Workplace conduct group improves conditions in federal courts

By late 2017, the #MeToo movement had landed on the courthouse steps of the federal judiciary.

Allegations that 9th U.S. Circuit Court of Appeals Judge Alex Kozinski had engaged in inappropriate workplace behavior with his law clerks — which ultimately led to his resignation — prompted U.S. Chief Justice John Roberts to announce that the federal judiciary would evaluate its standards of conduct and procedures for investigating and correcting inappropriate workplace behavior.

In his 2017 year-end report, he ordered the creation of a working group to also address concerns of sexual harassment in the federal judiciary.

The Federal Judiciary Workplace Conduct Working Group launched in January 2018. Among its nine members is Chief U.S. District Judge Julie A. Robinson of the District of Kansas, who is based in Kansas City, Kansas.

Robinson said the group has made strides to improve the workplace environment for all who work in the federal courts — whether they are law clerks or employees serving in probation or administrative positions.

From its beginning, she said, the working group felt obligated to find solutions because the federal judiciary often is tasked with helping litigants sort out their own workplace disputes.

“We understand this may be our workplace, but it’s one that serves the public,” she said.

‘It was hidden’

When it comes to her own background as a woman getting her start in the legal world in the early 1980s, Robinson has nothing but positive memories of her clerkship with U.S. Bankruptcy Judge Benjamin E. Franklin.

She had limited exposure to the clerks of other chambers to hear about their experiences.

She also noted that workplaces were different then in terms of people being willing to speak out about harassment and abusive behavior.

“It was a time when people wouldn’t have talked about it,” she said. “It was hidden.”

Regular legal practice also was a different experience then, she said.

“In practice, I don’t know of a woman of my vintage who would say” she’d never experienced harassment or discrimination, the judge said.

Robinson said there are unique institutional barriers to reporting misconduct in the judiciary, including the power differential between judges and other court employees, and the dynamics involved in the relationship between judges and their clerks.

“The judge is the all-powerful figure,” she said. Clerks are seeking mentorship, and a level of prestige is conferred upon clerks for working with judges, she said.

“There are a lot of reasons why they don’t want to rock the boat” by reporting misconduct, she said. “Even people who have left don’t want to talk about it.”

Getting to work

Rather than collecting baseline measurements to determine the scope of the problems facing the judiciary, Robinson said the working group used data from a 2016 Equal Employment Opportunity Commission report on sexual harassment.

“We just thought it was better to assume — like every other work place or institution — we had a problem and go from there,” she said.

On its own, the group took a number of steps, including revising confidentiality provisions in clerk handbooks to clarify that those provisions do not prohibit them from reporting misconduct, and establishing a mailbox for current and former clerks to provide comments and suggestions.

In 2018 the group made more than 30 recommendations for improving the federal judiciary’s policies and procedures. They included updating codes of conduct for judges, improving reporting procedures and enhancing educational and training programs.

As a result of the recommendations, in January 2019, the federal courts established the new Office of Judicial Integrity, or OJI, a national-level office to help educate employees about their rights and provide confidential advice.

And in September 2019, the Judicial Conference of the United States — the policy-making body for the federal courts — approved updates to the federal courts’ Model Employment Dispute Resolution Plan.

The new Model EDR clearly states that harassment, discrimination and abusive conduct and retaliation are prohibited, and it provides employees with several options for reporting and seeking redress.

Since then, the working group’s activity has waned, Robinson said. Going forward, she expects that the OJI will continue to monitor workplace issues and collect data.

In an outgrowth of the working group’s efforts, district and circuit courts are further implementing procedures and establishing workplace relations contacts, she added.

Millie Adams, circuit executive for the 8th U.S. Circuit Court of Appeals, did not respond to messages seeking comment on the circuit’s actions.

One of the group’s key findings — which emerged from feedback it sought from clerks and other court employees — was that sexual harassment wasn’t as pervasive as expected, Robinson said.

Many who submitted comments, however, pointed to other workplace concerns, such as bullying and abusive behavior from judges and others in positions of power in courthouses. Robinson said that was eye-opening.

Criticism from clerks

The working group has not been without its critics, including a group of current and former law clerks who sought a larger role in the working group and contest the contention that sexual harassment is not pervasive in the federal courts.

Jaime Santos, a partner at Goodwin Proctor in Washington, D.C., testified on behalf of former and current clerks before the Senate Judiciary Committee in 2018 that the group’s finding about harassment stems from the group’s forward-looking focus.

While the approach is important, she said it’s “not sufficient.”

Santos said the judiciary should ask all law clerks of the past decade if they encountered misconduct, if they attempted to report it and, if not, what barriers prevented them from reporting.

Santos — who did not respond to an interview request — also advocated for giving clerks a seat on the working group.

Robinson said the working group did not expand to include clerks because its members did not want the group to become too large. In the end, however, the working group adopted most of the clerks’ recommendations, she said.