Caitlyn Clark is like many other women in the workforce. She says her job was going well until she told her boss she was pregnant. Clark claims shortly after that, she was fired. Thousands of women would find her story familiar, but there are big differences, too.

“Do as I Say, Not as I Do”

Caitlyn’s employer isn’t covered by state or federal anti-discrimination or anti-retaliation laws –because she worked for the federal court system as a judicial law clerk for a District Court Judge in Georgia. Law clerks are not covered under federal anti-discrimination and anti-retaliation laws and employees may only proceed in the federal system; the state courts are closed to them 100%.

If you think a “law clerk” is someone with a low-level job dealing with paperwork, think again. Rather, a judicial clerk plays a critical role in drafting court opinions and decisions on motion, doing legal research, writing, and other “heavy lifting” to make the Judge’s job easier.

Although there’s an internal system to handle discrimination claims, a Judge will never be sued for violating the federal Pregnancy Discrimination Act — because the law doesn’t cover federal court employees (neither are private employers with fewer than 15 employees).

If a judge is willing to face repercussions from an internal investigation (unless s/he quits or is impeached, a federal judgeship is a lifetime job), they can discriminate or retaliate based on an employee’s pregnancy all they want. They may sign off on a decision finding a federal or private sector employer liable for discriminating against a pregnant employee, but the law does not apply directly to their chambers — and they may not do the right thing.

Clark was part of an exceptional Congressional hearing in March of 2022, according to the Washington Post. She and two other former court employees testified before the House Judiciary Committee to urge the passage of better federal employee protections against discrimination and retaliation.

One of the other former federal employees, a public defender named Caryn D. Strickland, said after she reported sexual harassment and discrimination by her supervisors, she was “stonewalled at every turn, as judiciary officials protected my perpetrators and punished me…If their position prevails, then I will have absolutely no remedy for the denial of my right to be free from sex discrimination.”

Internal Investigation Finds Clark Wasn’t Discriminated Against. Was it Thorough Enough? Was it a Whitewash?  Was Clark not discriminated against, or is her former employer blaming the victim?

In January of 2020, shortly before Clark disclosed her pregnancy to judiciary staff and her Judge, Clark had received a raise and an offer to extend her two-year clerkship with federal Judge C. Ashley Royal of the Middle District of Georgia. According to the Washington Post, Clark claims the Judge’s longtime career clerk became highly critical of Clark’s work, and Judge Royal told Clark she lacked “intensity” for the job. She was fired ten days before her baby was born.

Judge Royal denies discriminating against Clark, claiming her allegations “sandbagged” him. He says Clark wasn’t meeting deadlines and the quality of her work was poor. Because she couldn’t keep up with her workload, he had to hire another clerk, he claims, which was unusual.

Since Clark can’t file a lawsuit, she went through the court system’s investigation process. It initially found in Judge Royal’s favor. She appealed the decision. Again, the court system found that the facts (as the 11the Circuit Court of Appeals found them) show that pregnancy discrimination and retaliation did not occur. The fact this decision was released just hours before Clark’s Congressional testimony may have been a coincidence or an effort to make her look bad.

Clark may not have been discriminated against. Discrimination and retaliation claims can be hard to establish because you need to prove a person’s intent for taking specific actions. Or perhaps Clark’s employer is trying to protect one of its own judges and looking the other way.

The 75-page investigative report spells out why Clark was a lousy employee and that she knew it. Though being a lousy employee won’t help your pregnancy discrimination claim, that shouldn’t end the inquiry either.

If you can show equally lousy or worse employees not of your protected class (in this case, pregnant women) were treated better, then it’s a way to show discriminatory or retaliatory intent. You can also look into the treatment of current and past employees of the same protected basis. It doesn’t appear the court system made much effort to look at comparators.

The report claims Clark named two people who are comparators, her male replacement and another female clerk who was pregnant while working for Judge Royal.

An internal investigation should go beyond the evidence an employee or ex-employee provides. They only know what happened to them and the treatment of others they witnessed. They usually don’t have access to other employees’ personnel files. You only get that in litigation, once a lawsuit has been filed. In this case, by law, Clark was not entitled to sue for damages.

Beyond these two people, potentially every employee Judge Royal supervised in the last twenty years could be comparators:

• How many were pregnant at the time? What happened to them?
• How many lousy employees did he have? What happened to them?

If pregnant women were disproportionately fired or disciplined and lousy employees other than the pregnant ones kept their jobs, that would be bad news for Judge Royal. If pregnant employees were treated fairly and lousy employees didn’t keep their jobs, that would be bad news for Clark.

Since the investigator didn’t dig very deeply, we don’t know the whole story. A shallow internal investigation is also utterly normal because many investigators choose (A) not to “rock the boat,” (B) not to make someone in a position of power look bad, and (C) to circumvent potential liability.

Since Clark can’t file a lawsuit, others’ personnel files aren’t subject to discovery (where both sides exchange documentary evidence), so she and her attorneys can’t see the whole story either. This is a good reason anti-discrimination and anti-retaliation laws should cover federal court employees, just as they have applied to other federal government workers for 57 years!

Kingston Law Group: Get the Employment Law Help You Need from Attorneys You Can Trust

If you have any questions about employment discrimination, whether or not you’re a federal employee or, call the Central Jersey law offices of Kingston Law Group at 609-683-7400, or contact us online for a near-term reduced fee initial consultation. We will listen to your facts, explain applicable laws, and advise you on how best to obtain legal, economic, and social justice.

Federal laws governing employment discrimination are numerous, complex, and difficult for most people – including most lawyers – to understand. We have represented federal employees for more than a quarter of a century. We will present you with your best choices to protect your legal rights and interests. Call or write us today. You will be glad you did.