WHAT WOULD HAVE HAP­PENED HAD KA­VANAUGH BEEN A CANA­DIAN CEO?

Take al­le­ga­tions very se­ri­ously but never as­sume they’re true, Howard Le­vitt writes.

Calgary Herald - - FINANCIAL POST - Howard Le­vitt is se­nior part­ner of Le­vitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight prov­inces. The most re­cent of his six books is War Sto­ries from the Work­place: Col­umns by Howard Le­vitt. Twit­ter.com/HowardLe­vit­tLaw

Do you re­mem­ber Ro­man Polan­ski? The Hol­ly­wood di­rec­tor had sex with a 13-year-old girl in 1977 af­ter drug­ging her with Cham­pagne and Quaaludes. He pleaded guilty and, while on bail, fled to Europe and has not been able to re­turn. Whoopi Gold­berg de­fended him, ar­gu­ing that what he did was not re­ally “rape rape.”

But when Jus­tice Brett Ka­vanaugh, with­out a shred of pro­ba­tive ev­i­dence, was ac­cused of sex­ual as­sault from 36 years ear­lier, Gold­berg leaped to at­tack. Even more egre­gious was the con­dem­na­tion of Ka­vanaugh by her show’s co-host, Joy Be­har. Be­har had de­fended Al Franken for his sex­ual as­saults of eight sep­a­rate women. She noted that those as­saults had oc­curred be­fore he was a sen­a­tor and called on the coun­try to “move on” and put this great sen­a­tor back in of­fice. Quite a jux­ta­po­si­tion.

Matt Da­mon was quick to in­gra­ti­ate him­self with the #MeToo move­ment by at­tack­ing Ka­vanaugh. He was likely seek­ing ex­pi­a­tion for his pre­vi­ous much bal­ly­hooed trans­gres­sion of sug­gest­ing that there is a spec­trum of sex­ual im­pro­pri­ety and that rape should not be con­flated with a pat on the butt. Al­though legally cor­rect, his erst­while friends would have none of it.

I have never un­der­stood why any­one cares about the po­lit­i­cal views of Hol­ly­wood ac­tors, judg­ment and grav­i­tas hardly be­ing a defin­ing fea­ture of their jobs.

As an em­ploy­ment lawyer, I found the Ka­vanaugh de­bate riv­et­ing.

Journalist and lawyer Paula Todd wrote a book, Ex­treme Mean: End­ing Cy­ber­abuse at School, Work and Home, in which she de­scribed how, over the past sev­eral years, those tak­ing un­pop­u­lar po­si­tions, usu­ally against the forces of po­lit­i­cal cor­rect­ness, have been mobbed on­line by anony­mous hordes. The Ka­vanagh de­bate — of him, his fam­ily and Repub­li­can politi­cians — saw the same mob­bing, this time by iden­ti­fied mem­bers of Hol­ly­wood, the me­dia and the Demo­cratic Party.

In­deed — other than TVO’s Steve Paikin, who had the good for­tune of hav­ing an ac­cuser who was gen­er­ally deemed not cred­i­ble — those ac­cused have gen­er­ally had a very rough ride from the pub­lic.

I ac­cept that if Ka­vanaugh had com­mit­ted the crim­i­nal of­fence of sex­ual as­sault, even in high school, he should not be on the U.S. Supreme Court.

But what was the ev­i­dence? All three peo­ple who Ford says were present, in­clud­ing her close friend, deny it. When flee­ing the house, she did not warn her friend that she was in po­ten­tial dan­ger. Nor, ac­cord­ing to her, did her friend ever ask why she sud­denly left. Her cred­i­bil­ity was sus­pect. She told the com­mit­tee she was afraid to fly so as to de­lay the hear­ing; a clear lie since she flies fre­quently, in­clud­ing for plea­sure.

Her story as to what she heard from the bath­room changed. The year of the as­sault kept chang­ing as well as its lo­ca­tion. While pur­port­ing clear rec­ol­lec­tion of some events, such as hav­ing had only one beer that night, she could not re­call how she got there, how she got home or how she ar­ranged a ride af­ter flee­ing the home at a time be­fore cell­phones ex­isted.

She re­fused to pro­vide her pur­ported ther­apy notes of the in­ci­dent to the Se­nate com­mit­tee. She claimed she wished her story to re­main con­fi­den­tial but dis­closed Ka­vanaugh’s iden­tity to the per­son op­er­at­ing the tip line at the Wash­ing­ton Post.

