The courts have a special responsibility to make sure that discrimination and harassment based on race or gender are never tolerated. Although the Conference of Chief Justices has been a leader in this area for decades, in January 2018, it adopted a resolution “In Support of Commitment to Awareness and Training on Workplace Harassment in the Judicial Branch.” State court systems around the nation are working to address this issue.
November 01, 2018 Feature
Workplace Harassment in the State Courts
By Deborah Wood Smith
History of Workplace Harassment
Workplace harassment is nothing new in the United States. This is particularly true if you consider the period of history where enslaved women were considered property and had no legal right to refuse the sexual advances of their owner. The owner did have a cause of action if an enslaved woman was assaulted by someone else. Similarly, during the nineteenth century, a father had a cause of action when an employer impregnated his daughter. Both the abolitionists and the suffragette movement focused on the abuses and hardships women suffered in the workplace as domestic servants (free or enslaved) or factory workers.1
While women gained the right to vote in the United States in 1920, it was another 50 years before civil rights lawyers began to change the attitudes and practices that accepted workplace harassment based on gender or race.2 While Title VII of the Civil Rights Act of 1964 prohibited discrimination based on sex, the term “sexual harassment” was not used until the mid-1970s and is attributed to Lin Farley from Cornell University.3 While the term made it easier to talk about the problem and create human resources training manuals to address it, it did not cure the problem, as the current #MeToo movement exemplifies.
Conference of Chief Justices
In 1981, the Conference of Chief Justices (CCJ) called for equal opportunities for women and minorities to work in the courts. In 1988, CCJ urged each state to establish a task force addressing gender and racial bias in the courts. Many state court systems developed these task forces in the 1980s and 1990s. Some of these task forces have remained active, while others have become part of a court access-to-justice effort.4
Building on the earlier work, CCJ approved a resolution on workplace harassment in 2018. This resolution, “In Support of Commitment to Awareness and Training on Workplace Harassment in the Judicial Branch,” references the 1998 call for the chief justice of each state to establish a task force addressing gender and racial bias. This resolution also points out that every state has a judicial disciplinary commission that holds judges accountable and that judicial codes of conduct require judges to be free of bias and prejudice. Further, they are barred from engaging in harassment or permitting court staff or court users to engage in this type of behavior. This resolution encourages the judicial branch of each state to develop procedures and provide training on workplace harassment. It also asks the National Center for State Courts (NCSC) to create a repository of resources to address workplace harassment. This online repository includes resources to assist the state courts in developing or updating training, policies, and procedures.5
The Federal Judiciary Workplace Conduct Working Group was formed in January 2018 to review the protections in place for employees dealing with inappropriate workplace conduct.6 The Working Group reviewed the Select Task Force of the U.S. Equal Employment Opportunity Commission Study of Harassment in the Workplace in 2016 (EEOC Study). In addition, the Working Group received input from a variety of individuals and groups including current and former law clerks and court employees.7
Developing a Culture Free of Workplace Harassment
Developing a culture that is responsive to workplace misconduct is an ongoing process. It requires much more than a one-time human resources training. Workplace conduct policies must be up-to-date, reviewed regularly, and applied consistently. Familiarity with the Equal Employment Opportunity Commission (EEOC) guidelines, which define sexual harassment and impose an affirmative duty on employers, is crucial. A confidential reporting procedure is critical in encouraging individuals to come forward without fear of retaliation, particularly given the consensus is that sexual harassment is hugely underreported. Accountability in all areas of the court system must be clear, as should which policies and procedures apply to whom. Finally, a thorough investigation with appropriate accountability must follow each complaint to support a culture that is free of workplace misconduct.8
An EEOC report on harassment in the workplace issued in 2016 laments that after 30 years of training programs, workplace harassment persists. Workplace harassment accounted for 28,000 of the 90,000 claims received in 2015. Despite the large number of complaints, the report found that nearly 70 percent of individuals who experienced harassment did not report it. The reasons cited for not reporting included fear of retaliation or indifference by employers.9 Another reason may include concern about succeeding on a claim if it goes to litigation. According to Suja Thomas, author of Unequal: How America’s Courts Undermine Discrimination Law, employment cases and other civil rights cases have the highest rate of summary judgment. These cases rarely make it to a jury as more than 70 percent are granted summary judgment in favor of the employer in whole or in part.10
Studies on the effectiveness of training have demonstrated mixed results and, in some cases, contributed to greater bias against women. Some studies found the gender of the trainer, the gender of the trainee, and the level of belief in traditional gender roles all contributed to the effectiveness of training. Justine Tinkler from the University of Georgia and her colleagues have conducted multiple studies on the effects of sexual harassment training. In 2007, they “found that male subjects exhibited more unconscious gender bias and rated women as less likable after policy training.”11 A 2013 study showed
. . . policy training triggered more unconscious gender bias among those most committed to traditional gender norms. In addition, male subjects with traditional gender norms rated women as less likable after policy training.12
Finally, in 2015, they found that the gender of the trainer affected the results:
When a female led the training, male subjects’ unconscious gender bias was higher after policy training. However, male policy trainers did not increase male subjects’ unconscious bias, and they actually increased ratings of women’s likability.13
Tinkler’s research suggests that harassment training can have negative consequences and encourages, instead, the use of bystander-intervention training that focuses on changing the behavior of male and female witnesses without reinforcing negative gender stereotypes. This type of training avoids reinforcing the stereotype of the powerful male and the weak female victim by giving equal power to all bystanders. This, in turn, helps to change the underlying culture of the workplace.14
