Thurgood Marshall Federal Judiciary Building in Washington, D.C., Aug. 21, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

A working group of federal judges and judiciary officials reported on Monday that inappropriate conduct in the federal judicial branch is “not limited to a few isolated instances,” and significant reforms are needed.

“Of the inappropriate behavior that does occur, incivility, disrespect, or crude behavior are more common than sexual harassment,” the 144-page report stated. Still, the report said misconduct in the judiciary is not “pervasive.”

Created in the aftermath of revelations about Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit and his inappropriate conduct with law clerks and others, the nine-member working group acknowledged that “power disparities” between judges and employees may deter workers from making complaints for fear of retaliation or violation of rules of confidentiality.

“Some elements of the judicial workplace can increase the risk of misconduct or impose obstacles to addressing inappropriate behavior effectively,” the report stated.

Former clerks and others who came forward about Kozinski as part of the #MeToo movement said procedures for making complaints were ambiguous or difficult, and that Kozinski used the culture of confidentiality to silence his victims. Kozinski resigned in December.

“There is room for improvement in terms of both accessibility and transparency, but the most significant challenge to accountability lies in the understandable reluctance of victims, especially law clerks and other temporary employees, to report misconduct,” according to the report. “Judges have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”

Another recommendation involved the judiciary's codes of conduct which, the report said, “should more clearly communicate the rights and responsibilities of employees, including the scope of confidentiality and the availability of remedial procedures.”

The report stressed that “confidentiality obligations do not prevent any employee—including law clerks—from revealing abuse or reporting misconduct by any person,” and that “retaliation against a person who reports misconduct is itself serious misconduct.”

The working group also called for establishment of an internal Office of Judicial Integrity that would “provide counseling and assistance regarding workplace conduct to all judiciary employees through telephone and email service. This office should provide advice on a confidential basis to the extent possible.”

Chief Justice John Roberts Jr. last year asked James Duff, director of the Administrative Office of the U.S. Courts, to form the working group to evaluate the federal judiciary's codes of conduct and procedures for reporting and investigating inappropriate behavior in the workplace.

On the same day as Kozinski's retirement, the handbook for federal law clerks was revised to make clear that clerks and other judicial employees could file sexual harassment complaints without violating the confidentiality rules.

Two days after Kozinski's retirement, a letter with 695 signatures, including 480 former clerks, 83 current clerks and 120 law professors, was sent to Roberts, Duff and Judge Anthony Scirica, chairman of the Committee on Judicial Conduct and Disability, urging the federal judiciary to address workplace harassment and offering suggestions.

In his year-end annual report, Roberts wrote: “Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.”

In March, the working group issued an interim report containing nearly 20 reforms to address concerns about workplace harassment in the federal judicial system.

Ninth Circuit Chief Judge Sidney Thomas accepted recommendations from a special committee that he formed in December to examine workplace policies and procedures for the circuit's employees.

Those changes include establishing a director of workplace relations to oversee workplace issues that arise within the Ninth Circuit courts and provide “discrimination and sexual harassment training,” according to the release by the appeals court.

The report issued Monday encouraged other circuits to enact changes similar to the Ninth Circuit's.

The D.C. Circuit said in a statement Monday that it was forming a workplace conduct committee, to be led by Circuit Judge Nina Pillard and Senior District Judge Rosemary Collyer. The committee, according to the statement, “has already solicited and received a set of recommendations from a group of former law clerks.” The committee will begin to address the recommendations that were issued Monday.

 

 

Read the judiciary's workplace report below:

 

Read more:

Ninth Circuit Adopts #MeToo Recommendations Against Sexual Harassment

Federal Judiciary Updates Congress on Workplace Misconduct Review

Newly Amended Law Clerk Handbook Affirms Harassment Complaints Are Permitted

Federal Judiciary Unveils First Reforms From Harassment Working Group

Roberts Tells Judiciary to Review Safeguards Against Workplace Misconduct

Judiciary Closes Alex Kozinski Probe, Saying It Can't 'Do Anything More'