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Judiciary working group: Misconduct not simply isolated incidents

Last year's State of the Judiciary speech by Chief Justice John Roberts came shortly after 15 women accused veteran jurist Alex Kozinski of the 9th Circuit of ongoing sexual harassment and misconduct. Kozinski has since retired.

Roberts acknowledged that the #MeToo movement had "illuminated the depth of the problem of sexual harassment in the workplace," including at the judiciary. He promised a full evaluation of how the courts were handling the problem, saying that they must provide an "exemplary workplace," which requires ensuring that victims have "clear and immediate recourse to effective remedies."

This led to the creation of the Federal Judiciary Workplace Conduct Working Group, made up of eight federal judges and court administrators. In its recently published final report, it found that inappropriate conduct is not pervasive in the courts, but neither is it limited to isolated incidents. The most common types of inappropriate behavior include incivility, disrespect and crude behavior, although sexual harassment does occur.

"There is room for improvement in terms of both accessibility and transparency," reads the executive summary, "but the most significant challenge to accountability lies in the understandable reluctance of victims, especially law clerks and other temporary employees, to report misconduct."

The group found that the judiciary's two formal processes for resolving misconduct complaints, the Judicial Conduct and Disability Act and Employment Dispute Resolution (EDR) Plans, are effective when used. However, employees need additional options beyond filing formal complaints.

The recommendations include refining the codes of conduct and guidance documents applying to judges and judiciary employees and also for improving procedures for identifying and correcting misconduct.

The codes and guidance documents, for example, should make clear that judges have an affirmative duty to promote civility in the workplace; that they must neither engage in nor tolerate workplace misconduct and retaliation; and that they must act to curtail inappropriate conduct by others, including other judges.

For judicial employees, the group recommended clarifying that confidentiality should not prevent employees, including law clerks, from reporting misconduct or abuse. The summary also states that retaliation is itself serious misconduct.

When it comes to complaint reporting, the group recommends, for example. clarifying that workplace harassment meets the definition of misconduct. It also proposes that confidentiality and questions of legal standing should not deter reporting, and that judges should be told they have an obligation to disclose misconduct and prevent retaliation. Moreover, the model EDR plan needs to be updated and should apply to all classes of employees.

Senate Judiciary Chair Chuck Grassley (R-Iowa) criticized the report as vague and lacking in specific policy recommendations. He will be holding a hearing this week called "Confronting Sexual Harassment and Other Workplace Misconduct in the Federal Judiciary."

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