On this International Women's Day I feel a sense of pride when I reflect on how far we have come in the struggle for equality for working women in Ontario in the last thirty years. This sense of pride is quickly extinguished when I hear that court-workers in the Ontario Court of Justice are not protected by a harassment policy and are afraid to assert their right to be free against harassment in the workplace even when their employer's in law have sexual harassment polices in place and their collective agreements have anti-retaliation clauses in them. This omission on the part of the Ontario Court of Justice is simply indefensible in 2015.
In 2009 the Ontario Court of Justice passed a policy on the subject matter.
The problem with the policy is that it is restricted to complaints against a judge or justice of the peace where the complainant is a judge or justice of the peace. As the policy below from the Florida State Court shows such polices are a vitally important piece in any meaningful initiative to provide court-staff and the judicial officers they work with the necessary tools to identify and eradicate such problems quickly and efficiently. Such policies go a long way in protecting not only the court-staff but indeed the judicial officers and the integrity of the administration of justice itself by ensuring that everyone in the workplace is cognizant of the standards, norms of the workplace and how to object to inappropriate acts.
Judicial Independence:
To be clear, the need for a policy on this issue is inextricably linked to the fundamental principle of judicial independence - that is - judicial officers must never be directly or indirectly subject to interference by those with the power to appoint and remove them from office. In the absence of a clear policy on this issue the use of the judicial misconduct scheme by state actors or their agents to address such issues invites legitimate questions of impartiality, natural justice and fairness. The maxim that justice must be seen to be done rings loud and clear. We here in Ontario can learn much from our American neighbors on this issue. The State Court of Florida's policy on the subject matter provides a good example of an effective policy.
In 2009 the Ontario Court of Justice passed a policy on the subject matter.
The problem with the policy is that it is restricted to complaints against a judge or justice of the peace where the complainant is a judge or justice of the peace. As the policy below from the Florida State Court shows such polices are a vitally important piece in any meaningful initiative to provide court-staff and the judicial officers they work with the necessary tools to identify and eradicate such problems quickly and efficiently. Such policies go a long way in protecting not only the court-staff but indeed the judicial officers and the integrity of the administration of justice itself by ensuring that everyone in the workplace is cognizant of the standards, norms of the workplace and how to object to inappropriate acts.
Judicial Independence:
To be clear, the need for a policy on this issue is inextricably linked to the fundamental principle of judicial independence - that is - judicial officers must never be directly or indirectly subject to interference by those with the power to appoint and remove them from office. In the absence of a clear policy on this issue the use of the judicial misconduct scheme by state actors or their agents to address such issues invites legitimate questions of impartiality, natural justice and fairness. The maxim that justice must be seen to be done rings loud and clear. We here in Ontario can learn much from our American neighbors on this issue. The State Court of Florida's policy on the subject matter provides a good example of an effective policy.
IN THE CIRCUIT
COURT OF THE 16TH JUDICIAL
CIRCUIT OF THE STATE OF FLORIDA IN AND FOR MONROE COUNTY
ADMINISTRATIVE ORDER 11.013
IN RE:
SEXUAL HARASSMENT POLICY
AND COMPLAINT PROCEDURE AGAINST JUDGES
:
WHEREAS, the Supreme Court of
Florida in Administrative Order
#AOSC04-8 directs circuit
chief judges to adopt
and implement the policy and procedures regarding
sexual harassment against trial court judges in their respective circuits,
It is therefore, ORDERED that:
The following
constitutes the sexual harassment policy and complaint procedure against judges in the 16th Judicial
Circuit.
1. Policy
It is the policy of the 16th Judicial Circuit to make the workplace free of sexual harassment.
Sexual harassment occurs if there are
unwelcome sexual advances; unwelcome
requests for sexual favors;
or unwelcome verbal or physical conduct of a sexual nature from
or involving an employee’s supervisors, peers, subordinates or other persons in contact with an employee
during the course of the conduct of the employee’s business when:
1.
|
Submission
|
of such conduct is
|
either explicitly
|
or
|
implicitly
|
a term or
condition of
|
employment; or
|
2.
Submission to or rejection of such conduct by
an individual is used as the
basis for employment decisions
affecting such individual; or
3.
Such conduct has the purpose or effect of
interfering with an individual’s work performance or creates
an intimidating, hostile or offensive work environment.
It is the policy
of the 16th Judicial Circuit that complaints of sexual harassment will be treated seriously
and acted upon promptly.
The following procedures apply to complaints against
judges made by employees or applicants for employment. Compliance with these
procedures satisfies a chief judge’s disciplinary
responsibilities under Canon 3D(1) of the
Code of Judicial Conduct.
2. Notification
The chief judge may designate any person, including a non- judge, to be responsible for receiving and documenting complaints
of sexual harassment against judges of
this circuit.
Any employee or applicant
for employment with the court who believes that he or she is the subject
of sexual harassment by a county
judge or a circuit judge, or a
senior judge should report
his or her complaint
in writing to the chief
judge or to the chief
judge’s designee. If any person has
difficulty in writing out the complaint,
the chief judge shall designate a person,
who will not be
involved in the adjudication thereof, to
aid the complainant in reducing the complaint to writing.
