Workplace Conduct in the Federal Judiciary the Office

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Workplace Conduct in the Federal Judiciary & the Office of Judicial Integrity Jill Langley,

Workplace Conduct in the Federal Judiciary & the Office of Judicial Integrity Jill Langley, Judicial Integrity Officer 2019 NCBC/TNWB HR Forum Atlanta, Georgia April 24, 2019

Topics for Discussion What were the Working Group Recommendations? What is the Office of

Topics for Discussion What were the Working Group Recommendations? What is the Office of Judicial Integrity? What are the changes to EDR? How can we prevent workplace harassment and abuse?

The Judiciary is Committed to: �A workplace of respect, civility, tolerance and dignity �Free

The Judiciary is Committed to: �A workplace of respect, civility, tolerance and dignity �Free of discrimination, harassment, and abusive conduct

Federal Judicial Workplace Conduct Working Group

Federal Judicial Workplace Conduct Working Group

Working Group Findings �Workplace harassment and inappropriate conduct is underreported; we need to minimize

Working Group Findings �Workplace harassment and inappropriate conduct is underreported; we need to minimize barriers to reporting �Incivility, verbal abuse more common than harassment �Workplace culture and leadership are critical: �when inappropriate behavior is not tolerated, it diminishes �When it is ignored or downplayed, it persists �Leaders and everyone must commit to protecting employees

Judiciary Workplace Conduct Working Group �Judiciary wants to be an exemplary employer; we take

Judiciary Workplace Conduct Working Group �Judiciary wants to be an exemplary employer; we take this very seriously �Promote culture of civility & respect �Raise awareness of harassment and wrongful conduct issues; regular education/training �Recognize, report and resolve wrongful conduct as early as possible

Working Group Recommendations Clear Policies Clear Avenues to Report Revise Codes of Conduct and

Working Group Recommendations Clear Policies Clear Avenues to Report Revise Codes of Conduct and EDR Plans to make clear: � sexual and discriminatory harassment, discrimination, and retaliation for reporting harassment and discrimination is prohibited � All judiciary employees have an obligation to promote civility, avoid harassment, and take action when we observe misconduct by others � Reduce barriers to reporting by providing flexible and alternative avenues for seeking advice, counseling, and assistance for all employees. Simplify the EDR Process � Plain English � Training for EDR Coordinators � Flowcharts to explain the EDR Options for Resolution � End filing deadline to 180 days � Create a national office for all judiciary employees to report workplace harassment

Changed the Code of Conduct �Revisions to Codes of Conduct for Judicial Employees �Be

Changed the Code of Conduct �Revisions to Codes of Conduct for Judicial Employees �Be patient, dignified, respectful, and courteous to co-workers �Don’t engage in sexual or other forms of harassment �Don’t retaliate against those who report allegations �Supervisors should require employees to comply with standards of conduct �Take “appropriate action” upon learning of reliable evidence of wrongful conduct

Early reporting Title VII Standards Broader Commitment to Workplace Civility compare � To be

Early reporting Title VII Standards Broader Commitment to Workplace Civility compare � To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to you and to reasonable people. � Did the conduct make YOU uncomfortable? SAY SO! � Workplace must be “permeated with discriminatory intimidation, ridicule and insult. ” � Employees who observe or experience wrongful conduct are encouraged to seek advice or assistance from: � Isolated incidents and “run-of-themill boorish, juvenile, or annoying behavior” are not illegal � Conduct that offends one person might not offend another: the test is not whether someone “should” or “should not” have been offended � � Supervisor EDR Coordinators A Circuit Director of Workplace Relations Jill Langley, Judicial Integrity Officer

Added New Ways to Report �Many circuits are creating a Director of Workplace Relations

Added New Ways to Report �Many circuits are creating a Director of Workplace Relations or Workplace Conduct Committees to whom employees within the circuit can confidentially report wrongful conduct �Judicial Integrity Officer at the AO serves as national resource to all judiciary employees for advice, guidance, referral and training

