Judges Tell Congress That Workplace Conduct Strategy Should Continue

Testifying to a House subcommittee about workplace conduct, two federal judges said that “the Judiciary’s process for protecting employees is demonstrating its promise and should be given time to build upon the significant strides made to date.”

Judges M. Margaret McKeown and Julie A. Robinson testified before the House Judiciary Committee’s Courts, Intellectual Property, and the Internet subcommittee. McKeown, of the Ninth Circuit U.S. Court of Appeals, and Robinson, of the District of Kansas, both are members of the Federal Judiciary Workplace Conduct Working Group.

In written and oral testimony (pdf), the judges detailed the Judiciary’s strategy for ensuring a safe and respectful workplace. And they outlined nine new recommendations by the Working Group to build on previous work by the Judiciary.

“While many protections and procedures have been improved, the Judiciary's work is not done,” the judges wrote. “The Working Group has proposed additional recommendations that would strengthen policies and procedures, expand communication and training, and improve our measurement of progress.”

The Working Group’s recommendations, unveiled in a report released this week, call for a national climate survey of Judiciary employees to assess the effectiveness of workplace conduct measures. The Working Group also recommends that the Judicial Conference assess incorporating additional monetary remedies for complaints involving workplace conduct. And it recommends that employment complaints filed in one court be overseen by a judge from a different court.

The Working Group was formed in January 2018, shortly after news reports identified sexual harassment in a wide array of workplaces. The Judiciary adopted more than 30 recommendations made by the Working Group, and courts across the country have been implementing those changes.

Federal courts have created multi-layered channels for reporting workplace misconduct, and the judges testified that Judiciary employees can receive guidance and assistance within their court; from Directors of Workplace Relations, who are workplace-conduct experts at the circuit level; or from the national Office of Judicial Integrity. Employees can seek informal or assisted resolutions while preserving the right to file formal complaints.

Judiciary policy and Codes of Conduct also were strengthened. For instance, prohibition of abusive conduct was added to longstanding protections against discrimination and harassment. And confidentiality policies were clarified to remove potential barriers and encourage reporting of workplace misconduct.

Workplace training has been greatly increased for all employees and judges. 

“These improvements are a result of leadership – a key imperative for creating a safe workplace,” the judges wrote. “Engaged leadership by chief judges and the heads of each court unit sends a powerful signal to our community that everyone must support a safe and civil workplace.”

McKeown and Robinson expressed concern about features of the Judiciary Accountability Act, a bill pending in Congress. They said the bill’s reliance on a national commission to oversee workplace issues might impede reporting of possible misconduct.

“The JAA removes avenues for reporting misconduct, possibly discouraging reporting,” the judges said. “Some employees might be hesitant to report misconduct to a national, centralized entity, rather than within the familiar ambit of their particular court or circuit.”

The judges said the Working Group’s strategy is a better fit for the Judiciary than overseeing all workplace conduct issues through one nationwide office.

“We have established a system that empowers employees to seek advice and guidance from experts at the local, regional, or national level, and empowers them to seek resolution through informal advice, assisted resolution or a formal complaint procedure,” the judges wrote. “This is more likely to be used and to be more effective than a single national oversight body.”

“Solutions that work must account for the unique needs and governance of a particular workplace, which for the Judiciary includes a dispersed, regionalized structure,” they added.

They also said a national commission, accountable to Congress and the Executive Branch, could disrupt the delicate balance between the government’s three branches.

“By inserting Congress and the Executive Branch within internal Judiciary governance,” they wrote, “in the form of a Commission with vast reporting and investigative authorities, including subpoena powers, appointed by and in continual communication with the political branches, the JAA creates a risk that it could be used by the political branches or others to influence, intimidate, harass, or punish judges, or could target its investigative resources at judges based on their decisions, perceived political affiliations, or the party of their appointing president.”

The Judges concluded their testimony by urging that the Judiciary’s system be allowed to remain in place and continue to take root. 

“Making premature or sweeping changes could undo several years of steady improvement,” they testified, “with no assurance that alternatives would lead to an improved workplace, more reporting, greater employee trust, or more effective responses to complaints.”