THE UNINTENDED CONSEQUENCES OF OUTSOURCING SEXUAL HARASSMENT INVESTIGATIONS

Abstract

This article examines the unintended consequences of an organization’s decision to outsource investigations of sexual harassment following a claim of wrongdoing. United States Supreme Court decisions have affirmed an employer’s “vicarious liability” for failing to take reasonable care to prevent or correct promptly sexually harassing behavior. Organizations not possessing in-house expertise to conduct such investigations will likely seek expert assistance from knowledgeable and experienced attorneys or private investigators from outside the firm. According to a recent 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 gender-based discrimination. This article reviews these developments, offers advice on managing the investigative process, and suggests ways in which business might lobby for changes in public policy to ease this newest burden. After sexual harassment took center stage during the 1991 confirmation hearings of Clarence Thomas as associate justice of the United States Supreme Court, the number of harassment charges filed with the Equal Employment Opportunity Commission (EEOC) rose substantially. Concomitantly, lawsuits claiming violations of federal and state sexual harassment laws became commonplace. The growth of harassment filings has increased liability risks for all organizations, 123