September 30, 2019 news headline: “Kansas federal judge reprimanded for sexual misconduct.” The Judicial Council of the Tenth Circuit Court of Appeals issued the public reprimand (the most severe sanction it could impose) after an extensive investigation of employee complaints. Closer to home, a local court administrator was terminated recently after many years of inappropriate behavior towards court staff members.
These very serious incidents highlight the importance of taking proactive steps to prevent and effectively respond to such inappropriate workplace behaviors.
What should be done? Let’s use the federal courts as an example. For many years the Federal Judicial Center has been delivering training programs to judges and court staff on preventing sexual harassment and improving workplace civility, particularly to court leaders. Several years ago the Judicial Conference of the U.S. Courts (JCUS) adopted a “Model Employment Dispute Resolution (EDR) Plan” to establish appropriate mechanisms for anyone inside and outside of the courts to lodge and resolve concerns about inappropriate behavior. More recently, a JCUS sponsored Workplace Conduct Working Group has led the way, making these key recommendations:
- Adopting clear and consistent workplace conduct policies (including provisions for confidentiality and non-retaliation);
- Offering additional avenues to report misconduct; and
- Providing more workplace conduct training.
The second recommendation is very important. Many organizations have policies that tell staff to bring workplace misconduct issues to the Human Resources Office or a designated person/officer (usually in HR), and that’s it. This is not enough! It is vital that the aggrieved employee have a choice of several different ways to report misconduct. Why? Because the employee needs to be afforded an avenue which minimizes discomfort and fear to ensure that misconduct is reported and not hidden. For example, employees may feel more comfortable reporting misconduct to someone of their own sex, or to someone outside of the same organization as the alleged perpetrator. The federal courts have now set up such alternate avenues (e.g., for district-level employees, they may report to a person at the circuit court/regional level). In the local court administrator example above, the publicizing of the ability to report misconduct to an outside entity by the new chief judge opened the doors to many employees coming forward.
The last major action the federal courts have taken was to update pertinent codes of conduct. In March 2019, the Judicial Conference amended the Code of Conduct for U.S. Judges; the Code of Conduct for Judicial Employees; and the Judicial Conduct and Disability Act Rules, based in part on the Working Group’s recommendations.
Obviously, despite all these actions the Kansas judge still behaved terribly (and, in my opinion, should be removed from office via impeachment and conviction). Nevertheless, we have an obligation to everyone inside and outside of the courts to do everything we can to minimize inappropriate behaviors and establish the best workplace civility culture. Delivering effective training, establishing appropriate workplace conduct policies, offering multiple means to encourage the reporting of misconduct, and establishing appropriate resolution mechanisms go a long way to achieving these goals.
Compare what the U.S. federal courts have done with your court or organization. Do you have the training, policies, and tools to make workplace civility as good as it can be? If not, I encourage you to do what you can to make improvements. In this #MeToo era, it is incumbent on all of us to do so.
Please share your experiences and ideas in the comments section below. I would love to hear what has worked (or not) for you.
 The EDR Plan was updated on September 17, 2019: https://www.uscourts.gov/news/2019/09/17/judiciary-adopts-new-model-edr-plan-doubles-fee-waiver-pacer