In late October, the Washington Post shared disturbing accounts of former Hill staffers who had been subjected to lewd behavior at the workplace. Last week, news broke of allegations lodged against Ninth Circuit Judge Alex Kozinski regarding inappropriate conduct with several former female externs and law clerks.[1] Like Hill staffers, law clerks and judicial externs may be particularly reluctant to report sexual harassment for fear of suffering retaliation at the hands of the accused – likely a powerful and well-connected judge with a vast professional network. Federal clerkships are highly prestigious and extremely competitive. To openly accuse one’s judge of inappropriate behavior could have dire and lasting consequences -- not just forfeiting the clerkship but also sacrificing one’s professional reputation, connections, and any chance of a positive recommendation. But while this significant power imbalance exerts overwhelming pressure on law clerks and judicial externs not to report sexual harassment, reports of such misconduct continue to surface, likely as a result of the impactful #MeToo social media campaign.
To be clear, not all inappropriate behavior rises to the level of sexual harassment. For example, to constitute hostile environment sexual harassment, the conduct must be because of sex, unwelcome, subjectively and objectively offensive, and sufficiently severe or pervasive to interfere with the terms and conditions of employment.[2] In determining whether behavior meets this standard, courts assess the totality of the circumstances and make case-by-case determinations.
More importantly, in my own federal clerkships, I neither experienced nor ever observed anything even approximating improper behavior. To the contrary, my clerkships were among the most formative and enriching experiences of my career, and my judges were upstanding, inspirational mentors whom I still aspire to emulate. Thus, I would like to believe that these recent allegations are the exception, not the rule, and are just as disturbing to members of the judiciary as they are to the public.
Regardless, the allegations do cause one to consider whether there are more effective ways for the judiciary to prevent and promptly correct sexual harassment in chambers. While most federal judges are subject to the Code of Conduct for U.S. Judges (the “Code”) [3] as well as their court’s own local rules and internal guidelines, the Code currently says nothing specific about sexual harassment.[4] Likewise, the rules for judicial conduct available on the Ninth Circuit’s website describe “cognizable [judicial] misconduct”[5] as:
conduct prejudicial to the effective and expeditious administration of the business of the courts . . . including but . . . not limited to: (A) [nepotism] using the judge’s office to obtain special treatment for friends or relatives; (B) [bribery] accepting bribes, gifts, or other personal favors related to the judicial office; (C) [ex parte communications] having improper discussions with parties or counsel for one side in a case; (D) [hostility] treating litigants, attorneys, or others in a demonstrably egregious and hostile manner; (E) [partisan politics] engaging in partisan political activity or making inappropriately partisan statements; (F) [fundraising] soliciting funds for organizations; (G) [retaliation] retaliating against complainants, witnesses, or others for their participation in this complaint process; (H) [failure to cooperate] refusing, without good cause shown, to cooperate in the investigation of a complaint under these Rules; or (I) violating other specific, mandatory standards of judicial conduct, such as those pertaining to restrictions on outside income and requirements for financial disclosure. . . . conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.[6]
A law clerk is a member of a judge’s personal staff charged with conducting discrete legal research for the judge, drafting and editing orders, opinions, and other judicial documents, managing the docket, and otherwise serving as the judge’s “right-hand.” So it goes without saying that sexually harassing a law clerk or extern impedes the “effective and expeditious administration of the business of the courts” and could lead to a “substantial and widespread lowering of public confidence in the courts among reasonable people.” However, the rules were obviously not written with sexual harassment in mind. Instead, each example of misconduct from accepting bribes to engaging in forbidden ex parte communications relates to the importance of preserving judicial autonomy and the appearance of propriety, the lack of which could destroy the legitimacy of judicial proceedings. None of the items expressly concern the safety and wellbeing of judicial employees, which would be abundantly clear (and perhaps discouraging) to a victimized staff member.[7]
To make matters worse, the Ninth Circuit’s web page discussing complaints of misconduct is primarily devoted, not to explaining what could constitute misconduct, but instead to detailing what a complainant must do “to avoid the rejection or summary dismissal of your complaint” and reciting the hoops a complainant must jump through to file a complaint.[8] The page further cautions that “[a]lmost all complaints in recent years have been dismissed because they do not follow the law about such complaints.” To some extent, this level of ardent dissuasion is understandable. It clearly aims to prevent frivolous complaints against judges -- veritable appeals-in-disguise -- that have little or nothing to do with judicial misconduct and instead arise mainly from dissatisfaction with a judicial outcome. Yet at the same time, few, if any, judges handling a sexual harassment complaint against a private company would praise an employee handbook whose sexual harassment policy began with “[a]lmost all complaints of sexual harassment are summarily dismissed by company management.” So why should judges play by different rules than the employers that so often appear before them? Perhaps in this instance, courts can borrow mechanisms from their private sector counterparts to preempt or at least promptly correct future instances of sexual harassment.[9]
First, courts should establish an effective, stand-alone policy that specifically addresses sexual harassment and other sexual misconduct. It should clearly define what harassment entails and provide a non-exhaustive list demonstrating examples of improper behavior. The policy should explain a reasonable procedure for reporting harassment that provides multiple effective avenues of complaint, meaning that several different individuals are listed. (This aims to ensure that the sole person to whom one must report the harassment is not the alleged harasser.) The policy should also indicate repercussions for not reporting and potential consequences of violating the policy. It should also prohibit any form of retaliation against an individual who reports a policy violation or assists in an investigation of alleged misconduct. Courts should further require all judges and judicial employees to read the policy and then sign an Acknowledgement Form at the outset of their employment warranting that they have read and understood the policy and agree to comply with it.[10] The policy should also be posted on the court’s intranet and regularly updated.
