-judicial) men in authority, he truly thought that his law clerks found his sexual attentions flattering and desirable (with the possible exception of the woman who said no to his alleged invitation to have sex at a motel, a refusal to which he reportedly responded by grabbing and squeezing the woman's breasts). Telling a boss that his sexual fantasy is both mistaken and oppressive is a whole lot more frightening than telling a boss that giving you a raise to which you are entitled will most likely not embarrass the court. And scarier still may be telling an armed police officer that you are not going to do the cooperative thing and agree to the search he proposes to conduct.

It is difficult to tell any boss that his sexual advances are unwelcome. In doing so, an employee has to fear not only losing her job but also losing a reference for future jobs. In a clerkship, this is all heightened because your boss is literally a JUDGE. He is quite comfortable with passing judgment on those who stand before him, and his strong motivation will be to visit a negative judgment on anyone who would reject his come-on, particularly because he must know, somewhere deep down, that the come-on is thoroughly inappropriate. That he proceeds with his plans anyway shows a commitment to sexual harassment that one "no" would seem unlikely to disrupt. Though there are many stereotypes about "a woman scorned" and what she is liable to do, the actual reality, hiding in plain sight, is that it is "a man scorned" who rightly inspires fear, especially when the man is wearing a black robe.