Why the Kavanaugh Hearing Was Important for Workplace Investigators

The end of last week was alternatingly riveting and horrifying if you were following the unfolding events in the Senate Judiciary Committee hearing on the confirmation of Judge Brett Kavanaugh.  From the point of view of an impartial investigator, so many things were done wrong in that process that it’s hard to know where to start.  But ten things jumped out at me for today’s blog and I think they’re worth having a conversation about.

This isn’t a workplace, so stop talking about Title VII.  We’ve seen a lot of commentary from lawyers and others talking about how this “workplace investigation” ran amuck… lots of discussion about the duties employers owe their employees to investigate claims of harassment.  This is not a workplace situation.  This was an alleged criminal act.  There are lessons here for those of us who do sexual harassment investigations but applying Title VII to a criminal context is not one of them.

Gender stereotypes affect the way people perceive and respond to sexual misconduct allegations.  We have come a long way as a society in terms of applying stereotypes to different groups, but watching the hearings unfold last week it’s clear we still have a ways to go.   Depending on which side of the divide you’re on, women who report sexual violence or harassment are viewed with skepticism and judgment and are forced to defend their own sexual character, or they are heroines who are finally speaking up years of silence.  White men from privileged backgrounds or in positions of power are often seen as entitled, arrogant “frat boys” who are inclined towards harassing behavior, or they are vigorously defended as evidence of a social movement gone too far.  As impartial investigators, it’s important to push aside any stereotypes and biases and focus on the facts.

Human memory does not work like an audio and video recorder, yet the misperception remains that witnesses – on both sides –  should have digital recall.  Dr. Blasey Ford’s testimony was (and is being) attacked by pundits because she did not have encyclopedic recall of details.  A simple Google search of “memory” and “trauma” is enlightening.  As a New York Times piece pointed out last week:[1]

From the dizzying stream of incoming perceptions, the brain stores, or “encodes,” the sights, sounds, sensations and emotions that it deems important or novel. The quality of preservation may depend not only on the intensity of emotion in the moment an event occurs but on the mechanics of how that event is recorded and retrieved — in some cases, decades later. “Recollection is always a reconstruction, to some extent — it’s not a videotape that preserves every detail,” said Richard J. McNally, a professor of psychology at Harvard University and the author of “Remembering Trauma.” “The details are often filled in later, or dismissed, and guessing may become part of the memory.”

For a trauma victim, this encoding combines mortal fear and heart-racing panic with crystalline fragments of detail: the make of the gun, the color of the attacker’s eyes. The emotion is so strong that the fragments can become untethered from time and place. They may persist in memory even as other relevant details—the exact date, the conversation just before the attack, who else was in the room — fall out of reach.

“In situations of high arousal, the brain is flooded with hormones that strengthen those things you’re paying attention to,” said Daniela Schiller, a neuroscientist at the Icahn School of Medicine at Mount Sinai. “But other details are less accessible.” Every time the mind summons the encoded experience, it can add details, subtract others and even alter the tone and point of the story. That reassembly, in turn, is freshly stored again, so that the next time it comes to mind it contains those edits. Using memory changes memory, as cognitive scientists say. For a victim, often the only stable elements are emotions and the tunnel-vision details: the dress she wore, the hand over her mouth.

This process also works in the reverse when it comes to allegations of behavior that a person, 30 years later, cannot fathom that they committed:

Conversely, experts suggest, there are scenarios in which someone could have committed an assault and yet also have almost no memory of it. If an assailant attaches little significance to an assault—for instance, if he doesn’t consider it an assault—his brain may only weakly encode details of the encounter. . . .  The human mind works to preserve a sense of moral integrity. That process is a self-serving one, allowing us to function day-to-day, tweaking our personal narrative to support who we are or want to be. Men who commit sexual assault rarely think of themselves as assailants, Dr. Hopper said: “We tend to go with the abstract descriptions of events that make us feel less bad about ourselves, and less ashamed.”

What this strongly suggests is that in a case where the stakes are this high, a trained expert should have been used to gather this information and appropriately assess its reliability.  Certainly, none of the Senators on the Committee qualify.

Emotion alone does not dictate honesty.  A good investigator takes note where a witness appears to be exhibiting real emotion.  A heartfelt or tearful denial is never irrelevant to an impartial investigator.  However, it is never the end of the inquiry.  It is important to test the statements, come back to them, ask them different ways, and assess the responses the witness provides.  A prepared statement is never as persuasive as a witness’s unscripted responses to questions.  This is because…

A person’s response patterns matter.  Contrary to the myths that can surround investigations, a witness’s physical demeanor is not nearly as important as the words they use, the way they use them and their answer patterns in response to questions.  People generally do not like to lie, and as a result they will often engage in evasive answering patterns when they are in uncomfortable territory vis-à-vis the truth.  A careful dissection of the testimony that was provided last week would yield some clues on credibility.

Evidence matters.  It is very important that Judge Kavanaugh kept contemporaneous records of what he was doing during the summer in question.  It is equally important for the committee to gather and consider all of the evidence – including data about the house in question (if they can locate it) and Mr. Judge’s work schedule (to help narrow down on the date); evidence from other witnesses, including Mr. Judge, Dr. Blasey Ford’s therapist and other outcry witnesses; and evidence as to the authenticity of Judge Kavanaugh’s records.  While witness testimony is always in the spotlight, for an investigator it is not the only (or sometimes even the best) evidence.  Thorough investigations should consider all the data, including documents and witness testimony.

Impartial fact finders are essential.  Impartial and adequate investigations require investigators without an interest in the outcome.  Washington, D.C. is by its nature political and partisan, which is precisely why these allegations should be investigated by professionals without a dog in the fight.  No matter which “side” you are on, I suspect that no one was happy to see politicians scoring points at the expense of these two individuals.  Both Dr. Blasey Ford and Judge Kavanaugh deserve to have their perspectives gathered and assessed by impartial experts, not by hired guns or politicians with power but no expertise – a dangerous combination.

These events can destroy lives.  It cannot be overemphasized that these situations involve real people, with real lives and families, whose reputations, livelihoods and emotional well-being are at stake.  This is true in workplace allegations as well – the process of investigating workplace misconduct can profoundly affect people in foundational ways. It is serious business and should be treated that way when allegations are raised.

Fear of reporting prevents the vast majority of these situations from ever coming to light.  In our industry, we all know the stats.  Only about 30% of people who experience harassment ever tell a manager, supervisor or union representative, and only 6% to 13% actually file a formal complaint. “Fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”[2]  Overwhelmingly, witnesses say they stay quiet because they are afraid of retaliation.  And their fears are well founded: an EEOC task force on harassment reported that 75% of people who reported harassment at work were retaliated against as a result.[3]  By taking harassment allegations seriously and performing impartial investigations, it increases confidence in the system and makes it less likely that these problems will continue to occur under the radar and go unreported.

These situations must be handled properly straight out of the gate.  You only get one crack at the egg.  The key is assessing quickly how serious the situation is and mobilizing expertise at the beginning to do the investigation – however high-profile or difficult it is.  The best workplace investigations engage professional impartial investigators right away (as soon as an allegation is made), employ experts to assist in proper assessment of memory recall, are confidential, and devote the time and resources needed to gather all of the evidence.

We’ll be back next week with our take on what the FBI investigation uncover.

[1] Benedict Carey and Jan Hoffmann, They Say Sexual Assault, Kavanaugh Says It Never Happened: Sifting Truth From Memory, How trauma and time alter the way we recollect significant events. New York Times (Sept. 25, 2018).

[2] Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee, 555 U.S. 271, 279 (2009).

[3] Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace (June 2016).