If the chief
judge is the subject of a complaint, the employee or applicant
should report the complaint to the court administrator who will refer such complaint
to the chief judge of the Eleventh
Judicial Circuit. The chief judge to whom such a complaint is referred will assume all
complaint investigation and resolution
duties as provided for in these
procedures. The chief judge
to whom such a complaint is referred will also be responsible
for maintaining any records pertaining to the complaint.
If an employee or applicant chooses not to
file a formal complaint, but the chief
judge has actual knowledge or receives information that a substantial
likelihood exists that another
judge has engaged in sexual harassment, the chief judge will inquire
into the matter and
take appropriate action.
3.
Time for
Filing Complaints
In order to ensure that the Sixteenth
Judicial Circuit
compliant procedures can be utilized without risk of precluding
the filing of a charge of discrimination with state or federal entities, an employee or applicant should report an incident of sexual
harassment within 90 days of the date of occurrence.
4.
Investigation
A complaint of sexual harassment against a judge
will be investigated promptly and thoroughly. If a complaint
has been made to the chief
judge, he or she may designate another person to make an initial
inquiry into the complaint.
The chief judge or the
chief judge’s designee will interview the complainant within five days of the submission of the complaint
to ascertain relevant facts and circumstances. If the complainant
does not divulge names or details of the incident(s), the chief judge or the chief
judge’s designee will rely
upon information that is available
to the extent possible.
If another person has been designated
to make an initial
inquiry into the complaint,
such designee will report details of the complaint to the chief judge within ten days of the submission of the complaint.
The chief judge may dismiss the complaint as unfounded or insufficient
to constitute sexual harassment. If
the complaint is sufficient to constitute sexual harassment, the
chief judge may appoint
an investigating officer or officers to formally investigate the complaint.
The chief judge or investigating
officer(s) will interview
the complainant, the judge involved, and witnesses, if any, and will
review relevant materials. If any investigating
officers
have been appointed, such persons will submit
a written report to the chief judge within thirty days of the submission of the complaint.
5. Resolution
The chief judge will determine the course of action for resolution of the complaint, and may appoint
another person to resolve the complaint.
The chief judge may attempt to resolve the complaint
informally through mutual conciliation by meeting with the complainant
and judge to discuss a method of resolution, including
alternative dispute resolution. In attempting
to resolve the complaint,
the chief judge may counsel or take other appropriate
direct action with the judge involved.
If the complaint
and investigation raise a substantial question as to judge’s fitness for office, the chief
judge will refer the complaint and
all written documentation pertaining to the complaint to the Judicial Qualifications Commission.
6. Documentation and
Confidentiality
All information pertaining to a complaint of sexual harassment must be
documented and maintained by the chief
judge or the chief judge’s designee.
All records made or received
by the chief judge or chief judge’s designee through use of these complaint
procedures are exempt
from public disclosure under rule 2.501(c)(3)(A), Florida Rules of Judicial Administration. Such records
are exempt for the duration
of an initial inquiry, formal investigation and resolution
of the complaint, and at all times thereafter, unless the records
are forwarded to the Judicial
Qualifications Commission.
If records pertaining to a complaint are forwarded to the Judicial Qualifications Commission, such records
will be confidential under Rule of Judicial
Administration 2.501(c)(3)(A), and rule 23(a), Rules of
the Judicial Qualifications Commission, until any formal charges against the judge are filed by the Investigative Panel of the Commission
with the clerk of the Florida
Supreme Court.
Records within the possession of the
chief judge or the chief judge’s designee pertaining to a complaint that
have been
forwarded to the Judicial Qualifications Commission will only become public upon formal charges being filed with clerk of the
Florida Supreme Court.
7.
Referral
to the Judicial Qualifications Commission
These procedures do not preclude
the referral of a complaint against a judge at any time by any person to the Judicial
Qualifications Commission. If a complaint against
a judge has been referred
to the Judicial Qualifications Commission, no further action by a chief judge is required.
The Commission is responsible
for investigating all reported
instances of judicial misconduct. The Commission
is located at: 1110 Thomasville
Road, Tallahassee, Florida 32303-6224.
The Commission’s Executive Director,
Brooke S. Kennerly, can be contacted at (850) 488-1581.
8. Referral to the Florida
Commission on Human Relations or the United States Equal Employment Opportunity
Commission
These procedures do not preclude
the filing of a charge of employment discrimination with the Florida Commission on Human Relations or the Equal Employment
Opportunity Commission.
The Florida Commission on Human Relations is located at: 2009 Apalachee Parkway, Suite 100, Oakland
Building, Tallahassee, Florida 32301-4857. The telephone
number for the Commission
is: (850) 488-7082.
The United States Equal Employment
Opportunity Commission office with jurisdiction over complaints arising in the Sixteenth Judicial Circuit is located
at:
Miami Office: One Biscayne Tower, 2 South Biscayne Boulevard, Suite 2700, Miami, Florida 33131. The telephone
number for the Miami
office is: (305) 536-4491 or 1-800-669-4000.
DONE AND ORDERED, in Key West,
Monroe County, Florida, this
the 26 day of April, 2004.
Richard G. Payne Chief Judge
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