Judicial Integrity Officer �Resource for Judiciary employees nationwide �Confidential informal advice, guidance, and referral

Judicial Integrity Officer �Resource for Judiciary employees nationwide �Confidential informal advice, guidance, and referral �Neutral and independent; outside of courts’ chain of command

JIO on JNet 12

JIO on JNet 12

Office of Judicial Integrity �Confidential Advice & Guidance �Independent and outside court chain of

Office of Judicial Integrity �Confidential Advice & Guidance �Independent and outside court chain of command �Neutral: Guidance to employees, UEs, HR, EDR Coordinators, Judges �Communication bridge �Can request help with an investigation; how to do a thorough, impartial, fair investigation �Not changing existing processes; still file EDR with local EDR Coordinator 13

Office of Judicial Integrity �Confidential Advice & Guidance �What is the process if I

Office of Judicial Integrity �Confidential Advice & Guidance �What is the process if I report? �What are my available options? �Guidance to UEs, HR, EDR Coordinators as well; can request help with investigations �What is the issue and what is the desired resolution? �Can I resolve this informally? �Who is best to assist me with a resolution? �What complaints options are available to me? *Formal complaints are still filed with local courts 14

Proposed Changes to the Model EDR Plan

Proposed Changes to the Model EDR Plan

Clearly defines wrongful conduct �Discrimination based on a protected class �Harassment based on a

Clearly defines wrongful conduct �Discrimination based on a protected class �Harassment based on a protected class � Sexual harassment � Racial harassment � Age, religion, sexual orientation, disability �Abusive Conduct: harassment not based on a protected class �Retaliation for reporting/opposing wrongful conduct 16

What is Harassment? (Title VII - Hostile Work Environment) �Harassment is a form of

What is Harassment? (Title VII - Hostile Work Environment) �Harassment is a form of discrimination - based on employee’s protected class: race, color, sex, gender identity, pregnancy, sexual orientation, religion, national origin, age or disability

Harassment (Title VII: Hostile Work Environment) �Hostile, intimidating, offensive discriminationrelated conduct that is. .

Harassment (Title VII: Hostile Work Environment) �Hostile, intimidating, offensive discriminationrelated conduct that is. . . �. . . sufficiently severe or pervasive to alter the conditions of employment Impacted a tangible employment benefit, or � Created an offensive, hostile working environment �

Sexual Harassment �Any unwelcome physical, verbal, or non-verbal conduct based on, or motivated by,

Sexual Harassment �Any unwelcome physical, verbal, or non-verbal conduct based on, or motivated by, sex or gender that interferes with employee’s ability to work � Harasser can be a supervisor, co-worker, or non-employee working in the office � Can be the same sex � Subject of harassment can be man or woman

Examples of Sexual Harassment �Broad Range of Inappropriate Behavior �Supervisor links an employment benefit

Examples of Sexual Harassment �Broad Range of Inappropriate Behavior �Supervisor links an employment benefit (raise/promotion) on submission to/tolerance of unwelcome sexual conduct �Sexual jokes or stories; lewd remarks; slurs; catcalls, teasing �Showing or sharing pornography or lewd jokes, posting sexual pictures �Unwelcome or unnecessary touching, hugging, brushing, kissing, neck massages �Remarks of sexual nature about person’s looks or clothes �Unwelcome pressure for dates

Examples of Discriminatory Harassment �Ethnic jokes or stories; racial slurs; rude gestures, name- calling

Examples of Discriminatory Harassment �Ethnic jokes or stories; racial slurs; rude gestures, name- calling �Ridicule or teasing based on foreign accents, cultural traits or stereotypes �Offensive objects, pictures or cartoons �Age-related comments or jokes �Mocking someone’s disability

Encourages early reporting Title VII Standards Broader Commitment to Workplace Civility compare � To

