The Kavanaugh hearings have brought up an interesting point. What are the legal obligations of a government employer, when it comes to handling allegations against a prospective employee?

I would like to use a different example. Instead of a Supreme Court nomination, suppose that a person is applying to a teaching position in a public school, and someone claims that she had inappropriate contact with a minor.

What kind of due process is the school required to abide by in approving or rejecting the candidate? Is a mere allegation enough to warrant refusal to hire, or is there legal precedent against that?

  • For most purposes, a judge is not an employee of the US government, but an officer. It should also be noted that Kavanaugh is not a prospective officer of the US government, because he is already a federal judge. – phoog Oct 1 '18 at 16:21

Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector.

In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual.

However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk.

Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements.

For more on this, check this legal blog.

There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time.

It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired..

  • Great answer. Would this condition still apply for prospective employees, say if a teacher applies to be Vice Principal, for instance, can her application be denied based on a mere accusation? – Daniel Goldman Oct 1 '18 at 15:59
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    @DanielGoldman: Probably not. Say that the teacher was up for a promotion when a child used this false accusation. This is probably going to delay the promotion until the accusation can be seen as genuine cause for concern or not and then tossed. Kudos for suggesting the promotion aspect, which is how I'm inclined to see the bigger issue that inspired this question. – hszmv Oct 1 '18 at 19:44
  • Yes, a Kalkines Statement is used in cases like "We are willing to overlook that you were placing sports bets while on duty, we just want to know who the bookie is so we can bust him". – Robert Columbia Dec 19 '18 at 15:18

There may be specific statutes surrounding hiring. In Washington (most states have similar laws), RCW 28A.400.301 requires investigation of past sexual misconduct. A candidate must sign an authorizing statement whereby current and previous employers are asked (and required, within the state, to disclose such conduct); RCW 28A.400.303 also mandates background checks carried out by the state patrol and the FBI. The law does not mandate a particular outcome given negative findings of the investigation, and it does not limit the kind of information that can be used, e.g. it does not limit considering information only pertaining to convictions, or arrests. On the other hand, these laws do not authorize the employer to open-endedly sees any source of allegation of sexual misconduct, instead it either comes from employer records or criminal records systems. Credible allegations of non-criminal behavior may preclude a person obtaining a security clearance, which is a bar to employment for many government jobs.

This ABA document on individual rights and public sector employment reviews applicable law on a number of fronts. There is a difference between keeping a public sector job, and getting a public sector job. In general, the courts are disinclined to recognize due process rights in the workplace especially when it comes to hiring decisions. Once you are hired, you may have a property interest in a job, but at the interviewing stage, you don't. Anti-discrimination laws of course limit the kind of pre-employment filtering that is legal (for example, race is generally not an allowed employment qualification).

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