The federal judiciary’s ongoing review of workplace conduct procedures and policies has identified the formality of the complaint process as one barrier to keeping claims from being heard, an administrative official told Congress on Wednesday.
The official, James Duff, director of the Administrative Office of the U.S. Courts, was tasked with overseeing a working group created in response to the scandal involving Ninth Circuit Judge Alex Kozinski, who retired in December amid claims of inappropriate workplace behavior. The working group has identified a number of reforms concerning workplace harassment.
Duff, speaking at a U.S. House of Representatives subcommittee hearing on the judiciary’s budget, said the eight members of the working group have met three times in person since January and have been in touch daily.
The working group has received feedback directly and through circuit courts around the country about barriers to filing complaints. In his remarks, Duff identified two current processes for filing complaints and outlined the various “formalistic” steps associated with them.
“The conclusions we’re reaching—and this is still an ongoing process, we haven’t finished our work and it will be an ongoing project because we’ll want to review the progress we’ve made—but what we have determined clearly is that one of the barriers to filing is the formality of our complaint process.”
Duff told the House panel:
“What we’ve been hearing—and what’s supported by all the studies we’ve examined up to this point—employees need and want a less formalistic process. The formal complaint process works—to the extent it’s utilized. But many employees want guidance and counseling and we think intervention earlier on in the process so that you don’t need to get to the formal complaint process. We are going to create other outlets for employees within the branch both at a national level and throughout the circuits.”
Duff said the working group has looked at, among other things, a U.S. Equal Employment Opportunity Commission study of workplace conduct. That 18-month study of public and private employers found 75 percent of harassment victims did not report the alleged misconduct, he said.
“That figure is stunning,” Duff said. “What are those barriers, how do you remove them? How do you ensure that our employees have a safe work environment and one in which they feel free to complain without retaliation?”
One new measure, Duff said, will become part of the orientation process for new employees and new law clerks: a separate day focused on workplace conduct.
“I think we recognize there are bad apples in any barrel. But I think by and large we all recognize we are held to very high standards,” Senior U.S. District Judge John Lungstrum of the District of Kansas, chairman of the judicial conference’s budget committee, told the House subcommittee Wednesday. “We should be held accountable if we violate those standards. I think once some of this informational situation is taken care of—so that people understand where things are—I believe that will help.”
The working group implemented “immediate improvements” regarding confidentiality provisions in place for judiciary employees and law clerks, Duff said.
Those provisions “had been misinterpreted by some employees and law clerks as to prohibiting disclosure of workplace misconduct,” Duff said. “That was never intended. We have made revisions already to the confidentiality provisions in our ethics guidelines for our employees and law clerks.”