February 05, 2019

#MeToo: Sexual Harassment in the Courtroom

By Sharlene Koonce

The courthouse, like any other workplace, is not immune from issues and incidents of sexual harassment.  A breakout panel at the 2018 Appellate Judges Education Institute (AJEI) Summit titled, “#MeToo/Best Practices for Appellate Courts to Address Past and Avoid Future Sexual Harassment Claims,” focused on this critical issue.  The panel included Jaime A. Santos of Goodwin Procter LLP, the Honorable David F. Hamilton of the U.S. Court of Appeals for the Seventh Circuit, and Jamala S. McFadden of McFadden Davis LLC.  Each speaker brought a unique background and offered different perspectives on this topic, which led to an interesting and lively discussion.

The #MeToo Movement and the Judicial Workplace

McFadden led the discussion by reminding the audience that the #MeToo movement and sexual harassment issues in the work place are not novel issues.  Quoting statistics published by the U.S. Equal Employment Opportunity Commission (EEOC), McFadden explained that somewhere between 25 to 85 percent of people in the workplace experience some form of harassment.  Those numbers include incidents of sexual harassment.  McFadden continued, even more interesting is that the EEOC found that three out of four women who experience harassment in the workplace never report the incident—at all.  As Chief Justice John Roberts stated in his 2017 State of the Judiciary report, the judiciary is not immune to incidents of sexual harassments.

McFadden highlighted that the elements leading to dramatic sexual harassment issues in other work places exist in the judicial arena as well, including:  power and prestige differentials among members of the judiciary, their law clerks and other court personnel; the ability of a judge to dramatically affect the careers of other court staff; and difficulties in providing meaningful education and oversight of powerful elected or appointed officials.  McFadden underscored another important concern in the judicial setting, the confidentiality rule.  From her perspective, confidentiality encourages people not to speak out about anything that takes place in chambers, including personal issues that may arise such as incidents of sexual harassment.  She explained that law clerks are typically new to the working environment and may not have the necessary background or experience to properly navigate these issues.  Time is also a factor, as most law clerk positions last one, maybe two years.  McFadden explained that Title VII and its protections and remedies do not apply to law clerks, thereby limiting the legal remedies available to those potential victims.

Typically, to report an incident of sexual harassment in the judicial workplace, a person must report their concern(s) to a judge.  This reporting system poses serious concerns with addressing sexual harassment incidents.  It is easy to imagine the issues that may arise.  For example, McFadden emphasized, there are serious concerns where one judge is charged with investigating and handling complaints made by or about his or her own colleague.

Moreover, the remedies available to law clerks are not as robust as those available in the private sector.  Not to mention the fact that the judiciary has inadequate investigation procedures.  As mentioned, complaints of sexual harassment in the judiciary are typically investigated and addressed by fellow judges, who may or may not have the requisite training to handle such issues.  These practical issues make chambers a unique setting for addressing incidents of sexual harassment incidents.

Recent Efforts to Expose the Issues and Suggest Solutions

After setting the scene, McFadden passed the baton to Santos who discussed recent efforts to create solutions to the issues identified by McFadden.  Santos, co-founder of Law Clerks for Workplace Accountability, has spent the past 11 months urging the judiciary to take action to study and address sexual harassment in the judicial workplace, including testifying in front of the Senate Judiciary Committee, the Judicial Conference of the United States, and advising a federal working group established by Chief Justice Roberts.  Santos began her comments by discussing how she got involved with this vital issue.  It all started with a call from her former law professor who needed help on advising current and past law clerks on how to circumnavigate confidentiality issues considering some of the harassment they were experiencing with their clerkships.  They started by drafting a letter to the Chief Justice of the United States, the Administrative Office of U.S. Courts, and the Head of the Committee on Judicial Conduct in the Judicial Conference, suggesting some policy ideas such as establishing a working group, reporting sexual harassment numbers in year-end reports, and the like.  They decided to invite other signatories to the letter and began to publicize this invitation.  Within approximately three days, they received over 650 signatories comprised of lawyers, law professors, clerks, former clerks, and judges.  Chief Justice Roberts took immediate action and established a working group of high-level judicial personnel.  The circuits followed suit.  Law Clerks for Workplace Accountability’s main function is to provide advice and input to the judiciary to ensure that judicial employees are safe and effective.  But Santos cautioned that law clerks are not the only victims.  Rather, there are a variety of victims and a variety of harassers, including court staff, law enforcement staff, and outside visitors.

Progress of the Judiciary and Court Administrators

The Honorable David F. Hamilton next explained the progress that the judiciary has made to address sexual harassment in the judicial workplace.  He began by expressing his gratitude to Law Clerks for Workplace Accountability for their efforts.  He affirmed that the judiciary recognizes it is a large employer from both a federal and state perspective.  He echoed McFadden’s comments regarding the special concerns in the judicial setting that can make a workplace vulnerable to harassment issues.  He noted that the federal judiciary already had policies and procedures in place, but that there is no doubt that the allegations made against former Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (and the surrounding publicity) prompted a new focus and brought a quick response to this issue.

