WHAT WOULD HAVE HAPPENED HAD KAVANAUGH BEEN A CANADIAN CEO?
Take allegations very seriously but never assume they’re true, Howard Levitt writes.
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 publicity addicted 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. 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
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.