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.”

Complainant anonymity in sexual harassment discipline

To encourage reporting of offenses and to protect a victim’s privacy, the New Jersey Supreme Court directed that the anonymity of the victim should be preserved in judicial discipline cases involving sexual harassment or similar conduct.  In the Matter of Seaman, 627 A.2d 106 (New Jersey 1993).  Thus, noting that sexual harassment “is personally offensive, highly invasive, psychologically hurtful, and often deeply embarrassing to the victim,” the Court referred to the complainant in the case by her initials in its decision.  It maintained the complainant’s anonymity even though her privacy had already been “shattered” because the Advisory Committee on Judicial Conduct had followed “conventional practice” and used her full name in its pleadings.  (The judge in that case had engaged in a pattern of sexually harassing behavior toward a female staff member, for example, boasting of his sexual prowess and touching her inappropriately.)  In a subsequent case involving a judge who made an unwanted advance to his law clerk, the Court explained it would follow its practice of using initials to designate the complainant even though her name was known to the public because of the publicity surrounding the matter and a civil lawsuit she had filed against the judge and the judiciary.  In the Matter of Subryan, 900 A.2d 809 (New Jersey 2006).  Accord In re Barr, 13 S.W.3d 525 (Texas Special Review Tribunal 1998) (referring to female attorneys to whom a judge made sexual comments and gestures by their initials to protect their privacy and encourage reporting even though the State Commission on Judicial Conduct had used their full names in its pleadings).

Similarly, in In re Iddings, 897 N.W.2d 169 (Michigan 2017), the Michigan Supreme Court redacted the name of the victim (the judge’s secretary), referring to her as Ms. *****, to protect her privacy.  See also In the Matter of LoRusso, Determination (New York State Commission on Judicial Conduct June 8, 1993) (referring to female court employees subjected to a course of uninvited sexual activity, touching, and crude and suggestive comments by a judge as Ms. A, Ms. B, Ms. C, and Ms. D).

Other cases refer to the subjects of the judge’s harassment simply as “complainant” or by job title, without using the person’s name.  See, e.g., Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998) (describing inappropriate conduct by a judge towards his “courtroom clerk,” not identified by name); In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014) (describing a judge’s conduct that could reasonably be perceived as sexual harassment of his court reporter without using her name); Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24 (Ohio 1993) (referring to each of 4 victims of a judge’s unwelcome and offensive sexual remarks and/or physical contact as “complainant”); In re Deming, 736 P.2d 639 (Washington 1987) (describing a “myriad of improper and offensive comments and sexual innuendos” by a judge to women, with specific examples in which the women are identified without names as an intern, a docket clerk, a deputy prosecutor, a probation officer, and a woman from the county department of assigned counsel).

In other cases, however, courts or commissions follow the usual practice and use the full names of the complainants when sanctioning a judge for sexual harassment.  See, e.g., In re Spurlock, Order (Illinois Courts Commission December 3, 2001) (intimidating and sexually inappropriate behavior toward 4 assistant state’s attorneys identified by name); In the Matter of Henderson, 343 P.3d 518 (Kansas 2015) (offensive and demeaning comments of a sexual nature to female attorneys and staff members identified by name); In re Alonge, 3 A.3d 771, (Pennsylvania Court of Judicial Discipline 2010) (conduct “akin to stalking” toward 4 female lawyers identified by name); In re Casey, Opinion (Texas Special Court of Review May 9, 2017) (identifying by full name the chief clerk with whom judge had improper sexual relationship).

