CASB — General Order 18-4B (Admin Order)

Source: https://www.casb.uscourts.gov/sites/casb/files/documents/general-orders/18-4B%20Admin%20Order%20Pkt.pdf

Sparse pages use OCR; original PDF remains authoritative.

i —Y_FILED —— ENTERED —— LOGGED ———RECEIVED UNITED STATES BANKRUPTCY COURT OCT 28 2020 SOUTHERN DISTRICT OF CALIFORNIA CLERK, U.S. BANKRUPTCY COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: BY Cini V DEPUTY AMENDING EMPLOYMENT DISPUTE _ ) ADMINISTRATIVE RESOLUTION POLICY AND ) ORDER NO. 18-4B DESIGNATING AN EMPLOYMENT ) DISPUTE RESOLUTION ) COORDINATOR ) ) The U.S. Bankruptcy Court for the Southern District of California adopts the attached amended Employment Dispute Resolution (EDR) Policy, based upon the revised Model EDR Policy provided by the Ninth Circuit. The EDR Policy has been approved by the Ninth Circuit Judicial Council and is effective as of October 22, 2020. It supersedes the Employment Dispute Resolution Policy adopted in Administrative Order No. 13-5 and 18-4A. A copy of the attached policy will be filed with the Administrative Office of the United States Courts. IT IS ORDERED that Kathy Noel be designated as the Local Employment Dispute Resolution Coordinator and, as Alternate Employment Dispute Resolution Coordinator, the Office of Workplace Relations for the Circuit Executive’s Office of the Ninth Circuit. DATED: October 28, 2020 flares I fh _ Com al het MARGARET M. MANN LOUISE DeCARL ADLER Chief Judge, U.S. Bankruptcy Court Judge, U.S. Bankruptcy Court ATE “LAURA Ss. ptt . Judge, U.S. Bankruptcy Court Judge, U.S. Bankruptcy Court Administrative Order No. 18-4B

U.S. BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA EMPLOYMENT DISPUTE RESOLUTION POLICY

I. INTRODUCTION

The Federal Judiciary is committed to a workplace of respect, civility, fairness, tolerance, and dignity, free of discrimination and harassment. These values are essential to the Judiciary, which holds its Judges and Employees to the highest standards. All Judges and Employees are expected to treat each other accordingly.

This Policy provides options for the reporting and resolution of allegations of wrongful conduct (discrimination, sexual, racial, or other discriminatory harassment, abusive conduct, and retaliation) in the workplace. Early action is the best way to maintain a safe work environment. All Judges, Employing Offices, and Employees have a responsibility to promote workplace civility, prevent harassment or abusive conduct, and to take appropriate action upon receipt of reliable information indicating a likelihood of wrongful conduct under this Policy. See Code of Conduct for Judicial Employees, Canon 3(C).

This Policy applies to all Judges, current and former Employees (including all law clerks; chambers employees; paid and unpaid interns, externs, and other volunteers; and probation and pretrial services employees), and applicants for employment who have been interviewed. 1 The following persons cannot seek relief under this Policy: Judges, applicants for judicial appointment, federal public defender employees, Criminal Justice Act panel attorneys and applicants, investigators and service providers, community defender employees, volunteer mediators, and any other non-Employees not specified above. See Appendix 1 for full definitions of Judges and Employees. This Policy covers conduct and actions that take place on and off work premises.

II. WRONGFUL CONDUCT

A. This Policy prohibits wrongful conduct that occurs during the period of employment or the interview process (for an applicant).2 Wrongful conduct includes:

• Discrimination;
• sexual, racial, and other discriminatory harassment;
• abusive conduct; and
• retaliation (including retaliation as described in the Whistleblower Protection
Provision in Guide to Judiciary Policy, Vol. 12 § 220.10.20(c)).

1 Employees of courts within the Ninth Circuit, which have had an EDR Policy specific to their court approved by the Judicial Council of the Ninth Circuit on or after October 22, 2020, are subject to the applicable local court EDR Policy rather than this Ninth Circuit Policy. 2 The rights and protections of Chapter 1 of the EEO Policy (Appendix 6) shall apply to Employees.

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Wrongful conduct can be verbal, non-verbal, physical, or non-physical.

Wrongful conduct also includes conduct that would violate the following employment laws and policy, as applied to the Judiciary by Judicial Conference policy:

• Title VII, Civil Rights Act of 1964; • Age Discrimination in Employment Act of 1967; • Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973; • Family and Medical Leave Act of 1993; • Uniformed Services Employment and Reemployment Rights Act of 1994; • Whistleblower Protection Provision (Guide, Vol. 12 § 220.10.20(c)); • Worker Adjustment and Retraining Notification Act; • Occupational Safety and Health Act; and • The Employee Polygraph Protection Act of 1988.

See Guide, Vol. 12, Ch. 2.

B. Discrimination is an adverse employment action that materially affects the terms, conditions, or privileges of employment (such as hiring, firing, failing to promote, or a significant change in benefits) based on the following Protected Categories: race, color, sex, gender, gender identity, gender expression, marital status, pregnancy, parenthood, sexual orientation, religion, creed, ancestry, national origin, citizenship, genetic information, age (40 years and over),3 disability, or service in the uniformed forces.

C. Discriminatory harassment occurs when a person covered by this Policy is subject to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the employment and create an abusive working environment. Discriminatory harassment includes sexual harassment. Sexual harassment is a form of harassment based on sex or gender.

Examples of conduct that may give rise to discriminatory harassment: racial slurs; derogatory comments about a person’s ethnicity, culture, or foreign accent; or jokes about a person’s age, disability, or sexual orientation.

3 The age discrimination provision does not apply to hiring, retirement, or separation of probation and pretrial services officers under 5 U.S.C. chapters 83 and 84.

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Examples of conduct that may give rise to sexual harassment: suggestive or obscene notes, emails, text messages, or other types of communications; sexually degrading comments; display of sexually suggestive objects or images; unwelcome or inappropriate touching or physical contact; unwelcome sexual advances or propositions; inappropriate remarks of a sexual nature or about physical appearance; or employment action affected by submission to, or rejection of, sexual advances.

D. Abusive Conduct is ordinarily a pattern of demonstrably egregious and hostile conduct not based on a Protected Category that unreasonably interferes with an Employee’s work and creates an abusive working environment. Abusive conduct is threatening, oppressive, or intimidating.

Abusive conduct does not include communications and actions conveyed in a respectful manner and reasonably related to performance management, including but not limited to: instruction, corrective criticism, and evaluation; performance improvement plans; duty assignments and changes to duty assignments; office organization; progressive discipline; and adverse action.

E. Retaliation is a materially adverse action taken against an Employee for reporting wrongful conduct; for assisting in the defense of rights protected by this Policy; or for opposing wrongful conduct. Retaliation against a person who reveals or reports wrongful conduct is itself wrongful conduct.

