As published by Washington Business Journal
By Amy Oppenheimer and Keith Rohman, Contributing Writers
January 17, 2020
Calling something an “investigation” does not make it so. Even today, questions still remain about the FBI’s investigation of sexual assault allegations against Supreme Court Justice Brett Kavanaugh, for instance. From our perspective as professional workplace investigators, the FBI inquiry was not conducted in a manner consistent with generally accepted standards and it was curtailed in ways which impacted its reliability and its findings.
As issues around #MeToo continue to arise, professional workplace investigators view with dismay news about high-profile investigations gone awry, as the Kavanaugh investigation did. There are industry standards for conducting an investigation of this sort, standards that were not followed by the FBI. We know this because we are past presidents of an organization for workplace investigators – the Association of Workplace Investigators (AWI) – an international group of over 1,200 workplace investigators. AWI has set forth Guiding Principles for attorneys, human resource professionals, private investigators, and others that do this investigative work.
These standards recognize that the scope determines the playing field for the investigation — workplace investigators know that those who control the scope can often control the investigation. Interviewing witnesses proffered by only one side of disputed facts can skew the results. Placing unreasonable time frames on an investigation puts inherent limitations on the fact finding. Interviews and credibility assessments of the parties, if they are available, is considered a key element to these investigations. Having the fact-finding overseen by those who are not committed to an unbiased investigation creates even more difficulties.
The principles of a fair, impartial and thorough investigation require the investigator be given the authority to gather any information pertinent to the scope, including evidence that would shed light on credibility, such as previous similar acts, motives to lie, inconsistent statements and information that a party has not been truthful in this or other circumstances. The investigator should also be given a reasonable time frame to conduct the investigation. A biased investigation, on the other hand, either does not gather sufficient evidence or tends to gather and interpret evidence in a manner consistent with the desired outcome rather than what a logical analysis would point to.
In the wake of #MeToo, the public has become particularly mistrustful of investigations of allegations of harassment and sexual misconduct lodged against powerful men. Countless human resource professionals, attorneys and private investigators conduct such investigations and strive to deliver fairness. In perhaps the most high-profile recent case involving claims of sexual harassment, the FBI’s failure to conduct an effective impartial investigation in the Kavanaugh matter is profoundly disappointing to those involved in this work on a day-to-day basis, especially as there is a body of practice and law which can provide guidance in investigations of this sort.
In the Kavanaugh investigation, the Senate Judiciary Committee had nine witnesses, all of whom were provided by the Committee’s Republican majority. The FBI did not interview 50 other potential witnesses. More than 20 individuals who knew either Kavanaugh or one of his accusers, Deborah Ramirez, were never interviewed despite their affirmative efforts to contact the FBI. The FBI investigation lasted less than a week. And, perhaps the most significant flaw, the FBI did not interview the two primary parties – Judge Kavanaugh or his accuser, Christine Blasey Ford.
The FBI investigation was further comprised by its focus on gathering information, but not making important credibility determinations about that information. Credibility assessments are often crucial in “he said, she said” cases like this, and are standard practice in workplace investigations of sexual harassment. The political explanations in the Kavanaugh case aside, these sorts of disputes are decided every day by judges and juries. Standards and practices can effectively be applied in these cases.
When politics are involved, as they were here, it is difficult to set bias aside. We all want to believe in the individual who represents our party or our point of view. But allegations such as these must be reviewed objectively, without concern about the outcome. We cannot know what an effective unbiased investigation would have found, and now will rely on new information as it develops. This is the opposite of what a truly fair and effective investigation should be.
Amy Oppenheimer is the founder and past president of the Association of Workplace Investigators and has a law practice focused on conducting workplace investigations, training and mediation. Keith Rohman, an AWI past president, is president of Public Interest Investigations Inc., a private investigations firm.
Find article here on Washington Business Journal.