Judicial touching

Recently, 2 judges were sanctioned for touching people in the courthouse.

The West Virginia Judicial Investigation Commission unequivocally held:  “Unwanted touching is harassment.  Therefore, a judge should never intentionally touch someone without first asking permission.”  The Commission explained:

A common phrase used by almost everyone is “don’t invade my personal space!”  What does it mean and should society be cognizant of the phrase when dealing with other people?  The Merriam Webster Dictionary defines “personal space” as “the distance from another person at which one feels comfortable when talking to or being next to that other person.”  It’s the physical distance between two people in a social, family or work environment.  As the author Robert Sommer said, “Personal space refers to an area with invisible boundaries surrounding a person’s body into which intruders may not come.”

The study of personal space is called proxemics.  There are four distinct personal space zones:  intimate (0-2 feet); personal (2-4 ft.); social (4-12 ft.) and public (more than 12 ft).  Deference for a person’s space is a sign of respect for the person.  No one should ever invade someone’s personal space in a work setting without permission.  Consequently, no one should intentionally touch someone in a work setting without permission or even in jest.  As noted by Anthropologist Jane Goodall once said, “You have to realize that touching is a real violation of personal space.”

Thus, based on an agreement that included the magistrate’s resignation, the Commission publicly admonished a now-former magistrate for coming up behind a court employee at work and placing his hands on her hips.  In the Matter of Cole, Public admonishment (West Virginia Judicial Investigation Commission April 29, 2021).  The touching was unwelcome and made the employee uncomfortable, but she did not say anything to the magistrate because of his position.  The employee did report the incident to her immediate supervisor, who contacted the chief magistrate, who reported it to the administrative office, which investigated and filed the complaint.

The magistrate said that he had no memory of the incident although he did not deny that it happened, acknowledging that he had always found the employee truthful and had no reason to believe that she made up the incident.

The magistrate admitted that, during a birthday celebration at the courthouse in 2017, he had swatted the same employee on her rear end approximately 9 times.  The magistrate said he stopped when the employee asked him to and that everyone in the room had laughed in a good-natured way.  The employee had been embarrassed but said nothing because of the judge’s status.

The Commission found:

Respondent considers himself a jokester.  Respondent said he often liked to sneak up behind the same employee and make a loud noise or touch her back in an effort to startle her.  Respondent said the employee would jump and they would both laugh.  Respondent acknowledged engaging in such activity with other employees.  Under repeated questioning, Respondent refused to admit that his actions were improper.  Instead, he claimed that he was just being spontaneous, that his actions were intended to be humorous and that he was trying to have some fun. . . .  Respondent declined to acknowledge that any unwelcome touch is an unwarranted touch or that an uneven balance of power would cause an employee to refrain from complaining about an unwanted touch. 

The magistrate agreed to stop spanking employees but “saw no need to stop touching people in an effort to scare them . . . .”

The Commission concluded that the magistrate’s touching of the employee “clearly constituted harassment . . . .  There is no place in the judiciary for a judge who has no respect for boundaries.  By his actions, Respondent cast shame on the whole judiciary and no longer deserves the title of judge.”

* * *

A Texas judge was admonished for approaching a legal assistant in his courtroom, touching her on the arm or shoulder, and rebuking her for sitting in a section of the courtroom reserved for attorneys.  In re Wilson (Texas Special Court of Review May 4, 2021).

The judge took office on January 1, 2019.  On January 29, Sarai Garza, a legal assistant for an attorney, was seated on the first bench in the judge’s courtroom, where, she testified, she had always sat with attorneys, interpreters, and other legal assistants in her 11 years as a legal assistant.

On that day, the judge apparently mistook Garza for the interpreter, saying, “Lady interpreter, are you ready?”  Noting that he was looking at her, Garza introduced herself and said that she was not the interpreter but that she would be “more than glad to help.”  Garza said that “everyone in the courtroom started laughing.”

Blasa Lopez, the interpreter, then entered the courtroom.  The judge left the bench, walked toward Lopez, and grabbed her arm.  Garza walked toward them to clear up the confusion about who the interpreter was.  Then, Garza testified, the judge grabbed and “jiggl[ed]” her right arm and told her in an “angry” and “very upset” voice that she could not sit where she had been sitting.  Garza said that his touch was painful, that she had not expected him to grab her arm in that manner, and that she was speechless.  Garza left the courtroom crying.

Lopez and an attorney who had been in the courtroom testified that they saw the judge grab Garza by the shoulder or arm.  An attorney called by the judge as a witness testified that the judge “came off the bench” in a packed courtroom of “probably 300 people,” “touched [Garza] on the elbow like [he was] trying to get somebody’s attention,” and told her that she could not be on that side of the courtroom. 