III. REPORTING WRONGFUL CONDUCT

The Judiciary encourages early reporting and action on wrongful conduct. Employees who experience, observe, or learn of reliable evidence of sexual, racial, or other discriminatory harassment or abusive conduct are strongly encouraged to take appropriate action, including reporting it to a supervisor, human resources professional, Unit Executive, Employment Dispute Resolution (“EDR”) Coordinator,4 Chief Judge, Chief Circuit Judge, the Office of Workplace Relations, or to the national Office of Judicial Integrity. See Code of Conduct for Judicial Employees, Canon 3(C). Employees are also encouraged to report wrongful conduct in the workplace by non-Employees. Court and chambers’ confidentiality requirements do not prevent any Employee—including law clerks—from revealing or reporting wrongful conduct by any person.

4 A staff member of the Office of Workplace Relations may function as an EDR Coordinator to provide all the Options for Resolution (see Appendix 1).

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IV. OPTIONS FOR RESOLUTION

The Judiciary’s goal is to address wrongful conduct as soon as possible and to provide multiple, flexible options for doing so. An Employee is always free to address a conduct issue directly with the person who allegedly committed wrongful conduct or to contact a colleague, supervisor, Unit Executive, Judge, Chief Judge, or other individual to discuss or address the situation. This Policy provides the following additional options, and Employees may choose the option(s) that best fit their needs and comfort level.

A. Policy Options. This Policy provides three options to address wrongful conduct, as explained in detail below:

1. Informal Advice
2. Assisted Resolution
3. Formal Complaint

B. General Rights. All options for resolution are intended to respect the privacy of all involved to the greatest extent possible, and to protect the fairness and thoroughness of the process by which allegations of wrongful conduct are initiated, investigated, and ultimately resolved.

1. Confidentiality. All individuals involved in the processes under this Policy
must protect the confidentiality of the allegations of wrongful conduct.
Information will be shared only to the extent necessary and only with those
whose involvement is necessary to address the situation. An assurance of
confidentiality must yield when there is reliable information of wrongful
conduct that threatens the safety or security of any person or that is serious
or egregious such that it threatens the integrity of the Judiciary.

No person in the role of EDR Coordinator, the Office of Workplace
Relations, or the Office of Judicial Integrity shall be compelled to disclose
any conversations, testify, or provide information obtained through Informal
Advice except as described in § IV.B.1.

Any persons or Party involved in mediation or settlement discussion under
§§ IV.C.2. or IV.C.3.f.iii. of this Policy shall not disclose any information or
records obtained during the mediation or settlement process except as
necessary to consult with the Party or Parties involved. Records made of
mediation discussions, including notes and documents provided in
preparation for mediation, are strictly confidential and will not be filed with

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the EDR Coordinator, Office of Workplace Relations, or Office of Judicial Integrity (see § V.B.).

Confidentiality obligations in the Code of Conduct for Judicial Employees concerning use or disclosure of confidential information received in the course of official duties do not prevent nor should they discourage Employees from reporting or disclosing wrongful conduct, including sexual, racial, or other forms of discriminatory harassment by a Judge, supervisor, or other person.

Supervisors, Unit Executives, and Judges must take appropriate action when they learn of reliable information of wrongful conduct, such as sexual, racial, or other discriminatory harassment, which may include informing the appropriate Chief Judge.

2. Impartiality. All investigations, hearings, and other processes under this Policy must be conducted in a fair and impartial manner. The EDR Coordinator, the Office of Workplace Relations, and the Presiding Judicial Officer must be impartial and may not act as an advocate for either Party.

   The EDR Coordinator, staff member of the Office of Workplace Relations, or Presiding Judicial Officer must recuse if they participated in, witnessed, or were otherwise involved with the conduct or employment action giving rise to the claim. Recusal of these individuals is also required if the matter creates an actual conflict or the appearance of a conflict.

3. Right to representation. Both the Employee and the Employing Office responsible for providing any remedy have the right to be represented by an attorney or other person of their choice at their own expense. Another Employee may assist the Employee or Employing Office if doing so will not constitute a conflict of interest or unduly interfere with the Employee’s duties, as determined by the assisting Employee’s appointing officer.

4. Interim Relief. An Employee, including a law clerk or other chambers employee, who pursues any of the options under this Policy may request transfer, an alternative work arrangement, or administrative leave if the Employee alleges egregious conduct by a supervisor, Unit Executive, or Judge that makes it untenable to continue working for that person. Any such request must be made to the Unit Executive or Chief Judge, as appropriate, to determine appropriate interim relief, if any, taking into consideration the impact on any Employing Office.

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5. Allegations Regarding a Judge. An Employee alleging that a Judge has engaged in wrongful conduct may use any of the options for resolution as set forth in Section C. An Employee may also file a complaint under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364.

C. Specific Options

1. Informal Advice. An Employee may contact an EDR Coordinator, the
Office of Workplace Relations, or the national Office of Judicial Integrity for
confidential advice and guidance (see § IV.B.1) about a range of topics
including:

• the rights and protections afforded under this Policy, the Judicial
Conduct and Disability Act, and any other processes;
• providing perspective on conduct described, including whether it
violates the Policy;
• ways to respond to wrongful conduct as it is happening; and/or
• options for addressing the conduct, such as informal resolution,
participating in Assisted Resolution, or pursuing a Formal Complaint
under this Policy, the Judicial Conduct and Disability Act, or any
other processes.

2. Assisted Resolution. Assisted Resolution is an interactive, flexible process
that may include:

• discussing the matter with the person whose behavior is of concern;
• conducting a preliminary investigation including interviewing
persons alleged to have violated rights under this Policy and witnesses
to the conduct;
• engaging in voluntary mediation between the persons involved;
and/or
• resolving the matter by agreement.

a. To pursue this option, an Employee must contact an EDR Coordinator
or the Office of Workplace Relations and complete a “Request for Assisted
Resolution” (Appendix 2).5 An Employee asserting any claim of abusive conduct

5 When an Employee completes a Request for Assisted Resolution form and chooses to use a local EDR Coordinator to facilitate resolution, the local EDR Coordinator must notify the Office of Workplace Relations of the request.