Encourages early reporting Title VII Standards Broader Commitment to Workplace Civility compare � To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to you and to reasonable people. � Did the conduct make YOU uncomfortable? SAY SO! � Workplace must be “permeated with discriminatory intimidation, ridicule and insult. ” � Employees who observe or experience wrongful conduct are encouraged to seek advice or assistance from: � Isolated incidents and “run-of-themill boorish, juvenile, or annoying behavior” are not illegal � Conduct that offends one person might not offend another: the test is not whether someone “should” or “should not” have been offended � � Supervisor EDR Coordinators A Circuit Director of Workplace Relations Jill Langley, Judicial Integrity Officer

Abusive conduct �Code of Conduct: patient, dignified, respectful and courteous to all other employees

Abusive conduct �Code of Conduct: patient, dignified, respectful and courteous to all other employees �A pattern of demonstrably egregious hostile, intimidating or demeaning conduct not based on a protected class where the conduct : �Unreasonably interferes with an employee’s work �Creates an abusive, oppressive, or hostile work environment �Examples: �Belittling, humiliating or insulting behavior or remarks �Aggressive yelling, shouting, screaming �Repeated insults, teasing, or making fun of someone

Easiest “test” �Would I say this or act this way if my spouse/partner/child were

Easiest “test” �Would I say this or act this way if my spouse/partner/child were standing next to me? �Would I want my remark or conduct to be reported in the newspaper or on social media? �Would I want someone in my family to be treated this way? �IF SOMEONE COMPLAINS ABOUT YOUR BEHAVIOR, STOP

Provides Flexible Options for Resolution Current EDR Plan New: Options for Resolution �Must file

Provides Flexible Options for Resolution Current EDR Plan New: Options for Resolution �Must file an EDR claim within 30 days �Mandatory 30 -day counseling period � 180 days to file an EDR Complaint �Can seek confidential informal advice: no timeline �Can request assistance: flexible, no limits on what assistance and no timeline �Can file a complaint without any pre-requisites �Mandatory 30 -day mediation period �Can only file a complaint after counseling and mediation

Added Visual Information

Added Visual Information

Easy to read; Added protections User-friendly � Moves the legal definitions to the Guide

Easy to read; Added protections User-friendly � Moves the legal definitions to the Guide to Judicial Policy Added Protections � Prohibits sexual orientation and gender identity discrimination and harassment � Clear conflict-of-interest rules; UEs and judges cannot be EDR Coordinators � EDR Coordinators must be trained and certified � Annual EDR and Conduct training � Prominently posted online and in workplace

EDR Complaint Process is much the same � File with an EDR Coordinator within

EDR Complaint Process is much the same � File with an EDR Coordinator within 180 days of adverse action � Presiding Judicial Officer (Chief Judge designates judge) determines what investigation is needed & oversees the process � Allegations involving a judge are immediately transferred to Judicial Council � Hearing held within 60 days if there are factual disputes � Right to appeal to Judicial Council

Claims Against Judges �An employee can file a judicial misconduct complaint instead of, or

Claims Against Judges �An employee can file a judicial misconduct complaint instead of, or in addition to, an EDR claim �EDR claims against a judge are handled by the Circuit Judicial Council �Minimize conflicts of interest �Conduct might be actionable under the Code of Conduct �There is no deadline to file and no standing requirement under JC&D, but it isn’t a personal remedy: corrective action is taken against the judge

Questions about changes �CUEs should be EDR Coordinators �Abusive conduct is too ambiguous, vague

Questions about changes �CUEs should be EDR Coordinators �Abusive conduct is too ambiguous, vague – it will be used by poor performing employees to “weaponize” EDR �What is the defense to abusive conduct? �Making everyone a tattle-tale – “rat” on each other �Snowflake millennials – trigger warnings �Is the offended person ever “wrong” – can everyone just be offended by anything?