According to Garza, the judge grabbed her arm so hard that it was bruised.  Approximately 2 days later, Garza had a medical examination that indicated she presented with “[r]ight biceps and triceps, mild swelling with tenderness.” 

Lopez texted her supervisor to report the incident; the presiding judge filed the complaint with the Commission.  The incident generated a great deal of media attention.  Police investigated, but a grand jury declined to indict the judge.

The judge denied touching or grabbing Garza, or at most admitted to lightly touching her elbow or shoulder.  When asked if it was ever appropriate for a judge to touch a person in open court without their consent, the judge replied, “When a judge gently touches someone . . . it is not sexual harassment, it is not objectionable.”

The Texas Special Court of Review concluded that, “although Judge Wilson claims to not remember touching Garza, every other witness who was present . . . testified that Judge Wilson touched Garza in some way.”  The Court stated that it did not need to resolve whether the judge “forcefully touched or grabbed Garza because it is uncontested that the touching was without Garza’s permission.”  The Court also concluded that the judge’s conduct was willful because he had intended to touch Garza without her consent and to publicly admonish her in his crowded courtroom.  The Court found that the judge had failed “to treat Garza with patience, dignity, and courtesy” as required by the code of judicial conduct.

In mitigation, the Court noted that the judge had been in office for less than 30 days at the time of the incident and that the record revealed no previous or subsequent complaints against him.  However, in aggravation, it emphasized:

The misconduct took place in a public courtroom setting while Judge Wilson was robed and acting in his official capacity as a sitting judge.  The preponderance of the evidence shows that Judge Wilson’s behavior showed no regard or respect for Garza and caused her to be publicly embarrassed. . . .  Judge Wilson has largely failed to acknowledge that the charged misconduct against Garza occurred and has thus failed to take responsibility for his actions.

The Court rejected the judge’s argument “that it was ‘not objectionable’ ‘[w]hen a judge gently touches someone.’” 

The State Commission on Judicial Conduct had also ordered the judge to complete 2 hours of instruction about sexual harassment with a mentor; the Court modified that requirement to 2 hours of instruction about decorum.

Throwback Thursday

20 years ago this month:

  • Adopting the findings of fact and conclusions of law of 3 masters, the California Commission on Judicial Performance publicly censured a former judge for (1) malingering by falsely claiming to be ill; (2) failing to cooperate in the administration of court business; (3) giving non-judicial activities precedence over and allowing them to interfere with his judicial duties; and (4) persistently failing to perform his judicial duties.  Inquiry Concerning Murphy, Decision and Order (California Commission on Judicial Performance May 10, 2001).
  • The Michigan Supreme Court suspended a judge for 6 months without pay for persistently interfering in and frequent interrupting 8 criminal trials from 1994 to 1997 and being impatient, discourteous, critical, and severe toward jurors, witnesses, counsel, and others.  In re Moore, 626 N.W.2d 374 (Michigan 2001).
  • Adopting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 15 days for telling police officers after an accident that the other driver was “doing 85 miles per hour” and requesting that the other driver’s name be run on the Law Enforcement Information Network and that the other driver be ticketed.  In re Brown, 626 N.W.2d 403 (Michigan 2001).
  • Following the judge’s waiver of a formal hearing and pursuant to a stipulation, the Nebraska Commission on Judicial Qualifications publicly reprimanded a judge for criticizing a fellow judge during courtroom proceedings, making a heated private conversation with an attorney public, and participating in an angry dispute with an attorney in open court.  In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications May 17, 2001).

Not a matter of management style

The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Sexual harassment and fidelity to procedures

As discussed in a previous blog post, in September 2019, the Judicial Council for the U.S. Court of Appeals for the 10th Circuit publicly reprimanded and admonished Judge Carlos Murguia, a U.S. District Judge for the District of Kansas, for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, nonwork-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was on probation for state-court felony convictions; and (3) being habitually late for court proceedings and meetings for years.

A review of that decision was begun by the U.S. Judicial Conference Committee on Judicial Conduct and Disability, focusing on whether the judge’s conduct might be grounds for impeachment, including whether there was a pattern and practice of judicial misconduct and whether the judge’s “failure to cooperate in and lack of truthfulness during the misconduct proceedings, which unnecessarily delayed the proceedings and prevented fulsome corrective action, constituted additional judicial misconduct.”