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is strongly encouraged to use Assisted Resolution before filing a Formal Complaint but is not required to do so. Filing a Request for Assisted Resolution does not toll (extend) the time for filing a Formal Complaint under § IV.C.3 unless one of the Parties requests, and the Chief Judge or Presiding Judicial Officer grants, an extension of time for good cause, as permitted in § IV.C.3.a.

b. If the allegations concern the conduct of a Judge, the Chief Judge of
the appropriate district, bankruptcy, or circuit Court must be notified and will be
responsible for coordinating any Assisted Resolution and/or taking any other action
required or appropriate under the circumstances. See, e.g., Rules for Judicial-
Conduct and Judicial-Disability Proceedings.

c. If the allegations concern the conduct of an Employee, the EDR
Coordinator or the Office of Workplace Relations will coordinate Assisted
Resolution and must notify the appropriate Unit Executive(s). The Unit Executive
is responsible for assessing the allegation(s) and taking appropriate steps to resolve
the matter. If the allegations concern the conduct of a Unit Executive, the EDR
Coordinator or the Office of Workplace Relations must notify the Chief Judge, who
is responsible for assessing the allegation(s) and addressing the matter as
appropriate.

d. The Unit Executive or Chief Judge responsible for assessing the
allegations, as indicated in (b) and (c) above, may deny the Request for Assisted
Resolution at any time if they were to conclude it is frivolous; it does not allege
violations of the rights or protections in this Policy; the alleged conduct arises out
of the same facts and circumstances, and was resolved by, a previous EDR
Complaint or other claim process or procedure; or on other appropriate grounds.

e. If Assisted Resolution is successful in resolving the matter, the Parties
will so acknowledge in writing.

f. If Assisted Resolution is not successful in resolving the matter, the
EDR Coordinator or the Office of Workplace Relations will advise the Employee
of the Employee’s rights to file a Formal Complaint and/or pursue action under the
Judicial Conduct and Disability Act, if applicable, or any other processes.

The Office of Workplace Relations may serve as a resource for the EDR Coordinator to facilitate resolution at the EDR Coordinator’s request.

When an Employee completes a Request for Assisted Resolution form and chooses to use the Office of Workplace Relations to facilitate the resolution, the Office of Workplace Relations may notify the local EDR Coordinator when appropriate or upon request of the Employee.

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3. Filing a Formal Complaint. An Employee may file a Formal Complaint
   (“Complaint”) with any of the Court’s EDR Coordinators or the Office of
   Workplace Relations to address a claim of wrongful conduct.6

   a. To file a Complaint, an Employee must submit a “Formal Complaint”

   (Appendix 3) to any of the Court’s EDR Coordinators or the Office of Workplace Relations within 180 days of the alleged wrongful conduct or within 180 days of the time the Employee becomes aware or reasonably should have become aware of such wrongful conduct. Use of the Informal Advice or Assisted Resolution options does not toll (extend) this 180-day deadline unless the Chief Judge of the Court or the Presiding Judicial Officer grants an extension of time for good cause. b. An Employee asserting any claim of abusive conduct is strongly encouraged to use Assisted Resolution before filing a Formal Complaint but is not required to do so. c. The Employee filing the Complaint is called the Complainant. The Party responding to the Complaint is the Employing Office that is responsible for providing any appropriate remedy and is called the Respondent. The Complaint is not filed against any specific individual(s) but against the Employing Office. d. Complaint Regarding a Judge. An Employee alleging that a Judge has engaged in wrongful conduct may file a Complaint under this Policy. For Complaints against Judges, the Presiding Judicial Officer is the Chief Circuit Judge or a designee. If the Chief Circuit Judge is the subject of the Complaint, the Circuit Judge who is next in precedence to become Chief Circuit Judge pursuant to 28 U.S.C. § 45, shall designate an alternative Presiding Judicial Officer to oversee the hearing process. The EDR Coordinator must immediately provide a copy of the Complaint to the Chief Circuit Judge (or the next Circuit Judge in precedence to become Chief Circuit Judge, if the allegation is against the Chief Circuit Judge) , who will oversee the EDR Complaint process. If a District, Magistrate, or Bankruptcy Judge is the subject of the Complaint, the EDR Coordinator must also provide a copy of the Complaint to the Chief District Judge, and to the Chief Bankruptcy Judge if a Bankruptcy Judge is the subject of the Complaint (unless the Chief District Judge or Chief Bankruptcy Judge is the subject of the Complaint, in which case the Complaint would not be given to that Judge).

6 When an Employee files a Formal Complaint form with a local EDR Coordinator, the local EDR Coordinator must notify the Office of Workplace Relations of the Complaint. The Office of Workplace Relations may serve as a resource for the EDR Coordinator upon the EDR Coordinator’s request.

When an Employee files a Formal Complaint form with the Office of Workplace Relations, the Office of Workplace Relations may notify the local EDR Coordinator when appropriate or upon request of the Employee.

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If a Judge becomes the subject of both a Complaint under this Policy and a complaint under the Judicial Conduct and Disability Act, the Chief Circuit Judge will determine the appropriate procedure for addressing both, which may include holding the EDR claim in abeyance and determining how best to find any common issues of fact, subject to all requirements of the Judicial Conduct and Disability Act, the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and, as practicable, this EDR Policy. Regardless of whether there is a formal complaint under the Judicial Conduct and Disability Act, the Chief Circuit Judge should consider the need for any necessary or appropriate interim relief.

e. Formal Complaint Procedures and Procedural Rights

i. Appointment of Presiding Judicial Officer. Upon receipt of a
Complaint, the EDR Coordinator will immediately send a copy of the
Complaint to the Chief Judge of the Court, who will appoint a Presiding
Judicial Officer. The Presiding Judicial Officer will be a Judge in the Court
or, when appropriate, a Judge from another Court (with the consent of the
respective Chief Judge of that Court).

ii. Presiding Judicial Officer. The Presiding Judicial Officer
oversees the Complaint proceeding. The Presiding Judicial Officer will
provide a copy of the Complaint to the head of the Employing Office against
which the Complaint has been filed (Respondent), except when the Presiding
Judicial Officer determines for good cause that the circumstances dictate
otherwise. The Presiding Judicial Officer must provide the individual
alleged to have violated rights under this Policy notice that a Complaint has
been filed and the nature and substance of the Complaint allegations.

The Presiding Judicial Officer will provide for appropriate investigation and
discovery, allow for settlement discussions, 7 and determine any written
submissions to be provided to the Parties, determine if a hearing is needed,
determine the time, date, and place of the hearing, issue a written decision,
and, if warranted, order remedies.

iii. Disqualification and Replacement. Either Party may seek
disqualification of the EDR Coordinator or the Presiding Judicial Officer by

7 The Employing Office may request in writing a stay, or the Presiding Judicial Officer may on the Presiding Judicial Officer’s own initiative stay a Formal Complaint proceeding up to 60 days (unless extended for good cause), if the Employing Office asserts that there has been no prior opportunity to address the conduct alleged. The Presiding Judicial Officer will determine whether to grant the stay after providing the Complainant an opportunity to respond. A stay in the proceedings can provide the Employing Office an opportunity to assess the allegations and take appropriate action. If the matter is successfully resolved, the Parties may enter into an agreed written settlement approved by the Presiding Judicial Officer pursuant to § IV.C.3.f.iii. If the matter is not resolved during the stay, the stay of proceedings will be lifted, and the Formal Complaint will proceed under § IV.C.3.

