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Who Judges the Judges? Federal Judiciary Adopts New Workplace Conduct Rules

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In light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes:

  1. Sexual harassment or assault.
  2. Creating a hostile work environment for judicial employees.
  3. The broad category of treating judicial employees in a “demonstrably egregious and hostile manner.”
  4. Intentionally discriminating on the basis of race, color, sex, gender, religion, pregnancy, national origin, age or disability. Interestingly, judges are also prohibited from discriminating on the basis of gender identity or sexual orientation – two categories that are the basis of a current split among the courts.
  5. Retaliating against complainants, witnesses or others for participating in the complaint process or for reporting misconduct or disability.
  6. Failing to notify the chief district or circuit judge of reliable information reasonably likely to constitute judicial misconduct or disability.

The amendments also streamline how employees can report misconduct and implement training in identifying judicial misconduct. These requirements will primarily be accomplished through the new Office of Judicial Integrity, which will collect the confidential complaints.

Now what?

No one thinks that the judges didn’t know their legal obligations or that they were allowed to harass employees prior to these amendments. However, it is a sign of the times that the courts decided to explicitly state their commitment to prohibiting harassment, to make it easier to report, and to reiterate non-retaliation protections. It may be interesting to see how judges in the circuits who have ruled specifically against protecting against discrimination based on gender identity and sexual orientation will react to the fact that their own Judicial Code of Conduct recognizes those as protected classes.

Why does this matter to regular folks?

Although the courts knew what the law said, judges will now have a written guideline for how a policy should look. In the future, when a judge needs to assess the sufficiency of a company’s harassment policy and complaint-reporting procedure, that judge may look to these new judicial requirements as a minimum. Companies would be well served to make sure their policies at least hit the high points.

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