However, the U.S. Judicial Conference Committee concluded the proceedings after the judge resigned.  The Committee has previously held that the Judicial Conduct and Disability Act does not apply when a judge is no  longer in office.  The Committee did not release the report of the special committee, did not make additional findings or conclusions, and did not describe the conduct that the Judicial Council had found constituted sexual harassment.  It did provide some additional details “to the extent necessary to demonstrate fidelity” to its procedures but only those that did not jeopardize the confidentiality and anonymity requested by the victims and witnesses.

Below is a timeline of the Murguia case:

2016

4/2016             Judges in the District of Kansas begin receiving information from judicial employees about Judge Murguia and give that information to the Chief District Judge.

5/2016             The Chief District judge reports to the Chief Circuit Judge that a former employee of Judge Murguia alleges that he had sexually harassed her.

10/2016           The Chief Circuit Judge conducts an informal investigation; Judge Murguia expresses remorse and agrees to participate in assessment and treatment by a medical professional.

Sometime after 10/2016
The Circuit’s certified medical professional indicates that the judge had successfully completed treatment.

2017

2/2017             The Chief Circuit Judge notifies Judge Murguia that, although there was credible evidence of misconduct, a formal complaint would not be filed against him because he had admitted his improper behavior, seemed willing to correct his behavior, and his evaluation and treatment had been successful.

11/2017           The Circuit learns of more allegations about Judge Murguia and hires a retired FBI investigator to investigate.

2018

8/2018             Based on information gathered during the investigation, the Chief Circuit Judge identifies a complaint of judicial misconduct.

9/2018             The Chief Circuit Judge appoints a special committee to investigate.  14 former and current staff members are interviewed, including 3 judicial employees whom Judge Murguia had allegedly sexually harassed.

2019

4/23/2019       The special committee holds a hearing that includes testimony by Judge Murguia.

7/2019             The special committee issues a report to the Judicial Council.

9/30/2019       The Judicial Council issues its reprimand and admonishment.

2020

2/6/2020         In a letter to the secretary of the U.S. Judicial Conference, the Chief District Judge, and the Chief Circuit Judge, the House Judiciary Committee states that the Judicial Council’s order raises questions about “the adequacy of the Judiciary’s recent steps to better protect its employees from wrongful workplace conduct.”

2/18/2020       Judge Murguia resigns effective April 1.

3/3/2020         Based on his resignation, the U.S. Judicial Conference Committee concludes disciplinary proceedings against Judge Murguia.

3/6/2020         In a joint statement, several members of U.S. House argue that the U.S. Judicial Conference Committee’s order “unfortunately underscore[s] that the judiciary’s processes for handling workplace misconduct continue to fall short.”

 

Nothing new here

In a recent judicial discipline case involving unwelcome comments to a court clerk, the judge blamed the clerk because she had not said:  “‘Judge, I’m uncomfortable with your manner or the statement you made,’” claiming, “I can assure you that I would have apologized and changed my behavior.  It does me no good to have my co-workers dislike me.”

The New York State Commission on Judicial Conduct easily rejected that argument, explaining that the clerk did not have an obligation to tell the judge that she “did not approve of his comments” but that he had a responsibility “to not make sexist comments to a court employee” in the first place.  In fact, the Commission found that the judge’s “misapprehension” about whose fault it was compounded his misconduct.

The Commission also emphasized that this responsibility was not new:  over 20 years ago it had held that, “remarks of a personal and sexual nature to a subordinate are especially egregious, even if the woman does not protest and even if the judge makes no explicit threats concerning job security.”  In the Matter of Dye, Determination (New York State Commission on Judicial Conduct February 6, 1998).  It quoted an even older decision:

The cajoling of women about their appearance or their temperament has come to signify differential treatment on the basis of sex.  A sensitized and enlightened society has come to realize that such treatment is irrational and unjust and has abandoned the teasing once tolerated and now considered demeaning and offensive.  Comments such as those of respondent are no longer considered complimentary or amusing, especially in a professional setting.

In the Matter of Doolittle, Determination (New York State Commission on Judicial Conduct June 13, 1985).

The Commission concluded that, as an experienced lawyer and judge, the judge should have realized that “sexually charged remarks have no place in a courthouse,” particularly to a court employee “given the imbalance of power in their respective positions.”

Chief Clerk Debbi Singer had testified that, after a court luncheon, the judge had stopped in her office to say he really liked the dish that she made and added:  “‘If I knew you could also cook, I would have gone for the widow.’”  Singer, a widow, was “surprised, shocked, and disgusted” and did not find the comment humorous.

Further, a month later, the judge was in Singer’s office, and she began to use a fan because she was having a hot flash.  After she explained and apologized to the judge, he replied, “It’s nice to know I still have that effect on you.”

Also that month, Singer testified, the judge walked by her office, stopped, stepped in, and said to her, “You look really hot in that outfit.  You should always wear that outfit.”  Singer was again “shocked and disgusted” by the judge’s unwelcome comment.