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written request to the Chief Judge, explaining why the individual should be disqualified.

If the Presiding Judicial Officer is disqualified, the Chief Judge will designate another Judge to serve as Presiding Judicial Officer. If the EDR Coordinator is disqualified, the Chief Judge will appoint one of the alternate EDR Coordinators or, if available, an EDR Coordinator from another Court (with the consent of the respective Chief Judge of that Court).

iv. Response. The Respondent may file a Response to the

Complaint with the EDR Coordinator within 30 days of receiving the Complaint. The EDR Coordinator must immediately send the Response to the Presiding Judicial Officer and to the Complainant.

v. Investigation and Discovery. The Presiding Judicial Officer

will ensure that the allegations are impartially and fairly investigated, and may use outside trained investigators if warranted. The investigation may include interviews with persons alleged to have violated rights under this Policy and witnesses, review of relevant records, and collecting documents or other records. The Presiding Judicial Officer will provide for such discovery to the Complainant and Respondent as is necessary and appropriate. The Presiding Judicial Officer will also determine what evidence and written arguments, if any, are necessary for a fair and complete assessment of the allegations and response.

vi. Case preparation. The Complainant may use official time to

prepare their case, so long as it does not unduly interfere with the performance of duties.

vii. Extensions of time. Any request for an extension of time must

be in writing. The Presiding Judicial Officer may extend any of the deadlines set forth in this EDR Policy for good cause, except for the deadline to issue a written decision, which may only be extended by the Chief Judge.

viii. Established Precedent. In reaching a decision, the Presiding

Judicial Officer should be guided by judicial and administrative decisions under relevant rules and statutes, as appropriate. The Federal Rules of Evidence and any federal procedural rules do not apply.

ix. Notice of Written Decision. The EDR Coordinator or Presiding

Judicial Officer will immediately send a copy of the written decision to the Parties, the Chief Judge of the Court, and to any individual alleged to have

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violated rights protected by this Policy. The EDR Coordinator will inform the Parties of appeal rights, procedures, and deadlines.

f. Resolution of Complaint Without a Hearing. After notifying the

Parties and giving them an opportunity to respond, the Presiding Judicial Officer may resolve the matter without a hearing.

i. The Presiding Judicial Officer may dismiss a Complaint and
issue a written decision at any time in the proceedings on the grounds that: it
is untimely filed, is frivolous, fails to state a claim, or does not allege
violations of the rights or protections in this Policy; the alleged conduct arises
out of the same facts and circumstances, and was resolved by, a previous
EDR Complaint or other claim process or procedure; or on other appropriate
grounds.

ii. After completion of investigation and discovery, the Presiding
Judicial Officer may, on the Presiding Judicial Officer’s own initiative or at
the request of either Party, issue a written decision if the Presiding Judicial
Officer determines that no relevant facts are in dispute and that one of the
Parties is entitled to a favorable decision on the undisputed facts.

iii. The Parties may enter into an agreed written settlement if
approved in writing by the Presiding Judicial Officer and the Chief Judge.

g. Resolution of Complaint With a Hearing. If the Complaint is not

resolved in its entirety by dismissal, Assisted Resolution, decision without a hearing, or settlement, the Presiding Judicial Officer will order a hearing on the merits of the Complaint.

i. Hearing. The hearing will be held no later than 60 days after
the filing of the Complaint unless the Presiding Judicial Officer extends the
deadline for good cause. The Presiding Judicial Officer will determine the
place and manner of the hearing.

ii. Notice. The Presiding Judicial Officer must provide
reasonable notice of the hearing date, time, and place to the Complainant, the
Respondent, and any individual(s) alleged to have violated the
Complainant’s rights.

iii. Right to Present Evidence. The Complainant and Respondent
have the right to present witnesses and documentary evidence and to examine
adverse witnesses, subject to the discretion of the Presiding Judicial Officer.

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vi. Record of Proceedings. A verbatim record of the hearing must be made and will be the official record of the proceeding. This may be a digital recording or a transcript.

v. Written Decision. The Presiding Judicial Officer will make
findings of fact and conclusions of law and issue a written decision no later
than 60 days after the conclusion of the hearing, unless an extension for good
cause is granted by the Chief Judge.

h. Remedies. When the Presiding Judicial Officer finds that the
Complainant has established by a preponderance of the evidence (more likely than
not) that a substantive right protected by this Policy has been violated, the Presiding
Judicial Officer may direct the Employing Office to provide remedies for the
Complainant. The remedies are limited to providing relief to the Complainant,
should be tailored as closely as possible to the specific violation(s) found, and take
into consideration the impact on any Employing Office. The Chief Judge and
Employing Office (Respondent) must take appropriate action to carry out the
remedies ordered in the written decision, subject to any applicable policies or
procedures.

i. Allowable Remedies may include:

• placement of the Complainant in a position previously denied;
• placement of the Complainant in a comparable alternative position;
• reinstatement to a position from which the Complainant was previously
removed;
• prospective promotion of the Complainant;
• priority consideration of the Complainant for a future promotion or position;
• back pay and associated benefits, when the statutory criteria of the Back Pay
Act are satisfied8;
• records modification and/or expungement;
• granting of family and medical leave;
• any reasonable accommodation(s); and
• any other appropriate remedy to address the wrongful conduct.9

8 Back Pay Act. Remedies under the Back Pay Act, including attorney’s fees, may be ordered only when the statutory criteria of the Back Pay Act are satisfied, which include: (1) a finding of an unjustified or unwarranted personnel action; (2) by an appropriate authority; (3) which resulted in the withdrawal or reduction of all or part of the Employee’s pay, allowances, or differentials. An order of back pay is subject to review and approval by the Director of the Administrative Office of the United States Courts. See 5 U.S.C. § 5596 (b)(1) and Guide, Vol. 12, § 690.

9 The issue in an EDR Complaint is whether the Employing Office is responsible for the alleged conduct; it is not an action against any individual. The Presiding Judicial Officer lacks authority to impose disciplinary or similar action

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ii. Unavailable Remedies. Other than under the Back Pay Act, monetary damages are not available. The Presiding Judicial Officer may award attorney’s fees only if the statutory requirements under the Back Pay Act are satisfied.

i. Review of Decision (Appeal). The Complainant and/or the
Respondent may appeal the decision to the Judicial Council of the Ninth Circuit by
submitting in writing a Petition for Review of Decision setting forth the grounds for
appeal within 30 days of the date of the decision under procedures established by the
Judicial Council of the Ninth Circuit (Appendix 4). The EDR Coordinator will
inform the Parties of the procedures for seeking review. The decision will be
reviewed based on the record created by the Presiding Judicial Officer and will be
affirmed if supported by substantial evidence and the proper application of legal
principles.

