Including but not limited to sexual harassment

Under the federal Civil Rights Act, sexual harassment is defined as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

However, “[a]lthough undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct,” a judge’s “offensive interpersonal behavior” does not have to meet the definition of sexual harassment under federal or state law to violate the code of judicial conduct and warrant judicial discipline.  In the Matter of Seaman 627 A.2d 106 (New Jersey 1993).  Accord In re Barr, 13 S.W.3d 525 (Texas Review Tribunal 1998).

For example, the North Dakota Supreme Court rejected a judge’s argument that “concepts of sexual harassment under federal and state laws should govern any assessment of the evidence” in a judicial discipline case.  In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014).  Noting “judicial disciplinary proceedings ‘are neither civil nor criminal,’” the Court stated that the code “does not require the establishment of sexual harassment under federal or state law.”  The Court suspended the judge from office for 1 month without pay for conduct toward his court reporter that she reasonably perceived as sexual harassment.

In In re Miera, 426 N.W.2d 850 (Minnesota 1988), the judge had argued that he should not be sanctioned because there had been no findings he had interfered with his court reporter’s employment or created a hostile work environment as required for a claim of sexual harassment under a state statute.  However, the Minnesota Supreme Court stated that the issue was not the judge’s “civil liability for damages but his ethical responsibilities as a judge.”  The Court concluded that the judge’s unsolicited sexual advances toward his court reporter had demonstrated a serious abuse of the power and suspended the judge for 1 year without pay for this and other misconduct.

Similarly, in Commission on  Judicial Performance v. Spencer, 725 So. 2d 171 (Mississippi 1998), the judge had argued that his treatment of the court clerk, 2 deputy clerks, and another judge did not constitute sexual harassment because he was not their supervisor and he had not threatened their jobs or engaged in other reprisals.  However, the Court held that the issue was not whether the judge’s offensive comments met the legal definition of sexual harassment but whether the comments constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.  The Court removed the judge for this and other misconduct.

Although prior to 1990 the code of judicial conduct did not expressly refer to bias or harassment, sexual harassment obviously fell within other provisions:  however else it may be characterized, conduct such as inappropriate comments and touching demonstrates a failure to be “patient, dignified, and courteous,” to promote “public confidence in the integrity and impartiality of the judiciary,” and to “observe high standards of conduct.”

In 1990, a prohibition on manifesting bias was added to the American Bar Association Model Code of Judicial Conduct, and a comment to the rule stated that “a judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment . . . .”  Rule 2.3(B) of the 2007 model code states that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment,” including but not limited to harassment based on sex or gender.  Comment 4 to that rule explains that “[s]exual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.”

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