A federal working group has made two dozen recommendations for ways the judiciary can prevent and respond to workplace harassment, issuing a report that marks the end of the first phase of a U.S. Supreme Court-led initiative that began in response to the national #MeToo movement.
Chief Justice John Roberts formed the Federal Judiciary Workplace Conduct Working Group in December 2017 to “ensure an exemplary workplace for every judge and every court employee.” Roberts created the group through the 2017 Year-End Report on the Federal Judiciary, which was published just days after sexual harassment allegations were leveled against 9th Circuit Judge Alex Kozinski, who subsequently retired and apologized for his conduct.
Sexual harassment claims have also come to light in Huntington County, Indiana, where former Judge Thomas Hakes was accused of sex-based harassment against a county probation officer. Hakes’ case has been removed to the Indiana Northern District Court, where it is still pending.
In light of those nationwide issues, the working group met four times this year and interviewed current and former court employees at all levels of the judiciary. The group’s research found that inappropriate conduct is common in the judicial workplace, but incivility, disrespect and crude behavior are more common than sexual harassment.
The working group based its study on five key points that shaped the work of the Select Task Force of the U.S. Equal Employment Opportunity Commission Study of Harassment in the Workplace in 2016: leadership, accountability, policies, procedures and training. From those five points, the group found that:
• The judiciary’s leadership in addressing inappropriate conduct is not uniform across courts or supervisory levels;
• The judiciary needs to reduce barriers to reporting inappropriate behavior and provide alternatives for advice, counseling and assistance;
• Judicial conduct codes need to be refined to specifically address workplace harassment or incivility;
• Judicial employees need other options for guidance, counseling and assistance aside from filing formal complaints, and;
• The Federal Judicial Center and Administrative Conference of the U.S. Courts should refine training programs to place more focus on workplace civility.
Building on those five findings, the working group made a series of 24 recommendations to reach Roberts’ goal of creating an “exemplary workplace.” Some of those recommendations require further action by the Judicial Conference of the United States, while others can be or have been instituted by the FJC and the Administrative Office. The recommendations focus on three areas: judicial conduct codes, policies for reporting and responding to inappropriate behavior, and training.
Codes of conduct
Federal judicial conduct is governed by the Codes of Conduct for United States Judges and Judicial Employees. While the code currently indicates that judges and judicial employees have a duty to prevent inappropriate conduct, the working group recommended that the Committee on Codes of Conduct draft more precise language to indicate that:
• Judges have a duty to promote civility in the courtroom and courthouse;
• Judges should not tolerate inappropriate conduct, and;
• Judges have a responsibility to curtail inappropriate conduct, including by other judges.
Similarly, the working group recommended that the committee revise the language relating to judicial employees to indicate that:
• Judicial employees have a duty to promote workplace civility, avoid harassment and take action when they observe misconduct;
• Confidentiality obligations do not prohibit reports of abuse or misconduct, and;
• Retaliation against a person who reports misconduct is considered misconduct.
“The Working Group recommends that the Administrative Office and the FJC take on the challenge of reviewing all of their guidance respecting workplace conduct and civility to ensure that they provide a consistent, accessible message that the Judiciary will not tolerate harassment or other inappropriate conduct,” the report continues. “Many of those efforts are already underway.”
Identifying and correcting misconduct
Judicial employees can file complaints against judges pursuant to the statutory procedures laid out in the Judicial Conduct and Disability Act, while judges and judicial employees can be accused of misconduct through Employment Dispute Resolution Plans. The procedures laid out in the JC&D Act are implemented through the Rules for Judicial Conduct and Judicial Disability Proceedings.
As with the judicial codes of conduct, the working group recommended that the Committee on Judicial Conduct and Disability refine the language of the Conduct Rules to reflect that:
• Traditional “standing” rules do not apply to the JC&D Act, which means a person does not have to be a victim of misconduct to report it;
• Procedural rules are congruent with changes made to the Code of Conduct for United States Judges;
• Confidentiality obligations do not hinder misconduct reporting, and;
• Judges have obligations to report misconduct and to protect complainants from retaliation.
Looking specifically to EDR plans, the working group recommended to the Committee on Judicial Resources that the judiciary’s Model EDR Plan should be amended to accomplish several goals, including:
• Creating more user-friendly EDR plans;
• Ensuring a uniform scope of coverage throughout the judiciary;
• Aligning references to sex discrimination with established legal definitions;
• Ensuring that chief district and bankruptcy judges report actionable misconduct to the chief circuit judge;
• Extending the time to initiate a claim from 30 days to 180 days after a complainant learns of misconduct, and;
• Improving the training and qualifications of EDR coordinators.
Aside from the formal processes available through the JC&D Act and EDR plans, the recommendations also call for informal assistance for victims or witnesses of inappropriate conduct, including:
• Establishing the Office of Judicial Integrity;
• Establishing circuit court directors of workplace relations, modeled after the 9th Circuit, and;
• Identifying local sources at district-court levels.
Education and training programs
Finally, the working group’s recommendations called for the FJC and Administrative Office to improve existing workplace civility training and education programs by:
• Requiring new judges and employees to complete workplace standards training initially and refresher courses periodically;
• Developing advanced training programs designed specifically around workplace civility, and;
• Evaluating educational programs and tailoring advanced programs to specific groups.
“In conclusion, the Judiciary should aspire to be an exemplary workplace, taking strong affirmative measures to promote civility, minimize the possibility of inappropriate behavior, remove barriers to reporting misconduct, and provide prompt corrective action when it occurs,” the report concludes.