Second, courts should require all judicial employees from judges to janitors to undergo sexual harassment training at least once a year perhaps as part of an overarching training that addresses other relevant matters from chambers confidentiality to court cybersecurity.
Third, the court’s Human Resources (“HR”) personnel should review the policy with all new employees, including law clerks, within the first week of their employment, if not before they commence their clerkships. HR should clearly explain the reporting procedures and remind law clerks that the cloak of chambers confidentiality does not envelop inappropriate behavior. At the same time, however, HR should encourage judicial employees to follow the internal reporting mechanisms to provide the court with a reasonable opportunity to promptly remediate the behavior.
Fourth, judges should be encouraged to have candid conversations in chambers regarding their expectations for collegiality and professionalism between and among law clerks as well as between law clerks and judges. They should consider prohibiting romantic relationships among their staff, unless they preexisted the employment, or requiring staff members to report such relationships to HR.[11] Romantic relationships at the workplace too often lead to subsequent allegations of sexual harassment and other misconduct, particularly after the relationships go awry. Private sector employers have long resorted to romantic relationship agreements and even bans, particularly within the chain of command, to preempt such issues.
Finally, courts should consider revising their technology use policies to make abundantly clear that courtroom equipment, including court-issued laptops, may only be used for business purposes. Viewing and ordering pornography at the workplace as well as using employer-issued devices to circulate inappropriate images or jokes have often provoked claims of hostile environment sexual harassment. Indeed, Judge Kozinski’s former law clerk claims that he asked her to comment on pornographic images, and Judge Conrad Rushing, a California appeals judge, also recently resigned after the state Judicial Council determined that, among other things, he had viewed nude photos of women while in chambers and inappropriately commented on the appearance of female staff members.[12]
While neither foolproof nor exhaustive, these measures are a step in the right direction. After all, no one should be above the law, least of all judges.
[1] Assessing the allegations’ veracity exceeds the scope and purpose of this article as does a determination of whether the purported misconduct warrants impeachment if substantiated.
[2] By comparison, quid pro quo sexual harassment involves a supervisor promising an employment benefit, such as a job promotion, in exchange for sexual favors.
[3] The Code was established by the Judicial Conference and applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges. Some provisions also apply to special masters and commissioners. Id.
[4] This is perhaps because some do not consider sexual harassment to squarely constitute an “ethics” issue. Interestingly, different ethics rules apply to judicial employees like law clerks and to judges and employees in state courts. The Supreme Court of the United States is not subject to the Code even though Chief Justice Roberts heads the Judicial Conference. Lincoln Caplan, Does the Supreme Court Need a Code of Conduct?, The New Yorker (July 27, 2015), https://www.newyorker.com/news/news-desk/does-the-supreme-court-need-a-code-of-conduct.
[5] Notably, this link is practically hidden at the far bottom of the page, and some links to the local rules are dead.
[6] This is not to say that courts, including the Ninth Circuit, may have internal sexual harassment procedures and policies in place that are not publicly available.
[7] While this article refers to court staff, judges and litigants could also be victims of sexual harassment and for similar reasons, might be equally loathe to report it. Furthermore, same-sex sexual harassment, such as a female judge harassing a female law clerk, is also actionable and need not be motivated by sexual desire. Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).
[8] These include filing five copies of assorted documents of “no more than five pages or 1,200 words” and providing “concrete proof” supporting the complaint.
[9] Some courts may have already implemented some or all of these suggestions.
[10] Because unpaid judicial interns and externs are not technically “employees,” courts will need to determine whether these policies and procedures should also apply to them. For more information regarding legal protections to which externs and interns may be entitled, see https://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html.
[11] Ironically, Judge Kozinski has been quoted as saying, although the “’bright line ‘never mix business and sexual relationships’. . . is easy to remember, it is impossible to enforce, as men and women are drawn to each other in the workplace, as elsewhere. Even were it enforceable, do we really want to live in a society where normal flirtations, courtships and matings are routinely banned from the office and the factory?” https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/w96shi.html (citing “Gender Bias,” San Francisco Recorder, May 27, 1992).
[12] See, e.g., Tracey Kaplan, California Appeals Court Justice Retires in Face of Sex Harassment, Bigotry Allegations, The Mercury News (Dec. 6, 2017), http://www.mercurynews.com/2017/12/06/appeals-court-justice-conrad-rushing-resigns-while-facing-sex-harassment-bigotry-allegations/; Debra Cassens Weiss, State Appeals Judge Resigned as He Reportedly Faced Sexual Harassment and Bias Allegations, ABA Journal (Dec. 11, 2017), http://www.abajournal.com/news/article/state_appeals_judge_resigned_as_he_reportedly_faced_sexual_harassment_and_b.