The EEOC found that significant power disparities in the workplace were a risk factor for harassment. Bystander-intervention training was again recommended as one innovation that may prove effective in reducing workplace harassment.15 A recent article in the Harvard Business Review also discusses the effectiveness of harassment training and reports that over time surveys of workplace harassment have consistently found that about 25 percent of working women report experiencing workplace harassment. The authors contend that putting more women in management or “core” positions would do more to alleviate harassment than training programs.16
Women on the Bench
One way to put more women in “core” positions in the courts is to have more diversity on the bench. In “How Masculinity Can Shape Judicial Decision Making,” the authors report that diversity on the bench does begin to alleviate problems with biased decision making.17 In 1923 Florence Ellinwood Allen became the first woman to serve on a state court of last resort (COLR), the Ohio Supreme Court. However, another woman did not serve on a state COLR for 36 years, when in 1959 Rhoda Lewis was appointed to the Hawaii Supreme Court. In 1965, Lorna Lockwood became the first woman to serve as a chief justice, serving on the Arizona Supreme Court. In 1975, Susie Marshall Sharp became the first woman elected as a state chief justice, serving on the North Carolina Supreme Court. In 1992, Leah Ward Sears was appointed to the Supreme Court of Georgia, becoming the first African American woman to serve on a state COLR. But it was not until 2002 that all states had had at least one female justice when Judith M. Meierhenry was appointed to serve on the South Dakota Supreme Court.18
The journey to have at least one woman on each COLR took 79 years from the time the first female justice joined the Ohio Supreme Court. As of July 2018, Iowa was the only COLR with no female justices, but this will change upon the retirement of Justice Bruce Zager in September 2018. According to the National Association of Women Judges, citing the American Bench, 33 percent of all state court judges (5,947 out of 17,840) currently are women. As of July 2018, 35 percent of justices on state COLRs are women, while 34 percent of the chief justices on state COLRs are women.
What’s Happening in the States?
State court systems from Alaska to Washington are reviewing their workplace harassment policies and training curricula. Among other groups, the State Justice Institute (SJI) has supported this work in a meaningful way. SJI awarded a grant to the Washington Administrative Office of the Courts for a statewide gender bias assessment. SJI also awarded the National Association of Women Judges a grant to develop educational and training programs on workplace harassment. NCSC staff reached out to the state courts to ask for updated information on policies, trainings, and other efforts to combat workplace harassment and will continue to collect resources.
Transparency is an important part of developing a workplace culture that is free from any form of harassment. In response to the concern over workplace harassment, the California Judicial Council revised Rule of Court 10.500, Judicial Administration: Public Disclosure of Settlement Agreements. The purpose was to make it clear that settlement agreements that involve the payment of public funds must be disclosed on request and that judicial officers’ names may not be redacted.
State courts handle policies and procedures for workplace harassment in different ways. In many states, the Code of Judicial Conduct applies to judges while a different policy applies to other court employees. More than 30 states follow the Model Code of Judicial Conduct 2.3(B) or something very similar:
A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
Some states have recently adopted additional policies that cover both judges and court staff. In July 2018, the Arizona Supreme Court updated a policy adopted in 1992 by amending the Arizona Code of Judicial Administration to include a section titled “Discrimination and Harassment.” The provision applies to judges, court staff, and vendor employees:
Discrimination and harassment, including sexual harassment, in the workplace are prohibited. Employment discrimination and harassment based on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation are forbidden. Such conduct is grounds for discipline of judicial branch employees, up to and including dismissal; grounds for discipline of judges by the Commission on Judicial Conduct; and grounds for termination of vendor contracts when the conduct is by a vendor employee.19
In February 2018, Florida used an Administrative Order to update the Sexual Harassment Policy and Procedures for Complaints Against Justices and Judges. However, the 2012 Florida Supreme Court Civil Rights Complaint Procedure still relates to complaints against court staff. The earlier policy covers
. . . complaints of discrimination, by and against officers and employees of the Supreme Court and Office of the State Courts Administrator, because of race, religion, sex, including sexual harassment, national origin, age, disability, marital status or retaliation.20
As a third example, in January 2018, New Jersey released a Revised Judiciary Policy Statement on Equal Employment Opportunity Affirmative Action and Anti-Discrimination that applies to everyone who comes into contact with the court system:
[D]iscrimination will not be tolerated whether it is practiced by judges, employees or non-employees, against court employees, attorneys, litigants, witnesses or others who come into contact with the court system.21
State court systems also are revamping their training procedures. A sexual harassment training seminar was hosted by the Ohio Supreme Court and the Ohio State Bar Association. This statewide training was just the beginning of an ongoing process, according to Chief Justice Maureen O’Connor. With 535 participants, and the event streamed live to another 20 locations, the message reached judges and attorneys throughout the state. Christy Tull, director of the Ohio Supreme Court’s Judicial College, emphasized that the issue should not be how to avoid a lawsuit but how to develop a culture where everyone, including bystanders, has a role to play in preventing harassment.22
Other states are reviewing their procedures so that a one-time sexual harassment training at the beginning of one’s career is no longer the end of the conversation but just the beginning. Technology can be used to continue the discussion with web-based trainings that provide for a Q & A format or roundtable discussion on a more regular basis. In March 2018, the Chief Justice of the Alaska Supreme Court established an Anti-Sexual Harassment Policy Working Group. The Working Group, chaired by Alaska Court of Appeals Judge Tracey Wollenberg, is charged with reviewing the court’s policy on discrimination and sexual harassment and to develop an updated policy that reflects best practices.