V. COURT AND EMPLOYING OFFICE OBLIGATIONS

To ensure that Employees are aware of the options provided by this Policy, and that the Policy is effectively implemented, Courts and Employing Offices must adhere to the following:

A. Adopt and Implement EDR Policy. All Courts must adopt and implement an EDR Policy based on this EDR Policy. Courts may join with others to adopt consolidated EDR Policies. Any modification of this EDR Policy (1) may expand, but should not diminish or curtail, any of the rights or remedies afforded Employees under this EDR Policy, and (2) must be approved by the Judicial Council of the Ninth Circuit. A copy of each EDR Policy and any subsequent modifications must be filed with the Administrative Office.

B. Records. At the conclusion of informal or formal proceedings under this Policy, all papers, files, and reports will be filed with the EDR Coordinator and the Office

against an individual. When there has been a finding of wrongful conduct in an EDR proceeding, an appointing official, or official with delegated authority, should separately assess whether further action, in accordance with any applicable policies and procedures, is necessary to correct and prevent wrongful conduct and promote appropriate workplace behavior, such as:

• requiring counseling or training;
• ordering no contact with the Complainant;
• reassigning or transferring an Employee;
• reprimanding the Employee who engaged in wrongful conduct;
• issuing a suspension, probation, or demotion of the Employee who engaged in wrongful conduct; and/or
• terminating employment for the Employee who engaged in wrongful conduct.

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of Workplace Relations. No papers, files or reports relating to an EDR matter will be filed in any Employee’s personnel folder, except as necessary to implement an official personnel action.

Final decisions under this Policy will be made available to the public, appropriately redacted, in accordance with procedures established by the Judicial Council of the Ninth Circuit. The Presiding Judicial Officer should make a recommendation on whether a final decision should be public.

C. EDR Coordinators. The Chief Judge will designate both a primary EDR Coordinator and, if available, at least one alternate EDR Coordinator for the Court.10 A Court may use an EDR Coordinator from another Court, or may use the Office of Workplace Relations as an alternate EDR Coordinator, if necessary, with the approval of the appropriate Chief Judge. An Employee may choose the EDR Coordinator with whom the Employee wishes to seek Informal Advice, request Assisted Resolution, or file a Complaint under this EDR Policy.

An EDR Coordinator must be an Employee who is not a Unit Executive. A Judge may not be an EDR Coordinator. All EDR Coordinators must be trained and certified as set forth in the EDR Interpretive Guide and Handbook.

D. Advising Employees of their Rights. Courts and Employing Offices must:

1. prominently post on their internal and external main homepages a direct link
labeled “Your Employee Rights and How to Report Wrongful Conduct,” to:

• the entire EDR Policy with all Appendices and relevant contact
information;
• the Judicial Conduct and Disability Act, the Rules for Judicial-Conduct
and Judicial-Disability Proceedings, and the Judicial Conduct and
Disability Complaint form; and
• contact information for all the Court’s EDR Coordinators, the Office of
Workplace Relations, and the national Office of Judicial Integrity
(internal homepage only).

10 A team of EDR Coordinators or multiple EDR Coordinators would satisfy the requirement to designate a primary and alternate EDR Coordinator.

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2. prominently display in the workplace:

   • the posters set forth in Appendix 5; and
   • an Anti-Discrimination and Harassment Notice that: (a) states that
   discrimination or harassment based on race, color, sex, gender, gender
   identity, gender expression, marital status, pregnancy, parenthood, sexual
   orientation, religion, creed, ancestry, national origin, citizenship, genetic
   information, age (40 years and over), disability, or service in the
   uniformed forces is prohibited; (b) explains that Employees can report,
   resolve, and seek remedies for discrimination, harassment, or other
   wrongful conduct under the EDR Policy by contacting any of the Court’s
   EDR Coordinators and/or the Office of Workplace Relations, and/or the
   national Office of Judicial Integrity; (c) identifies the names and contact
   information of all Court EDR Coordinators, the Office of Workplace
   Relations, and the national Office of Judicial Integrity; and (d) states
   where the EDR Policy can be located on the Court’s website.

   3. ensure that each new Employee receives an electronic or paper copy of the
   EDR Policy and acknowledge in writing that the Employee has read the
   Policy; and

   4. conduct training annually for all Judges and Employees, including chambers
   staff, to ensure that they are aware of the rights and obligations under the
   EDR Policy and the options available for reporting wrongful conduct and
   seeking relief.

E. Reporting. Courts and Employing Offices will provide annually, to the Administrative Office of the United States, data on: (1) the number and types of alleged violations for which Assisted Resolution was requested, and for each matter, whether it was resolved or was also the subject of a Complaint under this Policy or other complaint; (2) the number and type of alleged violations for which Complaints under this Policy were filed; (3) the resolution of each Complaint under this Policy (dismissed or settled prior to a decision, or decided with or without a hearing); and (4) the rights under this Policy that were found by decision to have been violated. Courts and Employing Offices should also provide any information that may be helpful in identifying the conditions that may have enabled wrongful conduct or prevented its discovery, and what precautionary or curative steps should be undertaken to prevent its recurrence.

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F. Appendices Attached:

1. Definitions
2. Request for Assisted Resolution
3. Formal Complaint Form
4. Procedures for Review of EDR Presiding Judicial Officer Decision by the
Executive Committee of the Judicial Council of the Ninth Circuit (Appeal)
5. Posters
6. Ninth Circuit Equal Employment Opportunity (EEO) Policy

This Policy supersedes all prior Equal Employment Opportunity and Employment Dispute Resolution Policies.

Effective date: October 22, 2020

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DEFINITIONS APPENDIX 1

Office of Workplace Relations: The Office of Workplace Relations serves the Ninth Circuit and includes the Director of Workplace Relations. The Office coordinates workplace conduct issues and the implementation of all Court EDR Policies within the circuit. The scope of duties generally may include: provide Informal Advice, coordinate Assisted Resolution, and assist with the Formal Complaint process under any EDR Policy within the circuit; assist in training the EDR Coordinators within the circuit; provide or arrange for training throughout the circuit on workplace conduct, discrimination, and sexual harassment; and collect and analyze statistical data and other information relevant to workplace conduct matters. A staff member of the Office of Workplace Relations may function as an EDR Coordinator and provide all Options for Resolution for Employees.

Court: The Court (Court of Appeals, District Courts, Bankruptcy Courts, Court of Federal Claims and Court of International Trade, or of any Court created by an Act of Congress in a territory that is invested with any jurisdiction of a District Court of the United States) in which the Employing Office that would be responsible for ordering redress, correction, or abatement of a violation of rights under this EDR Policy is located. In the case of disputes involving probation and pretrial services, “Court” refers to the appropriate District Court.

