Ninth Circuit’s ad hoc workplace environment committee reports on actions to foster a ‘respectful workplace’
Wednesday, June 19, 2019

Ninth Circuit’s ad hoc workplace environment committee reports on actions to foster a ‘respectful workplace’

By Lisa Milam, J.D.

The Ninth Circuit Ad Hoc Committee on Workplace Environment issued a report of its work as well as recommendations for improving the workplace culture at the court.

The Ninth Circuit Court of Appeals’ Ad Hoc Committee on Workplace Environment issued a report on June 18, 2019, that provides on overview of the committee’s work, including its outreach to approximately 6,000 current and former employees and law clerks "to inform its efforts on preventing and resolving workplace issues such as harassment and bullying."

The committee’s recommendations and the Ninth Circuit’s implemented changes highlighted in the report include:

  • revising the Ninth Circuit Employment Dispute Resolution (EDR) policy;
  • establishing a director of workplace relations, who will assist in guiding employees through the EDR process, serve as a resource to all employees on EDR-related matters. and oversee general workplace environment issues;
  • revising and simplifying the circuit’s confidentiality policy, which clarifies that misconduct issues are not protected by the confidentiality policy;
  • providing an expanded law clerk orientation and other resources for law clerks, including the formation of a law clerk resources group;
  • conducting an employee climate survey and law clerk exit questionnaire as ongoing mechanisms to monitor the workplace environment; and
  • expanding training and education on policies and practices for all employees, including judges.

Misconduct allegations trigger initiatives. The Ad Hoc Committee on Workplace Environment was created in December 2017 by Ninth Circuit Chief Judge Sidney R. Thomas to identify challenges and recommend initiatives to foster a healthier workplace environment at the court on the heels of misconduct accusations against then circuit judge Alex Kozinski, the source of more than a dozen allegations of sexual misconduct by former law clerks and externs. Kozinski resigned after the complaints came to light.

The committee is chaired by Ninth Circuit Judge M. Margaret McKeown, who formerly chaired the Judicial Conference of the U.S. Committee on Code of Conduct and served on various committees and panels related to workplace and gender discrimination. Committee members include Chief District Judge Virginia A. Phillips of the Central District of California; Senior District Judge Charles R. Breyer of the Northern District of California; Magistrate Judge Candy W. Dale of the District of Idaho; and San Diego attorney Abby Silverman, one of the nation’s top employment and alternative dispute resolution practitioners.

The Ninth Circuit is the first federal circuit in the nation to establish an Office of Workplace Relations, which officially opened on February 12, 2019. The California-based circuit court also covers Arizona, Alaska, Guam, Hawaii, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington.

"The Ninth Circuit takes seriously its commitment to a respectful workplace," Chief Judge Thomas said. "Over the past eighteen months, we have worked hard to put in place revised policies and procedures to make that commitment a reality and we will continue our innovations to foster a culture of respect."

"Judicial branch is not immune." In his 2017 Year-End Report on the Federal Judiciary, U.S. Supreme Court Chief Justice John Roberts alluded to the allegations against Kozinski, noting that "events in the past few weeks have made clear that the judicial branch is not immune." Roberts announced the federal judiciary would undertake "a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee." Roberts called for the formation of a working group to examine practices at the federal judiciary, which issued a report in June 2018 summarizing its findings.

Other circuits. Seventh Circuit Chief Judge Diane Wood also appointed a committee to examine the process for raising claims of harassment in connection with employment in the courts of the Seventh Circuit, including the procedures for filing a complaint against a judge for sexual or other harassment, and other misconduct. The District of Columbia Circuit also implemented reforms in response to the controversy (as well as the broader #metoo wave then cresting). Chief Judge Merrick B. Garland and D.C. District Chief Judge Beryl A. Howell jointly announced the implementation of recommended policies and procedures to ensure "a workplace free of sexual harassment and other misconduct, including retaliation for reporting harassment and misconduct."

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