The New York Commission removed the judge for his inappropriate comments to Singer and for berating and demeaning a female court assistant; allowing his court secretary to prepare a letter as part of his effort to obtain payment for legal work that he had performed prior to becoming a full-time judge; and failing to timely and accurately report his income from his extra-judicial activities to the Ethics Commission for the Unified Court System, the IRS, the New York State Department of Taxation and Finance, and the clerk of the court.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct February 14, 2020).  The judge has asked the Court of Appeals to review the determination.

The case is the second involving sexual misconduct so far this year from New York.  In the first, the judge had resigned and agreed not to serve in judicial office again after being informed that the Commission was investigating allegations that, from 2005 through 2019, he had “made improper and at times abusive personal demands of court staff, directly or indirectly conveying that continued employment required submitting to such demands, and creating a hostile workplace environment.”  In the Matter of Rosenbaum, Decision and order (New York State Commission on Judicial Conduct January 23, 2020).  As described in the winter 2020 issue of the Judicial Conduct Reporter, 11 judicial discipline cases in 2019 involved sexual misconduct by judges.

Necessary professional distance

Adopting the findings of 3 masters, the California Commission on Judicial Performance removed a judge from office for (1) engaging in a pattern of conduct toward a deputy public defender that was unwelcome, undignified, discourteous, and offensive; (2) making unwelcome, undignified, discourteous, and offensive comments to other female attorneys, his court reporter, and female defendants; (3) remanding a defendant into custody without resetting bail in open court and engaging in an ex parte communication with the deputy district attorney about the case; (4) revoking a criminal defendant’s own recognizance release in the defendant’s absence without notice and an opportunity to be heard and creating the appearance that he was retaliating for a peremptory challenge; and (5) failing to always disclose his son’s employment in the district attorney’s office.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019).

For example:

  • The judge told a deputy public defender words to the effect of, “Sometimes having you in here is like having a teenage daughter—you constantly argue with me and you just keep talk, talk, talking until you get what you want,” and, “It’s a compliment. Take a compliment.”
  • The judge winked at the deputy public defender during a hearing and called her to the bench to ask her if she saw him winking at her.
  • During a conversation with her in his chambers, the judge called the deputy public defender a “hard one” and told her, “Your parents hadn’t spanked you enough.”
  • The judge called the deputy public defender to the bench to ask if she was mad at him 10 to 15 times in 2016 and 2017.
  • Between 2014 and 2017, the judge told a second deputy public defender that she looked like an actress on the television show “Doc Martin” 12 to 20 times during her weekly appearances, often saying, “I saw you on TV last night.”
  • On 5 or 6 occasions, in the presence of grand jurors, the judge referred to a deputy district attorney as “beautiful” or “lovely” and one of his “favorite” attorneys.
  • The judge asked a second deputy district attorney personal questions, including about her ethnicity, her childhood, and her relationship with her father, asking her once “what kind of Asian” she was.
  • The judge told his court reporter, “You’re so pretty. I don’t know how you do it,” and “you are hot” on different occasions.
  • The judge occasionally commented to prospective jurors that his court reporter was “quite tall” and “very pretty,” and that they would “enjoy looking at her.”
  • The judge made comments about the physical appearance of female defendants, including telling some that they were “pretty” and should avoid drinking and driving and tattoos.

The Commission concluded:

Much of Judge Laettner’s misconduct reflects a pattern of engaging with attorneys appearing before him in a manner that is governed by his emotions, rather than by the California Code of Judicial Ethics.  His desire to have certain attorneys like him and not be upset or “mad at him” about his rulings, and action he has taken when he was angry or upset with them, has, at times, overridden his compliance with the canons of judicial ethics.  The factual findings of the special masters suggest that Judge Laettner failed to maintain the necessary professional distance between himself and attorneys appearing before him, or that he became embroiled. . . .

The Commission repeated the masters’ explanation for why it is inappropriate for a judge to compliment an attorney’s appearance.

Saying that a female attorney is beautiful or otherwise commenting upon her looks lifts Lady Justice’s blindfold by suggesting that one of a person’s immutable characteristics, her appearance, matters to the judge; suggesting that the judge is partial to the woman he has declared to be beautiful.  Even though the judge may have meant the comment to be an innocent courteous compliment, intended to create and maintain a “friendly” and “collegial atmosphere,” does not excuse such a statement.  Whether the recipient of the comment was offended or made uncomfortable . . . or not . . . is not the issue upon which the propriety of the statement turns.  The reason a judge’s declaration that someone is beautiful or attractive is misconduct is due not only to its effect on the person to whom the comment was directed, but also because of the potential impact the statement has upon those who may not perceive themselves as attractive or beautiful.  If two attorneys appear before a judge, and one attorney perceives herself to be unattractive, and the judge says to the other attorney, “Here is the beautiful Ms. Bell,” it is reasonable for the other attorney to question the fairness and impartiality of the judge.