EDR Coordinator: A Court Employee or staff member of the Office of Workplace Relations, other than a Judge or Unit Executive, designated by the Chief Judge to coordinate all of the Options for Resolution provided for in this Policy. The EDR Coordinator provides confidential advice and guidance (see § IV.B.1.) if an Employee seeks Informal Advice; coordinates the Assisted Resolution process, including any necessary investigation; accepts Complaints under this Policy for filing; and assists the Presiding Judicial Officer in the Complaint proceeding, as directed. The EDR Coordinator maintains and preserves all Court files pertaining to matters initiated and processed under this EDR Policy. The EDR Coordinator assists the Court in meeting its obligations under this Policy to train and advise employees of their rights under this Policy, and to post the Policy as directed. Additional information on the EDR Coordinator’s responsibilities may be found in the EDR Interpretive Guide and Handbook.

Employee: All employees of a Court. This includes Unit Executives and their staffs; judicial assistants and other chambers employees; law clerks; and chief probation officers and chief pretrial services officers and their respective staffs; court reporters appointed by a Court; and paid and unpaid interns, externs, and other volunteer employees.

Employing Office/Respondent: The office of the Court that is responsible for providing any appropriate remedy. The Court is the Employing Office of Judges and chambers employees.

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Judge: A judge appointed under Article III of the Constitution, a United States bankruptcy judge, a United States magistrate judge, a judge of the Court of Federal Claims, a judge of the Court of International Trade, or a judge of any Court created by an Act of Congress in a territory that is invested with any jurisdiction of a district court of the United States.

Office of Judicial Integrity: The office of the Administrative Office of the United States Courts staffed to provide advice and guidance to Employees nationwide about workplace conduct issues, including sexual, racial, and other discriminatory harassment, abusive conduct and other wrongful conduct. Contact information for the Office of Judicial Integrity can be found on JNet and on uscourts.gov.

Parties: The Employing Office and the Employee who has filed a request for Assisted Resolution or a Formal Complaint.

Protected Category: Race, color, sex, gender, gender identity, gender expression, marital status, pregnancy, parenthood, sexual orientation, religion, creed, ancestry, national origin, citizenship, genetic information, age (40 years and over),11 disability, or service in the uniformed forces.

Unit Executive: Circuit Executive, district court executive, clerk of court, chief probation officer, chief pretrial services officer, bankruptcy administrator, bankruptcy appellate panel clerk, senior staff attorney, chief preargument/conference attorney/circuit mediator, or circuit librarian.

11 The age discrimination provision does not apply to hiring, retirement, or separation of probation and pretrial services officers under 5 U.S.C. chapters 83 and 84. 2

REQUEST FOR ASSISTED RESOLUTION APPENDIX 2

*USE OF ASSISTED RESOLUTION DOES NOT EXTEND THE 180-DAY

DEADLINE TO FILE A FORMAL COMPLAINT UNLESS THE DEADLINE IS EXTENDED UNDER THE EDR POLICY § IV.C.3.a.*

Submitted under the Procedures of the U.S. District Court for the Southern District of California Employment Dispute Resolution Policy

Court: __________________________________________________________________

Full name of person submitting the form: _______________________________________

Your mailing address: ______________________________________________________

Your email address: _______________________________________________________

Your phone number(s): _____________________________________________________

Office in which you are employed or applied to: __________________________________

Name and address of Employing Office from which you seek assistance (if the matter involves a judge or chambers employee, the Employing Office is the Court):

Your job title/job title applied for: ____________________________________________

Date of interview (for interviewed applicants only): _______________________________

Date(s) of alleged incident(s) for which you seek Assisted Resolution:

Summary of the actions or occurrences for which you seek Assisted Resolution (attach additional pages as needed):

Names and contact information of witnesses to the actions or occurrences for which you seek Assisted Resolution:

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Describe the assistance or corrective action you seek:

Alleged Wrongful Conduct for which you seek Assisted Resolution (check all that apply):

Discrimination based on (check all Harassment based on (check all that☐ ☐ that apply): apply): Race Race ☐ ☐ Color Color ☐ ☐ Sex Sex ☐ ☐ Gender Gender ☐ ☐ Gender identity Gender identity ☐ ☐ Gender expression Gender expression ☐ ☐ Marital status Marital status ☐ ☐ Pregnancy Pregnancy ☐ ☐ Parenthood Parenthood ☐ ☐ Sexual orientation Sexual orientation ☐ ☐ Religion Religion ☐ ☐ Creed Creed ☐ ☐ Ancestry Ancestry ☐ ☐ National origin National origin ☐ ☐ Citizenship Citizenship ☐ ☐ Genetic information Genetic information ☐ ☐ Age Age ☐ ☐ Disability Disability ☐ ☐ Service in the uniformed Service in the uniformed ☐ ☐ forces forces

Abusive Conduct Uniform Services Occupational Safety☐ ☐ ☐ Retaliation Employment and and Health☐ Whistleblower☐ Reemployment ☐ Polygraph Protection Rights Protection Other (describe) ☐ Worker Adjustment Family and Medical ☐☐ and Retraining Leave

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Do you have an attorney or other person who represents you?

Yes☐ Please provide name, mailing address, email address, and phone number(s):

No☐ I acknowledge that this Request will be kept confidential to the extent possible, but information may be shared to the extent necessary and with those whose involvement is necessary to resolve this matter, as explained in the EDR Policy (see EDR Policy § IV.B.1).

Your signature ___________________________________________________________

Date submitted ___________________________________________________________

Request for Assisted Resolution reviewed by EDR Coordinator/Director of Workplace Relations on _____________________________________________________________

EDR Coordinator/Director of Workplace Relations name __________________________

EDR Coordinator/Director of Workplace Relations signature _______________________

Local Court Claim ID (Court Initials–AR–YY–Sequential Number): _________________

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FORMAL COMPLAINT FORM APPENDIX 3

Submitted under the Procedures of the U.S. Bankruptcy Court for the Southern District of California Employment Dispute Resolution Policy

Court: __________________________________________________________________

Full name of person submitting the form (Complainant): __________________________

Your mailing address: ______________________________________________________

Your email address: _______________________________________________________

Your phone number(s): _____________________________________________________

Office in which you are employed or applied to: __________________________________

Name and address of Employing Office from which you seek a remedy (if the matter involves a judge or chambers employee, the Employing Office is the Court):

Your job title/job title applied for: ____________________________________________

Date of interview (for interviewed applicants only): _______________________________

Date(s) of alleged incident(s) for which you seek a remedy:

Summary of the actions or occurrences giving rise to the Complaint (attach additional pages as needed):

Describe the remedy or corrective action you seek (attach additional pages as needed):

Identify, and provide contact information for, any persons who were involved in this matter, who were witnesses to the actions or occurrences, or who can provide relevant information concerning the Complaint (attach additional pages as needed):

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Identify the Wrongful Conduct that you believe occurred (check all that apply):

