Senate Critical of How Judiciary Handles Sexual Harassment

WASHINGTON (CN) – A working group created by the federal judiciary to address sexual harassment came under fire Wednesday as activists skewered their efforts to date in a Senate hearing.

Precipitating this morning’s hearing, the Federal Judiciary Workplace Conduct Working Group issued its first report since the group took shape in January at the request of the Supreme Court’s Chief Justice John Roberts.

Published June 1, the report was generally positive about the judiciary’s handling of sexual harassment and misconduct complaints, but recommended the judiciary revise its codes of conduct, improve its procedures for employees to report misconduct and ramp up educational and training programs for its 30,000 employees.

“I assure you that the judicial branch takes these issues very seriously,” said James Duff, the director of the Administrative Office of the U.S. Courts, at a hearing this morning of the Senate Judiciary Committee.

Among those who were less satisfied with the the report was Jenny Yang, strategic partner at the advocacy group Working IDEAL.

Highlighting the report’s claim that sexual harassment and misconduct was “limited to a few isolated instances,” Yang told the committee that the observation might say more about the lack of good reporting options for law clerks than it does about the health of the judicial workplace.

“I do think that the lack of reporting reflects a problem with the system and a lack of confidence that employees have in that system,” said Yang, former chair of the U.S. Equal Employment Opportunity Commission.

The Senate heard more thumbs-down testimony about the report from  Jaime Santos, an associate at Goodwin Procter who works with law clerks to advocate for efforts to combat sexual harassment.

“I would not share the working group’s conclusion that it is not pervasive in the judiciary,” Santos said. “I don’t think the judiciary has any idea.”

Santos told the committee she is aware of federal judges who have engaged in misbehavior in recent months, and suggested there should be a survey of law clerks and employees who have worked in the judiciary over the past decade to get better determine the prevalence of harassment and misconduct.

Chief Justice Roberts called for the working group’s formation in December last year after reports of sexual harassment triggered the retirement that month of Ninth Circuit Judge Alex Kozinski.

Senator Richard Blumenthal, D-Conn., expressed outrage Wednesday that Kozinski can still draw his full salary.

He suggested investigations into misconduct should continue after a judge retires and be able to cut off the benefits if the allegations are corroborated.

Senator Chuck Grassley, R-Iowa, left the door open for lawmakers to step in and make changes if the judiciary is unable to effectively police itself.

“The judiciary has a problem, they have to deal with it, or Congress will have to do it for the courts,” Grassley said.

Currently, judicial employees can report misconduct under Judicial Conduct and Disability Act or through employment dispute-resolution plans. Duff described the former as a “formalistic” complaint process, while the latter is a judicially created mechanism for “resolving a wide range of employee disputes,” according to the working group report.

Duff said no judicial employee filed a sexual harassment complaint under the formal procedures in 2017, though he acknowledged this does not mean there were not instances that went unreported.

The working group recommended the Administrative Office of the U.S. Courts create an Office of Judicial Integrity to advise employees on workplace conduct and encourage every court to have a similar resource for employees.

But Santos, Yang and lawmakers noted the report stops short of suggesting a national system for people who want to report misconduct. Santos said the absence of such a national system leaves law clerks and other employees to bring their concerns to their chief judge, a prospect that could chill reporting from employees fearful of damaging their careers.

Because judges have a reputation among clerks as “demigods” and lifelong mentors, Santos said reporting misconduct is a frightening prospect.

Senator Dianne Feinstein, D-Calif., shared this concern, and asked Duff to be “aggressive” combating sexual harassment in the judiciary.

“I think that’s the problem, I think young women are still intimidated and, you know, if you depend on the job, you lose your job,” Feinstein said. “And that is a problem that is overwhelming for many young women and I’ve heard it many different times.”

But a clear answer on how to improve the judiciary’s response to harassment remained elusive at the hearing. Duff resisted when Senator Thom Tillis, R-N.C., asked about having an inspector general assigned to the judiciary, saying such an arrangement would be unconstitutional.

Yang said the lack of independent oversight of the judiciary, coupled with the limited remedies available to people who report misconduct, makes it difficult to change the system.

Duff reported Wednesday that his office is already taking steps to implement the working group’s recommendations, including planning for a national and circuit-level “one-stop shop” for employees looking for information about how to report misconduct.

He touted the working group’s finding that the judiciary responds effectively when it discovers workplace misconduct, but acknowledged that too often it doesn’t even hear about the harassment.

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