Judge Alex Kozinski’s opinion in a 2001 sexual harassment case is alarming.

Judge Kozinski’s Opinion in this 2001 Sexual Harassment Case Is Even More Alarming Now

Judge Kozinski’s Opinion in this 2001 Sexual Harassment Case Is Even More Alarming Now

The law, lawyers, and the court.
Dec. 15 2017 8:04 PM

Judge Kozinski’s Opinion in this 2001 Sexual Harassment Case Is Even More Alarming Now

Alex Kozinski has enormous power over his law clerks. He has even more over litigants who come before him.

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Ninth Circuit Appeals Court Judge Alex Kozinski looks on during a House Judiciary Committee hearing on March 16, 2017 in Washington, D.C.

Justin Sullivan/Getty Images

In the past week, major publications, including Slate, have published stories alleging that Judge Alex Kozinski routinely harassed his female law clerks, employees, and women in his professional orbit.  Hearing these stories finally come out was a relief for me, as it was for many others who had seen his behavior firsthand. But it also made me think immediately of a woman whose life Judge Kozinski changed without even meeting her.

Melody Swenson started working as a janitor for the Postal Service in 1977, when she was 18.  Born deaf, she communicated in sign language and read with great difficulty.  She nevertheless worked her way up to being a mail sorter by August 1993, when she attracted the attention of a co-worker named Philip Feiner. Feiner subjected her to a stream of unwanted attention over several months. He told her that she had a “beautiful sexy body,” that he was “watching her ass moving,” and that he dreamed about her at night. He signed crude “hourglass” gestures while mouthing the word “sexy.” He gave her an unwanted gift. He asked to kiss her, and even grabbed her once.

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When a coworker complained to management on Swenson’s behalf, a supervisor took Swenson aside and told her to handwrite a complaint, because “we don’t have time to deal with an interpreter.” (Swenson’s statement, which appears in the public record, reveals the limits of her writing ability.) The supervisor then moved Swenson—not Feiner—to another work area, against her wishes and without explanation. After a union representative helped Swenson complain that this was unfair, the Postal Service assigned another supervisor to conduct an “official investigation.” He interviewed Swenson and Feiner and concluded that “there was no way for her to back up her story.”  He never interviewed anyone else.

Swenson took her claims to the Equal Employment Opportunity Commission in 1994.  An administrative judge conducted a three-day hearing, and concluded not only that Feiner had harassed Swenson, but that the Postal Service’s investigation had been inadequate. But the Postal Service was allowed to reject the EEOC’s findings, and it did. Feiner was never disciplined.

Swenson continued to encounter Feiner on occasion.  Scared and unwilling to suffer his presence further, she finally quit her job in 1995, ending 18 years with the Postal Service.

Swenson later sued the Postal Service in federal court, claiming it had mishandled her harassment claims. With the help of an interpreter, she told her story again, this time to a jury. Her supervisors and co-workers testified and gave statements. Feiner took the stand. After a 5-day trial, the jury found that the Postal Service had violated Title VII of the Civil Rights Act, and awarded Swenson $125,000 in damages. Undaunted, in 2000, the Postal Service appealed to the Ninth Circuit.

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One of the three judges on the panel was Alex Kozinski.

After hearing the arguments, Judge Kozinski wrote the majority opinion in Swenson v. Potter. (Disclosure: I clerked for William Fletcher, the dissenting judge in this case. Judge Fletcher did not encourage me to write this letter but I did consult with him to confirm that I have upheld my duty of confidentiality.) The decision takes the most dramatic step an appeals court can take in an individual case: it sets aside the jury’s verdict. The legal standard for doing so is very high. The appeals court is supposed to draw all inferences, view all facts, and weigh all evidence in favor of the party who won in the trial court. Under most circumstances, it must even ignore evidence that supported the loser.

Judge Kozinski’s opinion recognizes this standard. But it relentlessly questions Swenson’s story. It points out that she did not, at first, “tell Feiner that his attention was unwelcome,” not that she did complain to her co-workers. It highlights the fact that supervisors couldn’t confirm Swenson’s story, not that they failed to interview co-workers she identified—one of whom, the jury learned, had noticed Feiner’s “pattern of victimizing women who did not communicate in English well.” The opinion observes that the supervisors offered to transfer Swenson to another city, then hints that her refusal proves Feiner wasn’t so bad after all. It highlights Feiner’s “unblemished” disciplinary record, not that Swenson had never complained of harassment before. It calls Swenson’s claims “weak and disputed.”

A raised eyebrow. A rolled eye. This woman was overreacting. Her supervisors did all they could.

If one believes Heidi Bond, Emily Murphy, Dahlia Lithwick, and the other women who have come forward, Alex Kozinski had no business judging this kind of case.* How could any woman alleging discrimination get a fair shake from a judge who delights in making women uncomfortable and who does not seem to think that sexual harassment is a problem, if it exists at all?

Alex Kozinski has enormous power over his law clerks. He has even more over the litigants who come before him. When assessing how to respond to these allegations, we must think of them, too.

*Correction, Dec. 16, 2017: Due to an editing error, Emily Murphy was originally misidentified as Erin Murphy. (Return.)

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Sam Sankar is a graduate of Berkeley Law and a former law clerk to Judge William Fletcher, Judge Louis Pollak, and Justice Sandra Day O’Connor.