In Senate Testimony, Former EEOC Chair Says Ombuds Would Help Federal Courts Sexual Misconduct Problem

The U.S. federal court is having its own #MeToo moment and the Senate is investigating. On Wednesday, the Judiciary Committee held a hearing to examine the federal court systems response to sexual harassment claims and broader misconduct issues. In her testimony, Jenny R. Yang, the immediate past Chair of the Equal Employment Opportunity Commission, said that formal systems to prevent misconduct should be supplemented with Ombuds office. She specifically cited IOA standards and the recent ACUS report on Ombuds. Clearly, Yang was well informed about Ombuds.

Here is the full text of the relevant portion of her statement to the Judiciary Committee:

INFORMAL PROCEDURES AND PROPOSAL FOR A JUDICIAL OMBUDS PROGRAM 

The Working Group recognized the need to develop multiple mechanisms to provide a range of methods and points of contact to support employees who encounter misconduct. As an alternative to formal complaint mechanisms, the Working Group recommends the establishment of offices at both the national and circuit level to provide employees with an informal avenue to raise concerns at an early stage and obtain advice and assistance with concerns of judicial misconduct. 

In most public, private sector and nonprofit workplaces, employees can engage human resources officials informally to request that their employer investigate their concerns, without having to participate in any kind of formal dispute resolution procedure. While those systems can have many limitations, they do provide another option – especially when paired with ombuds programs or other safeguards that provide multiple avenues to seek assistance and ensure safe and respectful workplaces. 

An informal mechanism to raise concerns requires clear structures, resources and support. Offices at multiple geographic points can play a critical role in encouraging people to come forward to understand their options and resolve disputes early. To be successful these offices must engender trust within the organization and offer a confidential process to educate employees about their options, such as confronting a harasser, making an informal report or formal complaint. This includes training, coaching and capacity building with existing human resources functions and offices so that they provide accessible and effective resources to employees who may not be ready or willing to engage any of the dispute resolution or formal complaint procedures – and clear, accurate guidance on how to file a complaint or access the EDR program if that is what they wish to do. 

In addition to robust informal complaint options through the human resources function, I recommend establishing an ombuds office as a separate mechanism for employees to raise concerns. Many federal agencies and some private companies and higher education institutions have successfully used an ombuds office to provide a safe and respectful case manager approach, offering credible options in a manner that builds trust within the organization. The ombuds office helps to brainstorm and identify potential solutions, yet the process does not constitute a formal complaint that puts the employer on notice or trigger an investigation that will likely notify the harasser of the nature of the allegations. This type of confidential process enables the employee to be the driver of the process in determining the approach she or he is most comfortable pursuing. 

This model could be a useful approach for the Judiciary to provide a mechanism to uncover significant issues and patterns that may not be well known or have been ignored. These offices can aid in resolving issues early before a formal complaint is filed. [cite to ACUS report] Federal ombudspersons share three core standards of practice—independence, confidentiality, and impartiality. 14 They also share common characteristics: (1) they do not make decisions binding on the employer or provide formal rights-based processes for redress; (2) they have a commitment to fairness; and (3) they provide credible processes for receiving, reviewing, and assisting in the resolution of issues. 15 These criteria also align with the international standards of practice for ombuds programs. [cite to IOA Standards of Practice] 

An ombuds office should report directly to the Chief Judge of the court or the highest level of senior leadership and bypass existing human resource structures to preserve its independence and build support at the highest level of the organization. Leadership must clearly message in communications their respect for the independence, confidentiality, and impartiality of the ombuds office. Those serving in an ombuds role should not have duties within the agency that might create a conflict with their responsibilities as a neutral, and the ombuds function should not be housed in an office that has a prosecutorial or investigatory role, as that would be at odds with the ombuds function. Most importantly, it must be clear to employees through multiple forms of notice that contact with an ombuds office does not serve as notice to the agency, and alternative formal complaint mechanisms exist that will trigger an investigation and appropriate action by the organization. 

A trusted confidential process can encourage more people to come forward to share workplace concerns. It does not mean forgoing transparency and an informal process need not become a mechanism to hide problems within an organization. To ensure accountability and transparency, the ombuds office should provide annual or other regular reporting of the nature and location of complaints without revealing the identity of the parties involved. The ombuds office may also regularly brief the Chief Judge or senior official on patterns or significant issues uncovered to prompt preventive action while still maintaining individual confidentiality. 

Ultimately, a credible process is one that the workforce believes has methodological integrity as evidenced by documentation of its purpose and process. The process must be repeatable with consistency and not just personality driven, and should offer transparency so the workforce should know the aggregate results achieved. [Some citations omitted.]

(Senate Judiciary Hearing; Yang Testimony.)

Related posts: IOA Takes a Stand on Title IX Issues; IOA Releases Memo Providing Legal Grounds for Ombuds Confidentiality in Title IX Matters; ACUS Finalizes Recommendation on Use of Ombuds in Federal Agencies; IOA Surveys Higher Education Ombuds Confidentiality for Clery Act & Title IX Matters; IOA Video Promotes Ombuds for Surfacing & Addressing Sexual Misconduct.