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Federal Courts Make Changes in Response to #MeToo Movement

Judicial branch is creating more informal ways to file complaints

James Duff, left, and John Lungstrum testify before the House Financial Services Appropriations Subcommittee on Wednesday. (Courtesy Administrative Office of the U.S. Courts)
James Duff, left, and John Lungstrum testify before the House Financial Services Appropriations Subcommittee on Wednesday. (Courtesy Administrative Office of the U.S. Courts)

A federal court official said Wednesday that a main barrier to reporting sexual harassment and other workplace misconduct in the judicial branch is the “formality of our complaint process,” as well as employees misunderstanding confidentiality provisions in ethics rules and being unaware of protections against retaliation.

James Duff, director of the Administrative Office of the U.S. Courts, told a House Appropriations subcommittee that the courts will create more informal ways to file complaints. The judiciary will also take extra steps to educate employees and law clerks about protections against retaliation for reporting misconduct, Duff said. The courts have already revised their confidentiality provisions, he added.

Duff created an eight-person working group in January, at the order of Chief Justice John G. Roberts Jr., to review how the courts handle such complaints. It came as the #MeToo movement gained momentum across the country in the movie and television industries, politics, media and other workplaces.

The Washington Post reported in December that six former clerks or staffers alleged inappropriate sexual conduct or comments by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. The well-known and powerful judge abruptly retired about 10 days later as the appeals court launched an inquiry into judicial misconduct.

Rep. Matt Cartwright, D-Pa., asked Duff what has changed in the way workplace harassment claims can be filed in the federal courts, because there’s been “an awful lot of talk about that lately.”

“The formal complaint process works to the extent it’s utilized,” Duff said. “But many employees just want guidance, counseling and, we think, intervention earlier on in the process so that you don’t need to get to the formal process.”

Duff said the working group listened to concerns of employees and relied on an Equal Employment Opportunity Commission study that found 75 percent of people who experience harassment never report it. The courts wanted to figure out how to ensure employees can “feel free to complain without retaliation,” he said.

Cartwright asked whether the working group is expanding the protections against retaliation for employees who file complaints, considering the “close-knit confines of judicial chambers,” with a new lawyer out of law school who regards a federal judge among the “pantheon of demigods.”

Duff replied that those protections are in a provision within the employment dispute procedures but many are unaware of it. So the courts will “elevate and raise the level of training” with an extra step in the orientation process for new employees and law clerks, Duff said.

The director also said some employees misinterpreted ethics guidelines about confidentiality —“implemented in the aftermath of social media” to preserve confidences within the branch — as prohibiting disclosure of workplace misconduct.

“That was never intended,” he said. “And so we have made the revisions already to the confidentiality provisions in our ethics guidelines for our employees and law clerks.”

The House Financial Appropriations Subcommittee hearing on Wednesday focused mainly on the judicial branch’s request of $7.22 billion in discretionary funding for fiscal 2019.

U.S. District Judge John Lungstrum, a senior judge in Kansas and chairman of the Judicial Conference of the United States, said the request is an increase of $223 million, or 3.2 percent.

Most of the increased funding would maintain current services, but $55 million would be for additional programs such as new courthouse projects, case tracking systems for probation, more federal public defenders and four additional magistrate judges, Lungstrum said.

Watch: What’s the Status of the Anti-Harassment Bill on Capitol Hill?

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