Yesterday evening, the United States Circuit Court for the D.C. Circuit announced that courts of the circuit are implementing a series of promising changes to the their policies for responding to workplace misconduct, including gender-based harassment. The D.C. Circuit is the first to adopt a comprehensive set of reforms since the Washington Post exposed the open secret of former Ninth Circuit Judge Alex Kozinski’s sexual harassment of clerks.
The D.C. Circuit’s changes reflect the proposals set forth by current clerks, former clerks, and law students who are calling on the judiciary to address reports of severe sexual harassment and steep barriers to reporting by judicial employees.
Notably, the D.C. Circuit is adopting:
- A Workplace Environmental Climate Survey: The courts are working with the Federal Judicial Center (FJC) to develop a climate survey to measure the extent and nature of workplace misconduct facing all judicial employees. Workplace climate surveys are a widely recognized best practice that the Pipeline Parity Project and our peers have repeatedly urged the judiciary to adopt. The survey will be issued to all current court employees and former employees who have worked for the Circuit in the last five years, providing much-needed, comprehensive data about sexual harassment, race discrimination, and other workplace misconduct.
- Law Clerk and Employee Advisory Groups: The D.C. Circuit has created a Law Clerk Advisory Group of former law clerks and an Employee Advisory Group of current employees from across the Circuit. These advisory groups will serve as informal resources for current employees to obtain advice about concerns about workplace conduct. They will also provide input to the Workplace Conduct Committee on further recommendations and initiatives. Incorporating the input of those who work, or have worked, for the judiciary, will be crucial to ensure that the reforms continue to respond to the needs of those who have suffered workplace misconduct.
- Critical Accommodations for Employees Who Experience Harassment: The D.C. Circuit will create informal employee protection plans for employees (including law clerks) who experience employee misconduct, which will include transfers and alternative work arrangements in appropriate cases. Because most victims of harassment do not formally report the harassment, often because they fear retaliation, informal accommodations enable many employees to continue to succeed at work.
The plan also includes the appointment of workplace relations coordinators, who can provide informal advice to employees, an expanded timeline for EDR complaints, an exit questionnaire, and mandatory trainings (which have already begun). The D.C. Circuit’s full release is available here. Harvard Law students lauded the changes and called on all courts to adopt this plan.
Sejal Singh, a second-year student at Harvard Law School, said, “Sexual harassment is widely underreported across American workplaces. But even in context, the judiciary stands out: of 1,300 misconduct claims filed under the JC&D rules in 2016, not a single one was filed by law clerks. The Judiciary’s zero percent reporting rate highlights the judiciary’s inadequate system for handling complaints of harassment and clerks’ acute fear of retaliation should they come forward. The D.C. Circuit’s plan is a powerful step forward and we urge every circuit to match this benchmark plan.”
Emma Janger, a second-year student at Harvard Law School, said, “We are incredibly heartened to see that the D.C. Circuit has adopted these much-needed reforms to address workplace misconduct, including sexual harassment. The FJC climate survey and their new Advisory Groups will provide them with the data and personal experiences that will enable them to continue to be responsive to problems of misconduct going forward. Many employees do not come forward, fearing that they will lose their job. Thus the creation of voluntary transfer or alternative work arrangements are a clear sign from the D.C. circuit that they will enable their employees to continue to work, and to do so in a safe environment. We call on all other Circuits’ to match this benchmark plan.”
The Pipeline Parity Project’s comprehensive recommendations to the U.S. Judicial Conference regarding proposed changes to the Code of Conduct for U.S. Judges and Judicial-Conduct and Judicial-Disability Proceedings is available here. Current and former clerks’ recommendations are available here, and law students’ open letter regarding sexual harassment in the judiciary is available here.