The judge argued that he had not known that comments about the physical appearance of women were improper, but the Commission found that he “should have been on notice,” noting the ethics training judges receive and the information in the California Judicial Conduct Handbook.

Acknowledging substantial evidence that the judge had had “an exemplary work ethic” and “been a responsible, conscientious judge, and an asset to his court” during his 13 years on the bench, the Commission stated  that it would have censured, not removed him, based only on his misconduct.  However, the masters had also found that the judge was “not credible” in 6 instances and that his testimony was “impeached” in another and rejected much of his testimony in favor of that of other witnesses.  The Commission also emphasized that the judge had not fully accepted responsibility for his behavior, noting that, although he acknowledged generally the impropriety of his comments, he continued to deny responsibility for significant acts of misconduct and to blame others, particularly the public defender’s office.

Thus, the Commission concluded that the judge’s lack of candor and “his selective and limited acknowledgment of his misconduct” made removal the appropriate discipline.

 

Not “a normal working environment”

Stating that it took seriously its responsibility for setting precedent concerning sexual harassment, “to protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the Ohio Supreme Court recently suspended a former judge indefinitely from the practice of law for his predatory sexual conduct and other misconduct.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019).  The Court did note that “an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment” but that it was appropriate “given the number of other violations, the harm to individual victims and to the public trust, the significant number of aggravating factors, and the limited mitigating evidence.”

The judge had served on the Court of Common Pleas from 2006 until he joined the 10th District Court of Appeals in 2015.  He resigned effective February 28, 2019.

The Court found that the judge, while on the trial court, “created an inappropriate atmosphere in his office by telling members of his staff they were sexy during the work day and commenting on the attractiveness of other employees.”  For example, he told M.B., a law student intern, that he had asked her to attend a meeting so that he would have “something pretty to look at.”  Several members of his staff believed they could not turn down the judge’s frequent invitations to go out for happy hour at bars when, he admitted, his behavior “was ‘rude’ and ‘obnoxious.’”  The Court found that the judge’s “conduct was beyond rude.”  For example, he told Emily Vincent, his staff attorney, that her tights were sexy and that he would get in trouble for telling her how he would make her over.

The Court also found that the judge’s behavior with M.B., who was 23 years old at the time, and his secretary Elise Wyant, who was 25, “was even worse.”

Following one happy hour, after M.B. had completed her internship, but while she was still a law student, she and Horton engaged in sexual conduct. . . .  On three other occasions, Horton encouraged his friends to touch M.B. inappropriately, and she was groped by his friends on at least two occasions, at Horton’s insistence.  Horton also repeatedly told Wyant that she “looked sexy” and that he wanted to “f**k” her.

M.B. described feeling as though the judge was grooming her.

Wyant admitted that she had joked with the judge and engaged in explicit sexual conversations with him.  When asked why, Wyant explained that was “the culture that he created in the office.”

“He would talk about things that—that he wanted to talk about, and so when, you know, I was talking about my personal life I took the direction from my leader and, you know, I would get personal with my stories, too.”

She described how she “came to realize that this—through conversations with friends and—like, this wasn’t normal, this wasn’t a—a normal working environment.  This culture that he created wasn’t a good one and it wasn’t professional at all.”

When M.B. was asked why she had consented to sexual conduct with the judge even though she did not want to, she explained:  “I felt like I had to do what Judge Horton wanted me to do.  And, you know, I think at the time, 23 at this point, like, I was naive, certainly, but I also think I was just doing the best that I could, you know.”  M.B. further explained:

[T]his is a person who has power over me and I have to go along with what he says.  And I don’t know, like, why I still trusted him, and thought, you know, it would be different, perhaps.  I still saw him as a mentor, which sounds ridiculous after he’s done these horrible things to me; right? . . .  It occurred so incrementally that you almost didn’t see it coming, you know, like you didn’t realize how bad the situation you were in until it was too late to do anything about it, you know.  And I—I think there was also, like, a lot of self-blame involved of, you know, it must be—it must be my fault because, like, he’s—he’s turned me into this sexual object, and so, like, this is just what I know and this is how it works, you know.