Judge Hamilton explained that committees in the Seventh Circuit, Ninth Circuit, and on a national level were set up almost immediately following the Kozinski allegations in December 2017.  These committees began looking at the judiciary’s EEOC policies and the procedures for resolving work place complaints.  Judge Hamilton emphasized Santos’s comment that we are not only speaking about judges with respect to these issues.  We are talking about supervisors, probation officers, and clerk officers, especially those who fill supervisory roles.  Judge Hamilton further explains, we are also talking about individuals outside of the courthouse, such as law enforcement officers and court security officers who frequent the courtroom and encounter other judicial employees.  The Seventh Circuit gives emphasis to the message, “as a manager, you have an obligation to protect your people.”

Judge Hamilton next addressed the issue of resolving work place complaints.  He confirmed there is ongoing progress in this area.  For example, there are changes underway to the Judicial Code of Conduct; changes have already been made to the Law Clerk Handbook regarding confidentiality principles; the Judicial Conference has dealt with these issues in multiple meetings; and overall there is ongoing reform of policies and procedures.

Reform to the policies includes adding a critical definition (including explicit examples) of what conduct is precluded in the workplace, and expanding the protected class of individuals.  He highlighted that while the law does not protect against the equal opportunity harasser (that one person who is a jerk to everyone), judicial policies should nonetheless address that behavior.  Model policies should highlight the duty to have a safe and respectful workplace.  Proper policies should also make clear the prohibition against retaliation to encourage reporting of sexual harassment incidents.  Policies must also define who is actually covered and protected.  Surprisingly, many old circuit policies did not even protect or encompass law clerks or other court administrators.  He also mentioned there are discussions regarding providing the assistance of counsel throughout the complaint process by identifying a network of individuals who can provide representation, counsel, and training.

The national working group is also setting up a resource center called the Office of Judicial Integrity that would essentially provide guidance and assistance on addressing sexual harassment in the judicial workplace.  Judge Hamilton ended his segment by diving into the issues of confidentiality, transparency, and accountability.  He noted there is no perfect solution, and there are inherent tensions among the goals of confidentiality for both the claimant and target, as well as issues of transparency and accountability.  With respect to confidentiality, Judge Hamilton noted the tension between allowing informal, confidential resolutions and the need for transparency and accountability.  He highlighted the benefits that confidentiality brings to victims, but noted confidentiality cannot be guaranteed given strict reporting requirements under the current legal framework.  He expects that updated policies will require education and training to address this crisis.

McFadden added that the circuit in which Judge Hamilton serves, the Seventh Circuit, has developed model policies for addressing sexual harassment in the workplace.  Santos also added that the Judicial Conference intends to revamp the current model Employee Dispute Resolution (EDR) policy because it is deficient and ineffective.

Best Practices for Preventing and Handling Sexual Harassment the Judicial Workplace

The Judicial Conference has also proposed changes to the Judicial Code of Conduct and the Rules Governing the Judicial Conduct and Disability Act Proceedings.  The most significant changes include: (1) specifically recognizing sexual harassment as an issue that erodes public confidence in the judiciary and not just a personal concern; (2) expanding the protected groups to include gender identity and sexual orientation; (3) adding mandatory reporting requirements; (4) allowing any person to make a complaint (not just victims); (5) and creating training programs for law clerks and judges.  Law Clerks for Workplace Accountability offered the following constructive feedback to these proposals: (1) complaints should be funneled to the Accountability Office (AO) and not siloed in the individual circuits; (2) there should be increased public disclosure of aggregated data of the number of sexual harassment incidents; (3) wide discretion vested in Chief Judges should be limited; (4) the process for reporting and resolving should be revamped, especially where fellow judges are investigating and handling allegations against their colleagues; (5) national reporting channels should be established.

Judge Hamilton reiterated the benefits of informally and confidentially resolving incidents of sexual harassment when doing so is satisfactory to the complainant.  He raised a genuine concern that if judges feel unduly vulnerable, this may impact hiring decisions.  He recognized that such an approach may seem somewhat defensive, but it addresses the human realities of these situations.  McFadden agreed that victims can benefit from the informal process and keeping the matter confidential.  However, McFadden disagreed with the Seventh Circuit’s current policy to keep complaints within the circuit after the complainant decides to elevate the informal complaint to formal.  She believes that outside, trained investigators and lawyers, such as herself, should she get involved at that point.

Santos recognized a serious concern: part of the challenge is that the Judicial Conference can publish rules and model policies, but it lacks enforcement authority.  She highlighted that some circuits are not doing any work in this area, despite known issues of harassment incidents.  She advocated for development of an overall structure of uniform accountability.

Conclusion

In the wake of highly publicized sexual harassment scenarios in and out of the courthouse, and with the advent of the #MeToo movement, the judiciary has recognized the need to update and expand policies, procedures, and training to adequately prevent and handle sexual harassment in the judicial workplace.  This panel thoughtfully discussed the #MeToo movement in the context of the judicial workplace and recent efforts to expose issues within the judiciary, suggested solutions, reviewed recent progress made by the judiciary and court administrators, and considered best practices for preventing and handling sexual harassment in the judicial workplace.  The panel’s overarching goal was making the judiciary a safe and effective workplace for all. 

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Sharlene Koonce

Sharlene Koonce is an Associate in the San Diego office of Fisher Phillips LLP, where she focuses on labor and employment and appellate matters.  Sharlene also serves in the United States Air Force Reserves as a Paralegal, following nearly eight years of active service.  Sharlene graduated with honors from UC Davis School of Law where she served as Moot Court Chair and Editor-in-Chief of the Journal of Juvenile Law and Policy.