More than 25 years after the dramatic showdown between Clarence Thomas and Anita Hill, the Senate Judiciary Committee has once again managed to mishandle a high-stakes confrontation between a male judicial nominee and his female accusers.
The infamous standoff between Thomas and Hill ignited a national discussion about sexual harassment in the workplace and opened a floodgate of sexual harassment cases. Over the last quarter century, courts and administrative agencies across the country have developed guidelines, procedures and standards for handling these cases in hopes of discovering truth, eliminating harassment in the workplace, and achieving justice.
Unfortunately, the Senate Judiciary Committee’s handling of Judge Brett Kavanaugh’s nomination largely ignored these lessons. It was a bipartisan failing. Senators of both parties — including Utah’s Republican senators — have taken actions that compromised the integrity of the confirmation process.
The Senate Judiciary Committee’s approach deviated from the legal requirements that apply to private employers in this country in at least four important ways.
First, the Senate failed to act promptly on the initial report against Kavanaugh. Private employers are required by law to immediately investigate allegations of sexual harassment. If an employee comes forward to a supervisor with an allegation and asks for inaction or anonymity, no supervisor can promise either. That is because the supervisor has a responsibility to the reporting employee, other employees, the employer, and even the public to take appropriate action in order to remedy discrimination in the workplace.
So when Dr. Christine Blasey Ford came forward to her congressional representatives, Sen. Dianne Feinstein made an ill-advised promise not to identify her or pursue her allegations. Whether motivated by a misplaced sense of honor to protect Ford or a partisan desire to disrupt the confirmation process at the last possible moment, Feinstein’s pledge meant that Ford’s allegations against Kavanaugh were not immediately investigated.
Second, President Trump and the Republican-led Senate Judiciary Committee refused to authorize an independent investigation of the growing body of allegations against Kavanaugh. Under Title VII of the 1964 Civil Rights Act, employers have a duty to promptly and thoroughly investigate alleged harassment. The mandate from the U.S. Equal Employment Opportunity Commission is unequivocal: “An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment.”
The Second Circuit Court of Appeals has explained that “an employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.”
During Justice Thomas’ confirmation process, the Senate requested and President Bush directed the FBI to conduct a “full, thorough, and expeditious investigation” of Hill’s allegations. Utah Sen. Orrin Hatch agreed with the propriety of that investigation, saying that it “was the very right thing to do.” Yet this time Hatch and his Republican colleagues opposed a FBI investigation.
Kavanaugh claimed to want a “fair process” and strongly professed his innocence, but he repeatedly declined invitations to request an impartial FBI investigation that might help clear his name.
Third, the absence of a complete set of facts did not stop senators from both sides of the aisle from announcing their verdicts even before Thursday’s hearing. Investigations of alleged harassment in the workplace must be neutral and objective, but members of the Senate Judiciary Committee jumped to partisan conclusions.
Fourth, the Senate Judiciary Committee on Thursday conducted a show trial rather than a genuine inquiry into the allegations against Kavanaugh. It is axiomatic that all witnesses with potentially relevant information must be interviewed during a competent investigation of workplace discrimination.
In contrast, the Republican leadership of the Judiciary Committee refused to subpoena Mark Judge, the only reported witness to the alleged incident between Kavanaugh and Ford. The GOP also refused to call any other witnesses on Thursday. Instead, Republicans orchestrated a “she-said, he-said” spectacle. Thursday’s hearing was designed as political theater rather than for seeking out the truth.
Courts across the country have held employers liable for negligent, biased, or incomplete investigations of alleged misconduct. An employer that favors an accused harasser and fails to promptly, impartially and appropriately investigate alleged harassment exposes itself to significant financial liability.
The cost of the Senate Judiciary Committee’s failures during Kavanaugh’s nomination may prove to be far higher. Nothing less than the integrity of the Supreme Court has been at stake. Regardless of whether Kavanaugh is ultimately confirmed, the Judiciary Committee’s disappointing performance will likely haunt Kavanaugh, victims of assault, the Supreme Court, and the country for decades.
Paul C. Burke
Liesel B. Stevens
Paul C. Burke and Liesel B. Stevens together have more than thirty years’ experience practicing labor and employment law in Utah.