Preventing Workplace Harassment & Wrongful Conduct

Preventing Workplace Harassment & Wrongful Conduct

We all Share Responsibility to Report Wrongful Conduct �A safe workplace depends on employees

We all Share Responsibility to Report Wrongful Conduct �A safe workplace depends on employees reporting misconduct so the court can address it �If you experience wrongful conduct, say so & report it �If you observe wrongful conduct, intervene & report it �If you learn reliable information about wrongful conduct, report it

Resolving an Issue Yourself Clearly tell the Offender the Behavior is Unwelcome Describe the

Resolving an Issue Yourself Clearly tell the Offender the Behavior is Unwelcome Describe the Behavior: When you (hugged me) Say how it makes you feel: I felt (awkward, upset, embarrassed) Say what you want: In the future (I don’t want to be hugged)

Bystander Intervention �Anyone who experiences or observes inappropriate conduct can report and can help

Bystander Intervention �Anyone who experiences or observes inappropriate conduct can report and can help �Bystander Intervention �Recognize/Notice the unwelcome behavior �Act to Intervene/ Respond in a helpful way � Are you OK? Did that bother you? � I didn’t think that was funny � Go with target to report it, or report it yourself

Multiple Avenues to Report EDR Coordinators Human Resources Unit Executive or Supervisor Judicial Integrity

Multiple Avenues to Report EDR Coordinators Human Resources Unit Executive or Supervisor Judicial Integrity Officer - Jill Langley Any Judicial Officer

Confidentiality �Employees may be reluctant to report or file a complaint without assurance of

Confidentiality �Employees may be reluctant to report or file a complaint without assurance of confidentiality �Presumption of confidentiality �Tension→ � UEs and supervisors –the court-must take corrective action to stop harassment � Must take “appropriate action” if learn reliable evidence of Code violation �If information must be shared: �Information only shared only with those who “need-toknow” in order to investigate and address �only the information that needs to be shared with be shared

HR & Confidentiality �What confidentiality can you promise? �Are you able to provide neutral

HR & Confidentiality �What confidentiality can you promise? �Are you able to provide neutral guidance? What would you do if the UE is discriminating or harassing?

If wrongful conduct is reported to you: �Treat all complaints seriously �Put the employee

If wrongful conduct is reported to you: �Treat all complaints seriously �Put the employee at ease: confidentiality; trust; no retaliation �HR: Might need to refer to an EDR Coordinator �If you’re asked to investigate: �Get all the information: who, when, where, how long has it been going on – Take notes �Gather evidence: witnesses, emails, texts, documents �Don’t make judgments until you have all the facts

Retaliation Prohibited �Retaliation against an employee who: �reports wrongful conduct �opposes discrimination or harassment,

Retaliation Prohibited �Retaliation against an employee who: �reports wrongful conduct �opposes discrimination or harassment, �files an EDR/Judicial misconduct claim or participates as a witness in either type of complaint �Is strictly prohibited

Discussion �Courtroom deputy reports to you that she is very unhappy. Her Judge, Judge

Discussion �Courtroom deputy reports to you that she is very unhappy. Her Judge, Judge X, who has a reputation in the clerk’s office for making last minute demands, and yelling at everyone, even litigants, again yelled at the CRD in front of jurors, for a mistake that was not her responsibility. He asked her if she was “a complete idiot”. Two prior CRDs quit working for Judge X �She asks for complete confidentiality – she just wants to be transferred to another judge/position. �Can you honor that request? �Can you transfer her?

Discussion �Judicial Assistant reports to you that she is very unhappy. Her Judge, Judge

Discussion �Judicial Assistant reports to you that she is very unhappy. Her Judge, Judge X, constantly praises her outfits, tells her how great she looks, that she seems really fit and looks great for her age. Judge X also demands that she take him to and from the airport, which is both inconvenient and means they are alone a lot, which makes her uncomfortable. He has back pain, and now he has started asked her to tie his shoes for him. � She asks for complete confidentiality – she just wants to be transferred to another judge/position. � Can you honor that request? � Can you transfer her?