Conclusion
As state court systems continue to review their policies, procedures, and training on sexual harassment in the workplace, they need to consider the information gleaned from the research and reports. One-time trainings that focus on how to avoid lawsuits are not effective and may perpetuate negative stereotypes. Training that focuses on bystander intervention is a promising alternative. Transparency for credible allegations leading to settlements needs to be balanced with reporting procedures that protect against retaliation. Some commentators have concluded that increased diversity on the bench and in other core positions would reduce biased decision making and harassment in the courts. Creating a culture where everyone is committed to a workplace that is free of discrimination and harassment is an ongoing process that requires buy-in and support both from the top state court leaders as well as everyone in the court system.
Endnotes
1. Reva B. Siegel, Preface, A Short History of Sexual Harassment, Directions in Sexual Harassment Law (Catharine A. MacKinnon & Reva B. Siegel eds., Yale University Press 2012).
2. Id.
3. Lin Farley, I Coined the Term “Sexual Harassment”: Corporations Stole It, N.Y. Times, Oct. 18, 2017.
4. The History of the Conference of Chief Justices, 1949–2009 (Nat’l Ctr. for State Courts 2010).
5. Conference of Chief Justices, Resolution 2 (2018), available at http://www.ncsc.org/~/media/microsites/files/ccj/resolutions/01312018-support-commitment-awareness-training-workplace.ashx.
6. Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference of the United States (June 1, 2018), available at http://www.uscourts.gov/sites/default/files/workplace_conduct_working_group_final_report_0.pdf.
7. Press Release, Ninth Circuit Court of Appeals, Ninth Circuit Judicial Council Acts on Workplace Environment Recommendations (May 21, 2018), available at https://www.ncsc.org/~/media/Files/PDF/Topics/Workplace%20Conduct/NinthCircuitRecommendations.ashx.
8. Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession (Wendi S. Lazar et al. eds., 2018).
9. U.S. Equal Emp’t Opportunity Comm’n, Select Task Force on the Study of Harassment in the Workplace (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.
10. Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press 2017).
11. Justine E. Tinkler, Sexual Harassment Training: Promises, Pitfalls, and Future Directions, 46 ASA Footnotes, no. 3, July/Aug. 2018, at 8, http://www.asanet.org/news-events/footnotes/jun-jul-aug-2018/features/sexual-harassment-training-promises-pitfalls-and-future-directions.
12. Id.
13. Id.
14. Id.
15. Id. at 9.
16. Frank Dobbin & Alexandra Kalev, Training Programs and Reporting Systems Won’t End Sexual Harassment: Promoting More Women Will, Harv. Bus. Rev. (Nov. 15, 2017), https://hbr.org/2017/11/training-programs-and-reporting-systems-wont-end-sexual-harassment-promoting-more-women-will.
17. Rebecca D. Gill, Michael Kagan & Fatma Marouf, How Masculinity Can Shape Judicial Decision Making, 18 Res. Briefs, no. 1, January 2018, at 1, https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1000&context=wrin_briefs&utm_source=Judicial+Edge&utm_campaign=9adc5c947f-EMAIL_CAMPAIGN_2017_01_23_COPY_01&utm_medium=email&utm_term=0_245b20c264-9adc5c947f-253771477.
18. Memorandum from N.C. Supreme Ct., Women in Courts of Last Resort (2017) (copy available with NCSC).
19. Ariz. Code of Jud. Admin. § 1-304 (July 18, 2018), available at https://www.azcourts.gov/Portals/22/admorder/Orders18/2018-65Final.pdf.
20. Fla. Admin. Order AOSC12-21 (June 29, 2012), available at http://www.floridasupremecourt.org/clerk/adminorders/2012/AOSC12-21.pdf.
21. N.J. Admin. Office of the Courts, Revised Judiciary Policy Statement on Equal Employment Opportunity, Affirmative Action and Anti-Discrimination (Jan. 23, 2018), https://www.njcourts.gov/public/assets/policystatement.
22. Video on Ohio Training, Court News: Ohio Judges and Lawyers Learn Ideas to Prevent Sexual Harassment, Ohio Channel (July 12, 2018), http://www.ohiochannel.org/video/court-news-ohio-judges-and-lawyers-learn-ideas-to-prevent-sexual-harassment.