Rejecting the judge’s argument that Wyant and M.B. had consented to his sexual conduct and statements, the Court explained:

Even if Horton’s sexual misconduct was not criminal or did not create civil liability, the Code of Judicial Conduct does not merely proscribe crimes or discrimination—it recognizes the power and authority of judges and sets a higher standard.  It also does not police the conduct of judicial employees.  The Code of Judicial Conduct is specifically concerned with the actions of judges.  The issue is not whether Wyant objected to each of Horton’s inappropriate statements or acquiesced to the inappropriate culture Horton created at his office or if M.B. implicitly consented to his sexual conduct.  Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary.

As a judge and a supervisor, Horton held a position of power over his staff and interns.  He repeatedly emphasized his power and the importance of loyalty to him.  And it seems to be no coincidence that Horton’s most egregious behavior occurred with and around the younger, less professionally experienced members of his staff who he could more easily manipulate.

Continuing to emphasize a judge’s responsibilities, the Court rejected the judge attempt to blame his staff for working on his campaign for the Court of Appeals during work hours and at public expense, using county resources.  The judge admitted that he had told his staff, “If you want to work on [the campaign], you want to volunteer, that’s great, you know I would appreciate it.”  Although the judge phrased the statement as an invitation and not a directive, his secretary and staff attorney testified that they did not feel comfortable not volunteering for his campaign.  His staff also testified that the judge asked them to conduct campaign business during hours when they would normally be performing county work.

The Court blamed the judge’s “decision not to keep a closer eye on his employees’ time or to create a stronger ethic of professionalism in the office,” noting that “the employees’ culpability is not at issue.”  The Court explained:

If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules.  If a judge does not feel confident about his or her ability to make and enforce such rules, then the judge should not accept assistance from public employees.

The judge had also pled guilty in state court to 3 counts of causing inaccurate campaign finance reports to be filed with the secretary of state, admitting that he had reported expenditures that he knew were excessive and unreasonable.

“Transparency and a powerful disincentive”

Adopting the conclusions of a special committee, the 10th Circuit Judicial Council publicly reprimanded a U.S. District Judge for the District of Kansas for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was then on probation for state-court felony convictions and is now incarcerated for probation violations; and (3) being habitually late for court proceedings and meetings for years.  In re:  Complaint under the Judicial Conduct and Disability Act (Murguia), Order (Judicial Council for the U.S. Court of Appeals for the 10th Circuit September 30, 2019).  The Council also stated that, in a private letter, it was requiring the judge to take “certain corrective actions” to which he agreed.  The judge also agreed to waive his right to seek review of the order.  The special committee’s investigation included interviews with 23 people and a hearing at which the judge testified under oath.

(1) The committee found that the judge gave preferential treatment and unwanted attention to female employees of the judiciary “in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.  All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge.  One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.”

(2) The committee found that the judge “engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions.”  The Council stated that a judge’s sexual affair, even with a convicted felon, is not always misconduct but agreed with the committee’s finding that the judge “placed himself in such a compromised position that he made himself susceptible to extortion” and that “given the risk of extortion and potential for embarrassment to the Judiciary, Judge Murguia’s relationship implicates Code of Conduct Canons 1 and 2.”

(3) The committee stated that the judge has been habitually late for court proceedings and meetings for years, noting general agreement among witnesses that he “was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms.”  The committee found that the judge’s regularly scheduled lunchtime basketball games was a repeated cause of his tardiness.  The committee noted that the judge’s tardiness persisted even though he had been “counseled about his tardiness fairly early in his federal judicial career . . . .”

The judge admitted that he engaged in the misconduct, apologized during the investigation and proceedings, and assured the Council that he would not engage in this or any other inappropriate conduct in the future.  The committee found no evidence that his misconduct continued after he was served with the complaint and noted he offered to take voluntary corrective action.

However, the Council noted, the judge had been less than candid with the committee, failing to disclose the extent of his misconduct when initially confronted with the allegations and admitting “allegations only when confronted with supporting documentary evidence.”  The Council concluded that “his apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.”  The Council emphasized that the judge’s misconduct “is very serious and occurred over a lengthy period.”

The Council found that the judge’s conduct “was too serious and the importance of maintaining the integrity of the Judiciary in the mind of the public too important for a private reprimand.”  The Council concluded that, although a “public reprimand may cause embarrassment to the Judiciary, misconduct that rises to this level calls for transparency and a powerful disincentive.”  Noting that a public reprimand is the most severe sanction available it could impose, the Council also concluded that the matter was “insufficient to recommend the Judicial Conference refer this matter to Congress for impeachment” “considering the statutory requirement for certifying a misconduct matter for impeachment, . . . and the applicable constitutional standard of ‘high Crimes and Misdemeanors.’”

