By Brenda Rodeheffer | General Counsel for Personnel & Operations
The “Me Too” movement caught fire last October, and there is no sign that it is burning out. Sexual harassment as a cause of action was recognized in 1986 in Meritor Savings Bank v. Vinson. Multiple landmark Supreme Court cases through the years have expanded the scope of sexual harassment to include same sex harassment and vicarious liability for employers who fail to take appropriate action.
Employers and their attorneys have focused on legal liability and so have the trainers of sexual harassment prevention. This is no longer adequate.
What was tolerated and overlooked six months ago is now grounds for termination, ostracism, and public censure, regardless of legal liability. In the past, if a complaint of sexual harassment or discrimination was made, investigators would assess the liability of the employer.
If the investigators found that the bad conduct did not rise to the level of sexual harassment as defined by caselaw, there was a finding that sexual harassment did not occur. It should not be a shock then to learn that coercing and offensive behavior continued to occur.
No complaints does not equal a clean house. The great majority of persons who feel harassed do not report the harassment for fear of retaliation. Each of us needs to work to build a good workplace culture where civility is the norm and where harassment or coercion will not occur.
The culture change has to come from the top. Leadership must be at the forefront in creating change. In a county with multiple judges and a court administrator, the court administrator may be responsible for employment policies and their implementation.
However, the judges need to take whatever steps are necessary for employees to know the policies are directly from the judges and important to them.
The Courts have always been at the forefront of eliminating discrimination. Code of Judicial Conduct Rule 2.3 is a model for prohibition of all types of discrimination.
RULE 2.3: Bias, Prejudice, and Harassment
- A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
- A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
- A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
- The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.
But for the courts in their role as employers, reliance on Rule 2.3 is not enough.
This year, the United States Supreme Court Chief Justice John Roberts called on the judiciary to pay attention to this issue, and the Chief Justice of Indiana responded quickly. Chief Justice Loretta Rush asked that I review and strengthen the Supreme Court’s internal policies and practices. Our policy is now a stand-alone one so that it is not overlooked as just a section in the employee handbook. It is formatted to make it easy to read and easy to find answers.
We developed an online portal so that complaints could be easily filed. Language was amended to make it clear that reporters of harassment have rights and that those rights will be respected. This summer all staff of the Indiana Supreme Court will be given in-person training to ensure there is dialogue and full understanding of the policy. Each of our courts should have a sexual harassment policy that is clear, gives a safe and easy way to make complaints, and provides that there will be no retaliation.
A good sexual harassment policy and procedure is only one step to ensure that employees are not harassed and have a good working environment. In 2015, the Equal Employment Opportunity Commission established a “Select Task Force on the Study of Harassment in the Workplace” to examine ways to prevent and remedy harassment.
The Task Force found that workplace harassment remains a persistent problem, and the great majority of employees affected do not complain even internally. A workplace with harassment is one in which productivity is lost, the employer is at risk for incurring legal and political liability, and there are victims who suffer. It also impacts employees’ health, increases turnover, and may earn the employer a negative reputation among jobseekers.
The good news is that leadership and accountability can prevent harassment. The leadership must clearly communicate that a civil workplace is the goal and show it by allocating training resources. Training cannot be limited to preventing legal liability. It must be part of an overall effort to initiate or maintain a civil and respectful workplace. If there is harassment, it has to be addressed swiftly and effectively.
Supervisors and managers must be held accountable above all if there is harassment. Managers not only have to be held accountable for their own harassment, but they have to be held accountable if they act ineffectively regarding others’ harassment.
All employees must be trained on their individual responsibility to promote a civil workplace, and bystanders to incivility must know that they have a responsibility to report or intervene. Employees should be rewarded for reporting and stepping in to ensure a civil and respectful workplace.
Each one of us has a responsibility for our workplace, whether we are a line employee, supervisor, or the top leader. We have not only the guidance of laws on discrimination, but also the Code of Judicial Conduct. It is a model for requiring civility, not just in the courtroom but also in the workplace of the courts.
Personnel & Operations in the Office of Judicial Administration will be providing training to the Supreme Court’s staff and at various conferences.