Discrimination based on (check all Harassment based on (check all that☐ ☐ that apply): apply): Race Race ☐ ☐ Color Color ☐ ☐ Sex Sex ☐ ☐ Gender Gender ☐ ☐ Gender identity Gender identity ☐ ☐ Gender expression Gender expression ☐ ☐ Marital status Marital status ☐ ☐ Pregnancy Pregnancy ☐ ☐ Parenthood Parenthood ☐ ☐ Sexual orientation Sexual orientation ☐ ☐ Religion Religion ☐ ☐ Creed Creed ☐ ☐ Ancestry Ancestry ☐ ☐ National origin National origin ☐ ☐ Citizenship Citizenship ☐ ☐ Genetic information Genetic information ☐ ☐ Age Age ☐ ☐ Disability Disability ☐ ☐ Service in the uniformed forces Service in the uniformed forces ☐ ☐

Abusive Conduct☐ Retaliation Uniform Services Occupational Safety☐ ☐ ☐ Whistleblower Employment and and Health☐ Protection Reemployment Polygraph Protection ☐ Rights Family and Medical Other (describe)☐ ☐ Leave Worker Adjustment ☐ and Retraining

Date on which Assisted Resolution was requested: _______________________________

Date on which Assisted Resolution concluded: __________________________________

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Do you have an attorney who represents you?

Yes ☐
Please provide name, mailing address, email address, and phone number(s):

No ☐

I have attached copy(ies) of any documents that relate to my Complaint (such as emails,☐

notices of discipline or termination, job application, etc.)

I acknowledge that this Complaint will be kept confidential to the extent possible, but information may be shared to the extent necessary and with those whose involvement is necessary to resolve this matter, as explained in the EDR Policy (see EDR Policy § IV.B.1).

I affirm that the information provided in this Complaint is true and correct to the best of my knowledge:

Complainant signature _____________________________________________________

Date submitted ___________________________________________________________

Complaint reviewed by EDR Coordinator/Director of Workplace Relations on _________

EDR Coordinator/Director of Workplace Relations name __________________________

EDR Coordinator/Director of Workplace Relations signature _______________________

Local Court Claim ID (Court Initials–FC–YY–Sequential Number): _________________

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PROCEDURES FOR REVIEW OF EDR PRESIDING JUDICIAL OFFICER DECISION BY THE EXECUTIVE COMMITTEE OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT (APPEAL) APPENDIX 4

I. Scope of the Rules

These rules govern procedures for petitioning for review a decision, or summary dismissal of a Ninth Circuit Employment Dispute Resolution Policy Complaint rendered by a Presiding Judicial Officer (see § IV.C.3.e.ii). Such review is conducted by the Executive Committee of the Judicial Council of the Ninth Circuit (“Executive Committee”).

II. Filing Petition for Review

A. Filing the Petition for Review. A Party aggrieved by the final decision of the Presiding Judicial Officer or by summary dismissal of a Complaint, may petition for review of that decision or summary dismissal by filing a Petition for Review (“Petition”) to which is attached a copy of the decision of the Presiding Judicial Officer (or copy of the summary dismissal).

B. Form of Petition and Supporting Arguments. The Petition shall be in accordance with Form 1, which follows these procedures. Included in the Petition or as an attachment to the Petition shall be a statement, not to exceed 10 pages in length (8 ½ x 11 white paper, double-spaced, singled-sided) setting forth the basis for the Petition and all arguments and information supporting the petition. The Petition must be filed with the Executive Committee in a timely manner as set forth in Section III below.

C. Serving the Petition for Review. The petitioning party must serve the Petition on the Executive Committee by having it delivered to the Office of Workplace Relations at the following address:

Office of Workplace Relations Parcel Delivery
P.O. Box 193939 Office of Workplace Relations
San Francisco, CA 94119 95 Seventh Street
San Francisco, CA 94103

The Petition may also be emailed to the Office of Workplace Relations at
workplacedirector@ce9.uscourts.gov.

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Simultaneously, a copy of the Petition (and all attachments thereto) must be served on the opposing party, and proof of such service shall be included with the Petition filed with the Executive Committee.

III. Filing Deadlines

A. Time for Filing a Petition for Review. A Petition for Review must be submitted to the Executive Committee no later than 30 days following the date of the final decision of the Presiding Judicial Officer or following the date of a summary dismissal of the Complaint.

B. Requests for Extension of Time. The Executive Committee may extend the time to file a Petition for Review and for any other filing specified in these procedures, provided the request is received no later than the required filing date, and provided the petitioner shows good cause or excusable neglect.

C. Determining Time Periods. The word “days” in all filing deadlines in these procedures shall mean calendar days, except that if the deadline date occurs on a Saturday, Sunday, or holiday, the deadline shall be extended to the next following Monday or court business day respectively.

IV. Consideration by the Executive Committee

A. General. All reviews will be conducted by the members of the Executive Committee, and shall be based on the decision of the Presiding Judicial Officer or the summary dismissal of a Complaint and any documents submitted by the Parties in response to the directive of the Executive Committee as outlined below.

B. Scope of the Record and Documents to be Considered. Within 20 days following receipt of the Petition for Review, the Executive Committee shall notify the Parties concerning what, if any, additional information, i.e., record (e.g., hearing transcript), documents and/or briefs, may be submitted for its consideration. Unless notified by the Executive Committee of its request for additional information, neither party is to submit further information.

C. Oral Argument. Oral argument will normally not be permitted but may be ordered by the Executive Committee. Either party may request such argument in writing filed within 7 days following filing of the Petition as part of the petition (in the case of the

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party filing the Petition) or (in the case of the Respondent) in a letter submitted no later than 7 days from receipt of the Petition, setting forth the specific reasons why such argument is necessary, and why adequate argument cannot be made in writing form. If granted, oral argument, may, at the sole discretion of the Executive Committee, be conducted via teleconference using video and/or audio technology.

D. Standard of Review. The final decision or summary dismissal of the Presiding Judicial Officer shall be affirmed if supported by substantial evidence.

E. Summary Disposition. If at any time prior to the final submission of the case for review, the Executive Committee determines that the basis(es) of the request for review are so insubstantial as to not justify further proceedings, the Court may issue an appropriate dispositive order.

F. Form of Final Review. The Executive Committee shall issue its decision in writing.

Attachment: Sample Petition for Review to the Executive Committee of the Judicial Council of the Ninth Circuit from Presiding Judicial Officer’s Decision [see next page for Form 1]

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Name of Petitioning Party or Counsel Address Telephone # Fax # Email

Name of Court in Which Presiding Judicial Officer’s Final Decision Was Issued

A.B., Petitioner Petition for Review of Decision in (or Summary Dismissal of Employment v. Dispute Resolution Policy Complaint

C.D., Respondent

Notice is hereby given that (name of Party petitioning for review),

(Petitioner) in the above named case, hereby Petition for Review to the Executive Committee of the Judicial Council of the Ninth Circuit from the final decision (or summary dismissal of the Complaint) by Judge (name of Presiding Judicial Officer) entered in this matter action on the ___________ day of _____, (20).

