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Federal courts say they’ll now track sexual harassment data

The administrator of the nation’s federal courts office says it will begin tracking and releasing data on sexual harassment complaints against judges as the judiciary responds to criticism that misconduct accusations are not taken seriously.

In an 18-page letter to Senate Judiciary Committee leaders Charles Grassley and Dianne Feinstein, James Duff, director the Administrative Office of the US Courts, wrote that no complaints of sexual harassment were filed against federal judges in 2016, a pattern that he said has held true for most years.

But after misconduct claims against US Appeals Court Judge Alex Kozinski became public last December, and a CNN report exposed that judges are rarely disciplined and information is not made public, Duff said the court will begin tallying and releasing information.

“We will create a separate statistical category for sexual harassment complaints … and report that data,” Duff wrote.

The CNN investigation found that out of nearly 5,000 judicial misconduct orders over the past 11 years, very few cases are deeply investigated and very rarely are judges disciplined. The US courts’ system of self-policing is closely controlled and cloaked in secrecy. It is difficult to assess whether people with true grievances are being answered, and some investigations are ended if a judge retires, often with full pension.

Duff also acknowledged that people sometimes do not bring misconduct complaints through direct channels.

“The sad fact is that, just as in other public and private workplaces, sexual harassment issues are often not reported,” he wrote.

Duff said that in addition to releasing data on sexual misconduct claims for the first time, officials would be considering ways to remove “barriers” in the complaint process.

Former law clerks and other courthouse employees have complained about the judiciary’s handling of misconduct in the wake of a Washington Post story in December that detailed alleged misbehavior by Kozinski, a judge on the California-based US Appeals Court for the 9th Circuit since 1985. The story featured an account of a former judicial clerk who said Kozinski asked her to look at pornographic images on his office computer.

Duff declined several requests for comment as the CNN investigation on the misconduct process was underway. His February 16 letter came in response to a February 9 query about judicial misconduct, citing the CNN report, from Judiciary Chairman Grassley, a Republican from Iowa, and ranking Democrat Feinstein of California.

The senators included specific questions arising from media reports and the cases of six judges, many of whom were subject to sex-related allegations, including Kozinski. Most of those judges, including Kozinski, retired with a full pension. All disciplinary action stops once a judge steps down from the bench.

Kozinski, who had been subject to misconduct allegations in 2009, retired shortly after the new matter became public, saying that he “may not have been mindful enough of the special challenges and pressures that women face in the workplace.”

The senators’ questions focused on 2016, the most recent year for publicly available statistics on misconduct complaints. Of more than 1,300 complaints filed that year, Duff told the senators, not one was lodged by a law clerk or judiciary employee.

Duff noted that there was one claim of sexual harassment filed through an employee dispute resolution program. He said in that 2016 matter “the employee and the employing office were able to achieve an equitable resolution” through counseling.

After the early December media reports about Kozinski, Chief Justice John Roberts called for a special working group to examine procedures for employee complaints. Responding to the Grassley and Feinstein concerns about law clerk experiences, Duff said that seven-member group will hear from former and current law clerks at its next meeting, in about two weeks.

He said the panel, which he is chairing, has already met once since it was established. It is made up of three sitting judges and four court administrative officials. He said the working group would be “removing barriers to filing complaints and educating employees about the options they have available.”

Duff noted that clerks’ confidentiality rules have already been updated to make clear that the usual imperatives of secrecy relating to cases do not prevent clerks from reporting workplace misconduct or filing complaints against judges.