#MeToo Meets SCOTUS: Lessons From the Kavanaugh Confirmation

November 6, 2018

The nation is sharply divided over the recent hearings and confirmation of the newest U.S. Supreme Court justice, Brett Kavanaugh. At the heart of his confirmation process were claims of inappropriate sexual conduct by Kavanaugh, which have gained heightened importance as part of the #MeToo movement. Because a similar scenario is likely to occur in private-sector workplaces—both as part of the interview process or when complaints are made against a current employee—it’s important to understand what was done right and wrong in handling the Kavanaugh allegations. This article does not address whether Kavanaugh should have been confirmed.

Presumption of Innocence

The presumption of innocence is a doctrine that applies only in criminal proceedings. The basic idea is that U.S. citizens are innocent until proven guilty. The presumption of innocence had zero applicability in the Kavanaugh hearings.

In the employment setting, there may be a limited presumption of innocence with regard to pending criminal charges, depending on whether a state law applies. In Wisconsin, an employer may refuse to hire an applicant or suspend an employee without pay in response to a pending criminal charge that substantially relates to the circumstances of the job at issue. The presumption of innocence means the employer may only defer hiring an otherwise qualified applicant or suspend (but not terminate) an employee without pay pending the outcome of the criminal charge. If there is no conviction, the employer would need to hire the applicant (if there is still an open position) or permit the employee to return to work.

If the situation doesn’t involve a pending criminal charge or if there’s no state law addressing the reliance on a pending criminal charge, then there’s no need for an employer to apply any presumption of innocence. However, like all workplace investigations, an investigation under these circumstances should be performed in a fair and objective manner to avoid poor decisions and prevent claims of illegal retaliation or discrimination.

Full, Fair, and Objective Investigation

If an otherwise qualified applicant or employee is accused of engaging in serious misconduct, you should conduct a full, fair, and objective investigation. The amount of time spent on the investigation should depend in part on the severity of the allegations.

For example, during the recent confirmation process, there was an allegation that Kavanaugh acted inappropriately in the presence of a woman while they were students at Yale. He denied the incident happened. The FBI interviewed the woman but failed to interview any other witnesses to the alleged incident or anyone who heard about it contemporaneously. As a result, it remained a he-said/ she-said allegation when further inquiry might have uncovered additional evidence to support either Kavanaugh’s denial or the accuser’s version of the incident.

If the situation involves an employer with no agenda, the employer should continue interviewing potential witnesses to determine whether the incident is more than a true he-said/ she-said scenario. Also, in light of the allegations by Dr. Christine Blasey Ford, the former Yale student’s allegations shouldn’t have been looked at in a vacuum. Two women independently alleged that Kavanaugh engaged in inappropriate behavior.

What to Do About He-Said/She-Said Allegations

Even when there is a full, fair, and objective investigation, the end result may still be a he-said/she-said situation. For example, even if Ford had reported the alleged assault on the night it happened or shortly thereafter, other than removing the doubt about whether Kavanaugh was physically present at a party, it likely still would have been a he-said/she-said situation if he denied her allegations. He might have stated that he didn’t act inappropriately, and Ford would have stated otherwise. (His friend Mark Judge may not have been able to recall anything.)

Employers generally have wide discretion in true he-said/she-said scenarios. As long as you don’t act inconsistently or in a way that could suggest you have some ulterior motive that might be impermissibly retaliatory or discriminatory, you can make a reasoned decision and believe one side or the other, or both.

For example, in the context of the recent hearing, there was no reason that people couldn’t have believed Kavanaugh, Ford, or both. And even if senators believed Ford, they could take the position that having a drinking problem at 17 doesn’t disqualify a 53-year-old who appears to have had no issues with alcohol during his time as a sitting federal judge. Alternatively, they could take the position that while Kavanaugh might be completely innocent, the risk that he was guilty was too great given the need to preserve the integrity of the Supreme Court, especially since there’s no shortage of other qualified candidates for the same position.

Successful Investigation Techniques

Many people cannot be truthful unless there’s no way around the truth. That’s often the situation when someone has engaged in sexual harassment or misconduct. There’s a natural tendency for people to avoid admitting to boorish or criminal behavior. One way to get an employee to be more forthright is to let him know that if he’s honest, there’s a possibility that he might not be terminated. On the other hand, if he is found to have been dishonest, then he may be terminated.

That tactic may work in situations where the underlying allegations of sexual harassment aren’t severe or pervasive enough to warrant terminating the guilty party. Or you could suggest that an employee be open and honest even in the face of more severe allegations because you might choose a termination option that would allow him to move on with fewer repercussions (such as permitting him to resign or receive severance).

Bottom Line

Employers are in a new world. Women and men who have long remained silent about sexual harassment and sexual assault will continue to come forward as they hear other brave victims speak publicly. That may lead to applicants or current employees being accused of decades-old sexual misconduct. Such allegations can be difficult to prove even if they’re reported immediately, let alone years later.

But the difficulty of providing proof doesn’t mean allegations of sexual harassment or misconduct should be brushed under the rug. Nor does it mean that the accused should always be assumed to be guilty. Rather, each situation must be handled on a case-by-case basis and fairly and objectively investigated. The severity of the allegations should be considered along with the time that has passed. There will be times when it’s possible to presume that an “innocent” employee is guilty. But the possibility of a mistaken assumption of guilt must be carefully weighed against the risk that the employee is in fact guilty as charged.

This article, slightly modified to note recent updates, was featured in the October 2018 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.