With respect to the sexual harassment allegations, the Council cited several provisions in the Conduct of Conduct for U.S. Judges and the Rules for Judicial-Conduct and Judicial-Disability Proceedings that were part of “a package of workplace conduct-related amendments” adopted in March 2019 by the U.S. Judicial Conference.  The 10th Circuit cited:

Canon 3B(4):  “A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff.  A judge should not engage in any form of harassment of court personnel.  A judge should not retaliate against those who report misconduct.  A judge should hold court personnel under the judge’s direction to similar standards.”

Comment to Canon 3B(4):  “Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others.”

Rule 4(a)(2)(A):  “Cognizable misconduct includes:  . . . engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.”

#MeToo and the judiciary

Top judicial ethics stories of 2018

The #MeToo movement to hold accountable people in authority (usually but not always men) for their sexual misconduct in the workplace began in October 2017 in Hollywood and has since spread to many other professions.  That the theme of “Time’s Up” would apply to the judiciary was clear by December 2017, with the publication of allegations about Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.  As Chief Justice Roberts wrote in his 2017 Year-End Report on the Federal Judiciary:  “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.”

The timeline for the Kozinski scandal is:

2017

December 8
The Washington Post publishes an article entitled:  “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct.”

December 14
Based on the 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.

December 15
The Washington Post publishes a second 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 Judicial Council for the 2nd Circuit.

December 19
Judge Kozinski retires.

2018

February 5
Based on Judge Kozinski’s retirement, the 2nd Circuit Judicial Council concludes the complaint against him.

April 17
The U.S. Judicial Conference Committee on Judicial Conduct and Disability forwards a copy of the 2nd Circuit Judicial Council’s order to the House of Representatives Judiciary Committee chair and ranking minority member, the Speaker, and the minority leader.

December 10
Kozinski is co-counsel on a brief on behalf of the appellant filed in the 9th Circuit.


* * *
Apparently but not expressly prompted by the Kozinski revelations, in his 2017 year-end report, Chief Justice Roberts announced creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace.  The federal courts have assiduously kept the public informed of their progress:

March 13
The federal working group describes nearly 20 reforms and improvements that have been implemented or are under development.

May 1
Based on the work of its own committee, the U.S. Court of Appeals for the 7th Circuit adopts a “Policy on Equal Employment Opportunity, Discrimination, Harassment, and Employment Dispute Resolution.”

May 21
Based on the work of its own committee, the 9th Circuit Judicial Council adopts revised policies and procedures regarding workplace environment for all employees, including law clerks.

June 4
The federal working group issues a report with findings and recommendations to improve workplace conduct policies and procedures.

September 13
The U.S. Judicial Conference Committee on Codes of Conduct and Committee on Judicial Conduct and Disability publish for public comment proposed amendments to the Code of Conduct for U.S. Judges and to the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  The Judicial Conference also approves changes to the judiciary’s model employment dispute resolution plan to cover interns and externs and to extend the time for initiating complaints from 30 to 180 days.

October 30
The committees hold a public hearing on the proposed changes to the code and the rules.

November 28
The D.C. Circuit adopts policies and procedures to improve the handling of and response to workplace misconduct issues.

December 4
The Administrative Office of the U.S. Courts appoints the first judicial integrity officer for the federal judiciary.

December 31
In his 2018 Year-End Report on the Federal Judiciary, Chief Justice Roberts provides an up-date on the working group’s efforts, endorses its recommendations, and explains that the proposals will be fine-tuned before the next meeting of the Judicial Conference in March 2019.

2019
March 12
The U.S. Judicial Conference approves “a package of workplace conduct-related amendments,” including amendments to the Code of Conduct for U.S. Judges, the Code of Conduct for Judicial Employees, and the Judicial Conduct and Disability Act Rules.

* * *
With respect to state courts, on January 31, 2018, the Conference of Chief Justices adopted a resolution encouraging “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.” Most states already had sexual discrimination and harassment policies, but some have recently adopted new or revised procedures or announced committees to make recommendations for up-dates.  So far:

  • The Chief Justice of the Alaska Supreme Court announced the creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures.
  • The Arizona Supreme Court adopted a new section on discrimination and harassment to the Code of Judicial Administration.
  • The Chief Justice of the California Supreme Court created an 8-member working “group to study and make recommendations for how the judicial branch can prevent and address harassment, discrimination, or inappropriate workplace conduct.”
  • The Florida Supreme Court adopted “Sexual Harassment Policy and Procedures for Sexual Harassment Complaints against Justices and Judges,” replacing a policy adopted in 2004.
  • The New Jersey Supreme Court adopted a “Revised Judiciary Policy Statement on Equal Employment Opportunity, Affirmative Action and Anti-Discrimination.”