 

Commitment, awareness, and training

On January 31, 2018, the Conference of Chief Justices passed a resolution “in support of commitment to awareness and training on workplace harassment” that encourages “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies:  (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.”  The resolution also provides that the National Center for State Courts “shall create a repository of resources that address workplace harassment in the state courts, including model policies and procedures.”  The explanation for the resolution states:

  • WHEREAS, the Conference of Chief Justices is committed to the rule of law and to strict observance of laws relating to conduct in the workplace; and
  • WHEREAS, the Conference of Chief Justices has historically championed gender equity in the state courts and in 1988 passed a resolution urging each Chief Justice to establish separate task forces devoted to the study of gender bias in the court system and minority concerns as they relate to the judicial system; and
  • WHEREAS, recent events have raised public awareness of pervasive sexual harassment in the workplace in government, the media, and private industry; and
  • WHEREAS, State codes of judicial conduct require judges, in the performance of their judicial duties, not to manifest bias or prejudice or engage in harassment (including sexual harassment) and not to permit court staff, court officials, or others subject to the judge’s direction and control to do so; and
  • WHEREAS, a judicial disciplinary commission exists in every state to hold judges accountable; and
  • WHEREAS, as a separate branch of government, the judicial branch has the duty to protect its employees against harassment and intimidation in the workplace.

On February 7, in his State of the Judiciary Address, the Chief Justice of the Alaska Supreme Court advised the legislature that he is creating “a working group of judges, retired judges, law clerks, court staff, and court administrators to examine what changes are needed in the Court System’s anti-Sexual Harassment policy and procedures, and to make recommendations to ensure that the Court System’s policy and procedures reflect best practices.”  He noted that the Alaska Court System has had a “zero tolerance” anti-sexual harassment policy for years, which is provided to new employees, including judges, when they are appointed.  Although stating he was “unaware of any instance of sexual harassment committed by any sitting judge or other court employee,” the Chief Justice explained that, “in the light of the grim evidence of pervasive sexual harassment and assault we have seen in the last year, including that widely reported occurring in the federal courts, I am not so naive as to think it can’t happen here” and concluded “that the Court System must do more proactively to ensure that no court employee will be subjected to sexual harassment of any kind” and “to ensure an exemplary workplace for every judge and every court employee.”

In his 2017 Year-End Report on the Federal Judiciary, Chief Justice John Roberts stated that he has asked the Director of the Administrative Office to assemble a working group “to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints.”  The Chief Justice explained:

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.

. . .  These concerns warrant serious attention from all quarters of the judicial branch.  I have great confidence in the men and women who comprise our judiciary.  I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

The Chief Justice’s action followed news stories that Judge Alex Kozinski of the 9th Circuit had sexually harassed numerous clerks.

Below is a timeline of recent events regarding workplace harassment in the judiciary.

Sexual harassment and the judiciary timeline

12/8/2017       Washington Post publishes article, “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct”

12/14/2017     Based on news reports, the Chief Judge of the 9th Circuit identifies a complaint against Judge Kozinski under the Rules for Judicial Conduct and Judicial Disability Proceedings (https://tinyurl.com/y7kj6rgo)

12/15/2017     Washington Post publishes article, “Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them”

Chief Justice Roberts transfers the complaint against Judge Kozinski to the 2nd Circuit (https://tinyurl.com/ybqdq9q8)

12/17/2017     The 9th Circuit creates a special ad hoc committee on workplace environment (https://tinyurl.com/y7adz29s)

12/18/2017     The Federal Judicial Center revises the law clerk handbook to add clarifying language regarding reporting workplace harassment (https://tinyurl.com/y8ydvsoe)

12/19/2017     Judge Kozinski retires, effective immediately (https://tinyurl.com/yauwm8e3)

12/29/2017     The 7th Circuit appoints a committee to examine its process for raising and considering claims of harassment (https://tinyurl.com/y7vb37bh)

12/31/2017     In his 2017 Year-End Report on the Federal Judiciary, Chief Justice Roberts announces creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace (https://tinyurl.com/yaxgx4gp)

1/31/2018       The Conference of Chief Justices passes a resolution “in support of commitment to awareness and training on workplace harassment in the judicial branch” (https://tinyurl.com/y8l6v993)

2/5/2018         Based on Judge Kozinski’s retirement, the 2nd Circuit Judicial Council concludes the complaint against him (https://tinyurl.com/yarbcy6k)

2/7/2018         The Chief Justice of the Alaska Supreme Court announces creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures (https://tinyurl.com/y7oqbon4)