New court sex harassment policies will be varied, but some unions say they want consistency

When the Judicial Council debated and passed a rule of court on workplace harassment, a justice helping to lead the effort testified union relationships demand the state courts be granted flexibility in determining their own version of the final policies.

However, some people working with those unions found this assertion confusing.

"I'm unaware of what he's speaking of," said Ted Somera, executive director of United Public Employees, which represents about 600 court employees in Sacramento, Sutter and Yuba counties. "That's one thing we've asked for, something that is more consistent across the board for all policies."

Somera noted he will have a chance to get more answers because any new court personnel policy will require the courts meet and confer with the relevant union representatives. His members operate under a harassment and discrimination policy agreed to with the relevant courts in 2001.

Several court employees unions across the state make their collective bargaining contracts freely available on their websites as a service to members. Many of these contracts feature only the most basic language on sexual harassment, stating, for instance, a prohibition on harassment and stipulating records on sexual harassment allegations should not be destroyed. The new Rule 10.351, approved last Friday, gives the state's seven appellate and 58 county courts until June 30 to develop "comprehensive" policies on "reporting, intake, investigatory, and follow-up processes."

According to a Judicial Council report on the proposed rule, "Courts vary greatly in size and structure, and trial courts have unionized workforces with bargained memorandums of understanding addressing terms and conditions of employment that may require the courts to meet and confer with unions about various policy and procedure changes prior to implementation."

The rule is a response to embarrassing allegations of sexual harassment by judges and supervisors in the courts, most notably the Commission on Judicial Performance hearings for Justice Jeffrey W. Johnson of the 2nd District Court of Appeal. The effort was also championed by Chief Justice Tani Cantil-Sakauye, who has been outspoken about the sexism she said she has experienced even in her current job.

Speaking at Friday's meeting, 3rd District Court of Appeal Justice Harry E. Hull Jr., said part of the goal of the new rule was to help create "a more consistent response across the branch" to harassment allegations, but he added a caveat.

"The proposed rule leaves the specific details of how to structure these policies to the individual courts, allowing courts to determine how to best achieve those requirements in the context of their own structures, limitations and union relationships," said Hull, testifying as chair of the council's Rules and Projects Committee.

"The rule is intended to protect and apply to all employees, not just those of particular status," he added,

Wendy E. Musell, a board member of the California Employment Lawyers Association, provided extensive public comment on the new policy during her term as chair of the group, which ended Jan. 1. She said comments largely focused on the need for minimum standards and consistency across the board.

"We think this is a statewide concern which should be addressed on a statewide levels. ... I have very deep concerns about the unequal application across the state regarding these issues," said the partner with Stewart & Musell LLP, a civil rights and employment law firm in Emeryville.

She added, "In terms of the Judicial Council being precluded from having a system-wide policy and procedure to further address this issue, I don't think the union contracts would prohibit that. Certainly union contracts could go further."

Efforts to reach a spokesperson for the Judicial Council on Wednesday were unsuccessful.