ABSTRACT
The United States Supreme Court has affirmed an employer’s “vicarious liability” for failing to take reasonable care to prevent or correct promptly sexual harassment or other forms of workplace discrimination. The timely, complete, and objective investigation of such claims is central to an organization’s ability to protect itself from, or during, litigation. Organizations without in-house expertise to conduct such investigations will likely seek expert assistance from knowledgeable and experienced consultants or private investigators from outside the firm. This article examines the significant consequences of an organization’s decision to outsource investigations of workplace harassment following a claim of wrongdoing. According to a recent letter ruling by Federal Trade Commission staff, such externally conducted investigations fall under the provisions of the Fair Credit Reporting Act, thus placing additional compliance burdens on firms attempting to rid the workplace of discrimination. This paper reviews these developments, offers advice on managing the investigative process, and suggests changes in public policy.