Attached to this Petition is a copy of the Presiding Judicial Officer’s Final

Decision (or summary dismissal of the Complaint).

The basis(es) of this Petition for Review is (reason why review is

requested—this basis(es) may be included as an attachment).

Submitted on this ___ day of ___________, (20). (s) ____________________________ (Representing name of Party)

Approved by the Ninth Circuit Judicial Council on ________________________.

INFORMAL ADVICE To request advice about a workplace concern, contact your Employment Dispute Resolution (EDR) coordinator, Circuit Director of Workplace Relations, or the Office of Judicial Integrity. They can provide you with advice and guidance ASSISTED RESOLUTION on how to address the issue including: Contact an EDR Coordinator or Circuit • Your rights under the EDR Policy Director of Workplace Relations to request Assisted Resolution. This interactive, • Advice on handling discriminatory, flexible process may include: harassing, or abusive conduct • Discussions with the source of the • Options for addressing the conduct conduct • Preliminary investigation, including interviewing witnesses • Resolving the matter by agreement

FORMAL COMPLAINT Contact an EDR coordinator to file a formal complaint. The Complaint must be filed within 180 days of the alleged violation or the discovery of the violation. This formal process includes: • Appointment of Presiding Judicial Officer Contact Information: • An investigation and/or hearing if appropriate Office of Workplace Relations • Written decision (415) 355-8914 • Appeal rights workplacedirector@ce9.uscourts.gov

National Office of Judicial Integrity

Confidentiality Jill Langley, Judicial Integrity Officer All options for resolution are intended to respect 202-502-1604 privacy of all involved to the greatest extent AO_OJI@ao.uscourts.gov possible, and to protect the fairness and thoroughness of the process by which allegations of wrongful conduct are initiated, investigated, and ultimately resolved.

Employees of the Federal Judiciary are protected by the employment rights listed below, as described in Guide to Judiciary Policy, Vol. 12, Ch. 2. Employees have options for resolution, including Informal Advice, Assisted Resolution, and filing a Formal Complaint. Formal Complaints must be filed within 180 days of when the Employee knew or should have known of the alleged violation. More information, including a list of court EDR Coordinators, can be found on JNet. Employees may confidentially report workplace discrimination, harassment, abusive behavior, or retaliation to an EDR Coordinator, Office of Workplace Relations, or the Judicial Integrity Officer, Jill B. Langley, at 202-502-1604.

Protection from Unlawful Family and Medical Leave Hazard-Free Workspaces Discrimination Provides rights and protections for Requires employing offices to comply Prohibits discrimination in personnel employees needing leave for with occupational safety and health actions based on race, color, sex, specified family and medical reasons. standards, and provide workplaces gender, gender identity, gender free of recognized hazards. expression, marital status, Protection for Veterans andpregnancy, parenthood, sexual Members of the Uniformed Polygraph Testing Prohibitionorientation, religion, creed, Services Restricts the use and the results ofancestry, national origin, citizenship, genetic information, age (40+), Protects employees performing polygraph testing. disability, service in the uniformed service in the uniformed services forces. from discrimination and provides certain benefits and reemployment rights. Protection from Harassment Prohibits sexual harassment, discriminatory harassment, and Notification of Office Closings abusive conduct. and Mass Layoffs Under certain circumstances, Protection for Exercising requires that employees be notified of Workplace Rights an office closing or of a mass layoff at least 60 days in advance of the event.Prohibits intimidation, retaliation, or discrimination against employees who exercise their employment rights or report or oppose wrongful conduct, including whistleblower protection.

These rights are fully explained in Guide to Judiciary Policy, Vol. 12, Ch. 2.

Effective date: October 22, 2020

File a Complaint File a complaint with an EDR coordinator within 180 days of the conduct (or discovery of the conduct). Gather Information The Presiding Judicial Officer decides what investigation and discovery are needed and if written arguments are needed. Hearing The Presiding Judicial Officer determines if a hearing is needed. DECISION

RIGHTS

• An impartial investigation and/or hearing, if appropriate. Appeal • Both parties may use a representative or attorney (at own expense). • Both parties may present witnesses and examine adverse witnesses. • A prompt written decision by a Presiding Judicial Officer. Parties have the right to appeal to the circuit judicial council within 30 days of a decision. Effective date: October 22, 2020

NINTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY (EEO) POLICY APPENDIX 6

I. Statement of Policy

Each Court and court unit will promote equal employment opportunity to all persons or classes of persons regardless of their race, sex, gender, gender identity, gender expression, marital status, pregnancy, sexual orientation, religion, creed, ancestry, national origin, citizenship, genetic information, age,12 disability, or service in the uniformed forces, in addition to any other status or characteristic protected under applicable federal law. All facets of employment such as recruitment, hiring, work assignments, compensation, benefits, education, disciplinary actions, terminations, training, promotion, advancement, and supervision are included in the EEO Policy. Each Unit Executive will promote a Court or office environment free of discrimination and harassment. Along with Employees (as defined in the EDR Policy), applicants for employment and former employees are covered by this EEO Policy. All Complaints under this EEO Policy shall be covered by the procedures in § IV.C.3. of the Ninth Circuit Employment Dispute Resolution Policy.

Unit Executives must ensure that appropriate vacancies (with the exception of chambers law clerk and judicial assistant vacancies) are publicly announced to attract candidates who represent the make-up of persons available in the relevant job market and that all hiring and other employment decisions are based solely on job-related factors. Job postings may be published solely to internal staff in certain circumstances, such as budgetary constraints; career ladder promotions; reassignments; and accretion of duties. Reasonable efforts should be made to see that the skills, abilities, and potential of each Employee are identified and developed, and that all Employees are given equal opportunities for promotions by being offered, when the work of the Court permits, and within the limits of available resources, cross-training, reassignments, special assignments, and outside job-related training.

II. Annual Report

Unit Executives must submit an annual report to the Chief Circuit Judge. The report will describe any significant achievements in providing equal employment opportunities, identify areas where improvements are needed, and explain factors inhibiting achievement of equal employment opportunity objectives. The report will be the same report as that submitted annually to the Administrative Office of the United States Courts.

12 The age discrimination provision does not apply to hiring, retirement, or separation of probation and pretrial services officers under 5 U.S.C. chapters 83 and 84. 1

III. Objectives

When the Unit Executive deems it necessary or desirable, the Unit Executive will develop annual objectives that reflect improvements needed in recruitment, hiring, promotions, and advancement, and will prepare a specific plan (report) explaining how those objectives will be achieved.

IV. Distribution and Public Notice

Copies of this EEO Policy shall be made available to all Employees and furnished, upon request, to applicants for positions of employment.

APPEAL

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