In October, the National Center for State Courts created a “repository for resources to assist the state courts in developing or updating training, policies, and procedures” regarding workplace harassment.

* * *
It is too early to tell whether the #MeToo movement will result in more judges being publicly disciplined for sexual harassment; even if there has been an increase in complaints about such conduct to conduct commissions since October 2017, many of those matters would still be in the confidential investigation phase, particularly if the allegations are extensive and disputed.

There were several resignations in 2018 that terminated investigations of workplace misconduct.

  • Based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a magistrate had inappropriate relationships with court employees and attorneys during court hours and on court property. In the Matter of Shoulders, Stipulation and agreement for resolution of investigation (Indiana Commission on Judicial Qualifications May 2, 2018).
  • According to the Omaha World-Herald, in February, a Nebraska Supreme Court justice resigned following a complaint to the Judicial Qualifications Commission; reportedly, the allegations were “in line with the national #MeToo movement,” and attorneys and former colleagues, including 2 women, told the newspaper that his judicial career “has been pocked with sexual comments to women.”
  • According to the Washington Post, the Maryland Commission on Judicial Disabilities told a former court administrative aide in January that it had decided to file charges based on her complaint that a trial judge had created a sexually charged work environment, but, in May, the Commission notified her that the charges were being “held in abeyance” in light of the judge’s announcement that he was retiring effective June 1.
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a judge it had begun investigating after receiving a letter from the judge’s attorney about events described in an article in D Magazine entitled “Ardor in the Court” about the judge’s alleged affair with an attorney who was serving as counsel for one of the parties in a high value probate matters over which the judge was presiding. Peyton, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct January 26, 2018).

There were several judges publicly sanctioned for sexual misconduct in the workplace in 2018.

  • The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office. Inquiry Concerning Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018).
  • Accepting the parties’ stipulation of facts, the Massachusetts Supreme Judicial Court indefinitely suspended a judge without pay and publicly censured him for his sexual relationship with a member of the drug court team; the Court also ordered that a copy of its order be delivered to the governor and the legislature. In re Estes, Order (Massachusetts Supreme Judicial Court May 24, 2018).  The judge resigned after the decision.
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for hiring a woman with whom he had an intimate relationship and making inappropriate comments to her during office hours, in addition to other misconduct. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city’s prosecutor. Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message, in addition to other misconduct. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • Based on a stipulation and agreement, the Washington State Commission publicly admonished a judge for responding “nine inches” after a female court clerk stated, “I have a question for you” to him after a court session. In re Kathren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

See also In re Complaint No. 05-18-90083, Memorandum (Judicial Council for the 5th Circuit November 9, 2018) () (finding that appropriate corrective action had been taken and concluding a proceeding against an unnamed magistrate judge for inappropriately pursuing social relationships with an attorney who practices before him and with a court employee).

Those cases do not necessary reflect an increase in discipline attributable to the #MeToo movement, however, because there are several such cases every year and, given the timing, most were likely initiated prior to October 2017.  See, e.g., “Sexual harassment:  Top judicial ethics and discipline stories of 2017,” Judicial Conduct Reporter (winter 2018).

There are currently several pending public judicial discipline proceedings with sexual misconduct allegations.

  • Based on a complaint by the Judicial Conduct Board, the Pennsylvania Court of Judicial Discipline has found that a judge committed misconduct by viewing images of naked and partially naked women while in his office, in addition to other misconduct. A hearing on sanctions will be scheduled.
  • Following a hearing, the Ohio Board of Professional Conduct has recommended that a court of appeals judge be indefinitely suspended for a pattern of inappropriate sexual comments and conduct with at least 2 members of his judicial staff in the workplace and outside of work, in addition to other misconduct.
  • In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a judge, in addition to other misconduct, engaged in a pattern of conduct towards a deputy public defender that was unwelcome, undignified, discourteous, and offensive and that would reasonably be perceived as sexual harassment or sexual discrimination, and made unwelcome, undignified, discourteous, and offensive comments, some of which would reasonably be perceived as sexual harassment or sexual discrimination, to and about other female attorneys who appeared before him and to and about other women who appeared or worked in his courtroom, including a court reporter and litigants.
  • In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a justice, in addition to other misconduct, engaged in a pattern of conduct that was unwelcome, undignified, discourteous, and offensive, and that would reasonably be perceived as sexual harassment or as bias or prejudice based on gender towards another justice on the court, California Highway Patrol officers assigned to the judicial protection section, court attorneys and other court personnel while on the California Court of Appeal and toward female court employees while a magistrate judge at the U.S. District Court for the Central District of California between 1999 and 2009.

 

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.”