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Taking on Culture Change at Ninth Circuit Post Kozinski

May 28, 2019, 8:51 AM

Yohance Edwards had his work cut out for him when he became the first director of workplace relations at the California-based federal judicial circuit grappling with addressing harassment concerns in the #MeToo era.

The former Munger, Tolles & Olson associate stepped into a position created by fallout from the sex harassment allegations that forced Judge Alex Kozinski from his seat on the U.S. Court of Appeals for the Ninth Circuit.

It “would be naive of me and presumptuous to suggest that I could change” the court’s culture alone, Edwards said in an interview.

But “I do see myself as having a role” in helping the circuit move forward, he said.

The Kozinski allegations in 2017 hurled the judiciary into the #MeToo maelstrom that was consuming prominent figures in entertainment, politics and media.

At least 15 women, including some former law clerks, accused him of groping them, showing them pornography, or making off-color comments.

He later said he would never purposely offend anyone, and an investigation was dropped once he retired, in accordance with judiciary rules governing conduct probes.

A working group subsequently convened by Supreme Court Chief Justice John G. Roberts following the allegations developed protocols for federal judges, but not Supreme Court justices, to report misconduct when they become aware of it. It also revised procedures for employees to report problems.

Separately, a Ninth Circuit committee issued its own recommendations, which included developing workplace training for court employees and judges. The committee also recommended the creation of the job begun by Edwards this year.

‘Climate of Civility’

Edwards is based at the Ninth Circuit’s headquarters in San Francisco, but his program oversees a judicial system stretching across seven western states, Hawaii, Alaska, Guam and the Northern Mariana Islands. This includes district and bankruptcy courts as well as the appeals court.

He said he was impressed with the steps taken by the Ninth Circuit before he arrived, and is now focused on creating a “climate of civility” where judiciary employees feel comfortable coming forward with concerns.

That role includes not only overseeing the development of training programs on harassment and discrimination, but also measures aimed at changing the culture at the court.

Edwards wants to create an awareness of the biases and power dynamics “that may not rise to the legal definition of severe or pervasive discrimination or harassment,” but that cause a work environment to be “ripe for widespread abuse.”

He brings to the job an interest in civil rights issues that’s been apparent since his days at New York University law school, when he wrote a law review note about minority school districts and education finance reform litigation.

Edwards clerked for Ninth Circuit Judge M. Margaret McKeown and later worked as a staff attorney in the circuit.

He later was a lawyer at the Department of Education’s Office for Civil Rights, where he enforced laws prohibiting discrimination at educational institutions.

Most recently, he was the associate director and deputy Title IX officer at the University of California, Berkeley, in its Office for the Prevention of Harassment and Discrimination.

Edwards’ time as a clerk and staff attorney in the Ninth Circuit also prepared him for the new role, he said.

For example, clerking helped him understand the “dynamics of being in chambers” and the relationship and power differentials between law clerks, judges and judicial assistants.

Getting Buy-in


Edwards wondered how serious the Ninth Circuit was about tackling these issues, when he was considering taking the position.

He then saw that it was engaged in a “tremendous effort” to move forward, having “bought into” a commitment to do so.

Ninth Circuit Chief Judge Sidney Thomas created a workplace environment committee soon after the allegations against Kozinski surfaced, which surveyed some 6,000 employees and created focus groups to assess the problem.

The committee’s recommendations resulted in changes to the court’s employment dispute resolution policy. Changes also made clear that the court’s confidentiality policy didn’t prohibit staff from raising misconduct issues, Edwards said. It also added a new provision covering bullying to the policy.

On the Road


The sheer size of the Ninth Circuit meant a significant amount of travel to get feedback from the court’s units and to help them understand the policy changes and his role.

He’s met with management constituencies including the chief judges of the circuit’s district courts and public defenders.

One advantage of the circuit’s breadth is that many of its units had already undertaken training on harassment, discrimination, bystander intervention, and implicit bias before and after the Kozinski allegations surfaced, Edwards said.

Edwards is examining what’s worked in those units and figuring out how to implement those measures more broadly, in a circuit whose districts vary widely in area and staff size.

It’s not a matter of “one size fits all,” but Edwards wants all units “to have access to what the successful models have been throughout the circuit,” he said.

Confidential Advice


One benefit of Edward’s position is that court employees can get informal advice on a confidential basis.

Edwards said that with a few exceptions such as matters involving threats to physical safety, “I can keep everything confidential.”

A number of employees in various roles across the circuit “have reached out to me and expressed appreciation for being able to talk things through.”

Without confidentiality, workers may stay quiet out of a fear of retaliation, not wanting to get anyone in trouble, or a belief that a problem may not be big enough to bring forward, Edwards said.

This results in problems being “buried,” potentially worsening the situation for the victim, the accused, and the court, he said.

Edwards wants workers to know that “interim measures” may be available to handle disputes quietly, such as assigning them to another supervisor or location.

The old process required mediation, but that is now just one of several options, Edwards said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com