Responding to the recommendations of the Federal Judiciary Workplace Conduct Working Group, the U.S. Judicial Conference Committees on Codes of Conduct and Judicial Conduct and Disability have published for public comment proposed amendments to the Code of Conduct for U.S. Judges and to the rules for judicial-conduct and judicial-disability proceedings (https://tinyurl.com/y7o5xb8k).
A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff. A judge should not engage in any form of harassment of court personnel. A judge should not engage in retaliation for reporting of allegations of such misconduct. A judge should seek to hold court personnel who are subject to the judge’s control to similar standards in their own dealings with other court personnel.
A proposed new comment would explain:
A judge should neither engage in, nor tolerate, workplace conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. The duty to refrain from retaliation reaches retaliation against former as well as current judiciary personnel.
Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others. . . .
Another proposed amendment would direct a judge to take appropriate action on learning of reliable evidence indicating the likelihood that “a judicial employee’s conduct contravened the Code of Conduct for Judicial Employees. . . .” The amended comment on the canon regarding disciplinary responsibilities would provide:
Public confidence in the integrity and impartiality of the judiciary is promoted when judges take appropriate action based on reliable evidence of likely misconduct. Appropriate action depends on the circumstances, but the overarching goal of such action should be to prevent harm to those affected by the misconduct and to prevent recurrence. A judge, in deciding what action is appropriate, may take into account any request for confidentiality made by a person complaining of or reporting misconduct.
The proposed amendments to the procedural rules (https://tinyurl.com/ydabbmqe) would add abusive or harassing behavior, discrimination, hostile treatment of employees, failure to cooperate, and failure to report to the list of “cognizable misconduct.” As amended, the rules would state that cognizable misconduct includes:
- Engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault;
- Treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner;
- Creating a hostile work environment for judicial employees;
- Discrimination on the basis of race, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability;
- Retaliating against complainants, witnesses, judicial employees, or others for participating in this complaint process, or for reporting or disclosing judicial misconduct;
- Refusing, without good cause shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules; or
- Failing to call to the attention of the relevant chief district judge and chief circuit judge information reasonably likely to constitute judicial misconduct or disability.
The proposals would also provide:
A judge who receives such information shall respect a request for confidentiality but shall disclose the information to the chief district judge and chief circuit judge, who shall also treat the information as confidential. Some information will be protected from disclosure by statute or rule. A judge’s promise of confidentiality may necessarily yield when there is information of misconduct that is serious or egregious and thus threatens the integrity and proper functioning of the judiciary. This duty to report is included within every judge’s obligation to assist in addressing allegations of misconduct or disability and to take appropriate corrective action as necessary.
The deadline for public comment is November 5, 2018.