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D.C. Circuit Adopts New Plan for Workplace Misconduct Disputes

Feb. 10, 2020, 7:41 PM

The U.S. Court of Appeals for the D.C. Circuit has joined a majority of federal appeals courts to implement new plans for reporting and resolving allegations of wrongful conduct in the workplace.

The employment dispute resolution plan applies to all judges and other workers and aims to simplify and expand the reporting process. It urges those reporting misconduct to take early action because it’s the “best way to maintain a safe work environment,” the court said in a press release.

Federal courts are revisiting their workplace conduct rules after allegations of misconduct against Ninth Circuit Judge Alex Kozinski trained the #MeToo movement spotlight on the judiciary in 2017. The controversy forced him into retirement.

The House Judiciary Committee is also looking into how the judiciary has responded to workplace misconduct issues with a hearing scheduled for Feb. 13.

The adopted plan announced Monday for the D.C. Circuit, which also includes the district and bankruptcy courts, provides three paths for reporting—seeking informal advice; obtaining assisted resolution; and filing a formal complaint. It also includes details on how each process works.

Wrongful conduct is defined in the plan as discrimination, sexual, racial, or other discriminatory harassment; abusive conduct; and retaliation. It can be verbal, non-verbal, physical, or non-physical.

In addition to judges, the plan applies to current and former employees, and applicants for employment who have been interviewed.

It’s based on the model EDR plan adopted in September 2019 by the Judicial Conference, the judiciary’s policy-making body in response to the Kozinski controversy.

There, 15 women, including some former law clerks, accused Kozinski of groping them, showing them pornography, or making off-color comments. Kozinski said it was never his intent to make his clerks feel uncomfortable, and apologized for doing so.

He stepped down amid the controversy, which led Supreme Court Chief Justice John Roberts to spearhead changes.

In March 2019, the Judicial Conference amended the Code of Conduct for U.S. Judges; the Code of Conduct for Judicial Employees; and the Judicial Conduct and Disability Act Rules based on the working group’s recommendations.

The changes clarify what behavior is prohibited, address informal methods to report misconduct, and provide for training mechanisms to educate employees on prohibited behaviors, said Garland, who heads the Executive Committee of the Judicial Conference, in March.

Along with the EDR plan, the D.C. Circuit released a chart showing how and where to file a complaint. It also released its confidentiality policy for those reporting misconduct, noting that many may be “reluctant to come forward without assurances of confidentiality and/or anonymity.”

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

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

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