A recent GAO report found that federal circuit courts' training materials on combating workplace misconduct varied in their application of recognized EEOC practices. RiverNorthPhotography/GETTY IMAGES
The federal judiciary has improved its policies against workplace misconduct, but not at all levels
The GAO found that while the judiciary has taken steps to address workplace misconduct, there are gaps at the circuit level, as well as in measuring effectiveness and data reporting.
The Government Accountability Office cited improvements made by the federal judiciary in combatting workplace misconduct Tuesday, but noted in a new report that those efforts may not have fully trickled down to the circuit levels.
The report examined how the judiciary has worked to better address misconduct, including updating its policies in 2020 to handle potential violations, which may occur through issues like discrimination, harassment, abusive conduct, retaliation against an employee or other violations.
The judiciary also modernized its Model Employment Dispute Resolution plan in 2019 — which covers processes and protections for addressing wrongful conduct and applies to all judges, applicants, current and former employees — with each court developing its own EDR plan based on the Model EDR template. The judiciary also updated its central database in 2020 to collect EDR data from across the justice system annually.
GAO found that the judiciary’s efforts generally aligned at the national level with the practices advocated by the Equal Employment Opportunity Commission, but there were gaps in certain policies.
The report noted that while the judiciary did identify harassment risk factors, it did not “explicitly assess these risks or identify specific steps to minimize each risk identified.” A 2018 study by the Federal Judiciary Workplace Conduct Working Group identified four risk factors unique to the judiciary, including power disparities between judges and employees, lifetime tenures for judges, only a formal discipline process for judges and law clerks and chamber employees’ misinterpretation of the confidentiality clause.
While the judiciary worked to clarify the confidentiality clause for law clerks and chamber employees, it has not taken additional steps to address the other three risk factors.
But at the circuit level, the GAO found that mostly did not align with EEOC practices and whatever alignment did occur, it varied from circuit to circuit.
“None of the training materials we reviewed aligned with two of the selected EEOC practices for regular and effective training,” the report said. “In one EEOC practice, it states that effective training should explain the consequences of engaging in conduct that is unacceptable in the workplace. None of the training materials for judiciary staff that we reviewed included an explanation of the range of possible consequences for engaging in prohibited conduct.”
A second EEOC practice called for training to detail what information may be requested in an investigation, including the identity of the alleged harasser, victims, witnesses, dates and locations of the alleged harassment, but the report said that none of the training materials the GAO examined included the information.
The report also found that because circuits are allowed to design their own EDR plans, they may decide what training material is relevant to those plans, explaining the varied applications of EEOC practices.
“By working to more fully align workplace conduct training materials and activities used by the circuits with selected EEOC recommended practices, the judiciary will be able to more consistently and comprehensively educate judges, managers, and staff on how to prevent and address workplace misconduct,” GAO said.
The report also found that EDR claims filed by judiciary employees swelled to 336 claims in fiscal 2022, more than triple the fiscal 2021 mark. Judiciary officials didn’t pinpoint a cause for the rise, but “theorized that the increase could be indicative of employees’ knowledge of their options due in part to workplace conduct training or, similarly, improved trust and familiarity with the reporting options.” They also pointed to increased in-person working as compared to the pandemic effects of fiscal 2020 and 2021.
GAO offered eight recommendations, including better aligning the Model EDR plan to EEOC practices, updating the circuits’ workplace conduct training materials to align to the EEOC, better collecting EDR data and measuring the effectiveness of workplace policies and establishing performance metrics.
Judiciary officials neither agreed nor disagreed with the recommendations, but outlined ongoing efforts to address the issues raised by the report.