A year after Kozinski, what’s changed?

It’s been one year since 9th U.S. Circuit Court of Appeals Judge Alex Kozinski retired in the face of allegations of improper sexual conduct and abusive practices toward colleagues and law clerks.

Since then, much conversation has occurred in Congress and in the federal courts about how the federal judiciary can prevent similar issues from occurring in the future. At the request of U.S. Supreme Court Chief Justice John Roberts, the Federal Judiciary Workplace Conduct Working Group was formed in January 2018, and in June, the group issued a list of recommended improvements.

While Sen. Chuck Grassley (R -Iowa), who chairs the Senate Judiciary Committee, criticized the report as “vague” and for its failure to create an inspector general position to oversee the federal courts, Congress has thus far not sought to interfere in the federal judiciary beyond holding hearings on the issue.

So it’s up to the courts to regulate themselves on the issue of workplace behavioral issues. In the 4th U.S. Circuit Court of Appeals, Circuit Executive James Ishida said that “ensuring a safe, civil, and respectful workplace” is a top priority of Chief Circuit Judge Roger Gregory.

While the working group’s recommendations were pointed toward the U.S. Judicial Conference and the Administrative Office of the U.S. Courts, Ishida said his office has “embraced the spirit” of the June report and has taken steps to address workplace conduct.

One of the working group’s primary recommendations was to create opportunities, outside of formal complaints, for employees to address behavior without fear of retribution.

While such an opportunity already exists through the court’s Employee Dispute Resolution program, the court updated its policies in accordance with changes made by the Judicial Conference in September to include interns and externs as employees able to file complaints and to extend the time for initiating an EDR complaint from 30 to 180 days.

Ishida said he has also begun using circuit mediators to help resolve such disputes.

“The mediators have been very successful in working with the parties to reach a mutually satisfactory outcome,” he said.

Ishida said the 4th Circuit is currently conducting a comprehensive survey of past and current employees to get input on workplace behavior. So far, he said, his office has received over 900 responses. The circuit is also working on developing an exit interview for all departing court employees, as another option to get commentary for policy improvement without the fear of retribution.

Employees may also speak to supervisors, human resources representatives, a designee, a chief judge or to Ishida himself as the 4th Circuit’s EDR coordinator, to get advice on how to proceed with a specific issue. Ishida said he is also in the process of hiring a new staff member who will serve as another source of information while handling all judicial conduct complaints and leading all future training programs.

Those who wish to file a formal complaint must do so by filing a report of wrongful conduct. In instances of judicial misconduct, an additional complaint must also be filed under the Judicial Conduct and Disability Act.

Ishida said the 4th Circuit has expanded training for judges and other employees, creating and hosting workplace behavior and civility training opportunities. He said his office is also planning a workplace conduct training conference for judges, which will take place in June, and working hard to eliminate gender inequality in pay and title.

“I want to encourage a workplace that is gender-intelligent, prevents injustice and objectification, promotes diversity and inclusiveness, and removes unconscious bias that holds back women and others in the workplace,” Ishida said.

Meanwhile, the Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability reported a proposal in September, which, if passed, would make it misconduct for a judge to fail to take action to address instances of reported misconduct or retaliation. The proposed rule changes would also allow witnesses to misconduct to report it, remove ambiguity about confidentiality barriers to filing complaints, and explicitly define sexual harassment as a form of misconduct.

The Judicial Conference committees have received comments on the matter and are still considering whether or not to accept the proposed changes.

Ishida said the 4th Circuit is doing what it can to take care of all of its employees.

“There is no one more dedicated or committed to ensuring a safe, civil, and respectful workplace than Chief Circuit Judge Roger Gregory,” Ishida said. “We will therefore do everything we can to protect all court employees from inappropriate conduct in the workplace.”

Follow Matt Chaney on Twitter @SCLWChaney