Outsourcing Investigations of Sexual Harassment: The Unexpected Consequences of Good Intentions

• Published in: Employment Relations Today 2001-12, Vol.27 (4), p.65-78
• Main Authors: Morgan, James F., Gomes, Glenn M., Owens, James M.
• Format: Article
• Language: English
• Subjects: Employers; Employment; Fair Credit Reporting Act 1970-US; Investigations; Labor law; Liability; Outsourcing; Perceptions; Sexual harassment; Supreme Court decisions
• ISSN: 0745-7790; 1520-6459
• DOI: 10.1002/ert.18

Two recent US Supreme Court decisions, Burlington Industries v. Ellereth (1998) and Faragher v. City of Boca Raton (1998), reaffirmed the principle that employers may be held liable for not establishing, disseminating, and consistently enforcing a policy that prohibits sexual harassment. Also, if a complaint alleging sexual harassment arises, these cases confirm the need for employers to conduct a "reasonable" investigation. Congress amended the Fair Credit Reporting Act in 1997 in such a way as to include under its provisions sexual harassment investigations performed by outside investigators. Outsourcing investigations to specialists helps to minimize the economic risks associated with adverse employment decisions based on faulty or incomplete investigations conducted in-house. The decision to outsource investigations immediately places additional compliance burdens upon these employers: 1. Multiple notices are required to be sent to the person accused of sexual harassment. 2. The investigator's report must be disclosed to the accused harasser if the employer plans to discipline the employee.