Judiciary Builds on #MeToo Response with New Recommendations (1)

Monetary remedies for judiciary workers in misconduct disputes and an anonymous nationwide survey for employees are among recommendations in a new report by a working group on judiciary misconduct.

Sent to employees internally on Wednesday, the report includes nine new proposed steps that seek to build on changes the judiciary adopted following its own reckoning with the #MeToo movement.

“Now that we have all of these new structures in place—new employees, new paths of resolution, new awareness among our employees—we want to measure and see how is it going, what else can we do to improve?” Julie A. Robinson, a judge on the U.S. District Court for the District of Kansas and working group member, said in an interview.

The judiciary faces pressure to improve a system that some employees and lawmakers say is still broken. Current and former judiciary employees, for example, said in a 2021 court filing that the current process for misconduct “disincentivizes reporting, entrenches misconduct, and leaves judiciary employees without basic employment protections or due process.”

The workplace conduct group was created in 2018 after sex harassment allegations against then-Ninth Circuit Judge Alex Kozinski emerged. It published its first set of recommendations later that year, which included revising the codes of conduct to clearly state that employees and judges have an obligation to report misconduct and establishing the Office of Judicial Integrity. All of the recommendations were adopted.

Ally Coll, a co-founder and president of The Purple Campaign nonprofit working to eliminate workplace sex harassment, said the new recommendations are “important steps that the judiciary should take.” But she added that she doesn’t think they solve the problem that pending legislation sets out to solve.

The Judiciary Accountability Act (H.R. 4827, S. 2553), which has been introduced in the House and Senate, would apply the same civil rights laws that already protect private- and government-sector workers and whistleblower protections for federal workers to federal judiciary employees. The judiciary opposes that legislation, however, arguing its policies already provide workers with protection.

The report comes ahead of ahead of a House Judiciary Committee hearing scheduled for Thursday about the flaws in the current reporting system in the judiciary and need for statutory change. Caryn Devins Strickland, a former federal defender who brought sex discrimination claims against the federal courts and officials in a suit currently before the U.S. Court of Appeals for the Fourth Circuit, is among the scheduled witnesses, her lawyer Jeannie Suk Gersen confirmed. Strickland had been referred to in court documents only as Jane Roe but shed her pseudonym in a Wednesday court document ahead of the hearing.

Monitor Effectiveness

Many of the recommendations in the new report are aimed at ways to monitor the effectiveness of the judiciary’s current polices, such as the nationwide workplace “climate survey,” creating a system to review how changes are being implemented, and an annual report produced by the Office of Judicial Integrity and directors that handle workplace relations in each circuit work.

Some recommendations would make changes to procedures themselves, including specifying that employee complaints are reviewed by a judicial officer outside the circuit they originated in to strengthen “perceived partiality” of the process, creating a policy for romantic relationships between workers with “supervisory or evaluative relationship,” and exploring additional monetary remedies for the complaint process.

While employees using the complaint process can get some monetary relief through the Back Pay Act, a statute that makes federal employees whole if they were affected by an unjust or unwarranted action, “the Judiciary is one of the few workplaces that does not include the additional monetary remedies available to employees in other agencies or organizations, including other federal employees,” the report said.

How those remedies would be paid and in what circumstances would they apply are some of the aspects that must be explored before a proposal can be made, Robinson said.

Coll said use of the word “assess” in the report could mean the judiciary studies the issue and never come up with a proposal. Employees might also want equitable remedies beyond monetary damages, like reinstatement in their old job or relief to get their careers back on track, she said. “We know how to do this. Those remedies come through the courts,” Coll said.

The current report now goes to committees of the Judicial Conference for review. The report relied on feedback the judiciary received in workplace surveys that individual circuits have conducted, during trainings, and through directors of workplace relations in each circuit, M. Margaret McKeown, a judge on the U.S. Court of Appeals for the Ninth Circuit and member of the workplace conduct group, said in an interview.

McKeown said an informative finding from that feedback was that employees appreciated having multiple avenues to report misconduct and that “they’re more comfortable in a local setting than a centralized national setting.”