I knew Ka­vanaugh would be con­firmed as soon as the at­tacks moved from sex­ual as­sault to his hav­ing a “non-ju­di­cial tem­per­a­ment.” I won­dered how many peo­ple would re­act “ju­di­cially” when ac­cused of rape af­ter a life­time of pro­bity and sup­port for women. Any se­ri­ous in­quiry of his ju­di­cial tem­per­a­ment would fo­cus on his ir­re­proach­able tem­per­a­ment as a judge. In his case, there is a 12-year record.

The Democrats over­played their hand in try­ing to boot­strap the weak ev­i­dence of Ford with the lu­di­crous ev­i­dence of Deb­o­rah Ramirez and Julie Swet­nick. With each new al­le­ga­tion more im­prob­a­ble than the last, the left lost any sem­blance of cred­i­bil­ity and, re­al­iz­ing that, are now turn­ing on Swet­nick’s pub­lic­ityad­dicted lawyer Michael Ave­natti.

As Bre­it­bart’s John Nolte wrote, “Democrats and the me­dia were not even in­ter­ested in con­vinc­ing us Ka­vanaugh had done some­thing wrong. Their only goal was to make him so per­son­ally toxic, his guilt or in­no­cence no longer mat­tered.”

If some­one with so many holes in their story made an ac­cu­sa­tion against a Cana­dian ex­ec­u­tive, one would hope that it would be given short shrift. But it’s hard to fight the tide.

Many are ask­ing, if an es­tab­lish­ment white fe­male pro­fes­sor is not be­lieved in al­leg­ing sex­ual as­sault, what does that mean for women of lesser promi­nence or means? It is an in­ter­est­ing ques­tion but the wrong one.

If some­one in Canada was be­ing hired as a CEO and such an al­le­ga­tion from high school came to light, it should, and likely would, be taken se­ri­ously. There are not the same mo­ti­va­tions to de­prive a wor­thy can­di­date of a cor­po­rate po­si­tion as the Democrats and rad­i­cal left had to pre­vent Ka­vanaugh from get­ting on to the U.S. Supreme Court. There sim­ply would not be as much at stake and there­fore, less rea­son to be cyn­i­cal. But the mo­tive of ac­cusers al­ways must be an­a­lyzed.

Whether it is a can­di­date for a po­si­tion or an in­cum­bent, any his­tory of sex­ual as­sault is now a dis­qual­i­fier. Our prime min­is­ter fa­mously said that all women should be be­lieved. That is, of course, un­til he was him­self ac­cused of sex­ual im­pro­pri­ety from a for­mer journalist who had been cov­er­ing him.

As Christie Blatch­ford has of­ten writ­ten, women are as ca­pa­ble of ly­ing as are men. I act for com­pa­nies, ac­cusers and ac­cused. All are en­ti­tled to an ob­jec­tive process and all have dif­fer­ent in­ter­ests.

There is no le­gal prin­ci­ple of due process in Cana­dian work­places. If an al­le­ga­tion is made that re­sults in a dis­missal and, as a re­sult of a law­suit be­ing found to be false, the em­ployee will re­cover wrong­ful dis­missal dam­ages and, if the em­ployee was treated un­fairly, there could be ad­di­tional dam­ages.

The courts are in­creas­ingly re­quir­ing that, be­fore dis­miss­ing an em­ployee, the al­le­ga­tions should be put to him or her and the rel­e­vant wit­nesses spo­ken to. Full-blown in­ves­ti­ga­tions are not re­quired.

There are le­gal risks all around. If an al­le­ga­tion is made of sex­ual ha­rass­ment, and the ac­cused is not fired and must con­tinue to work with the ac­cuser, they might be able to re­sign and sue for con­struc­tive dis­missal. It is there­fore of­ten in the com­pany’s in­ter­est to con­duct an in­ves­ti­ga­tion. In most cases, it should be done by hu­man re­sources, which best knows those in­volved.

But if the ac­cused is more se­nior or the is­sues par­tic­u­larly com­plex, a third party should in­ves­ti­gate.

The per­sons most qual­i­fied to con­duct the type of ob­jec­tive anal­y­sis of ha­rass­ment al­le­ga­tions in a man­ner that keeps the tem­per­a­ture in check, and whose views have cred­i­bil­ity with all stake­hold­ers, are re­tired judges, who are in­creas­ingly be­ing con­sid­ered for work­place in­ves­ti­ga­tions.

PABLO MARTINEZ/AP

A po­lice of­fi­cer guards the front steps of the U.S. Supreme Court in Wash­ing­ton while ac­tivists con­duct a protest on Brett Ka­vanaugh’s first day on the court af­ter a con­tro­ver­sial nom­i­na­tion bat­tle. Com­pa­nies must en­sure al­le­ga­tions against their ex­ec­u­tives are han­dled prop­erly.

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