Sensitive material may not be deleted, even to prevent disclosure of privileged legal analysis by the employer s lawyers. The FTC has refused to reconsider its interpretation of the FCRA despite an avalanche of criticism. The FTC s April 1999 opinion has placed employers in a difficult position. For example, in order to avoid liability under Title VII of the 1964 Civil Rights Act, the employer must investigate sexual harassment allegations promptly and thoroughly and take appropriate corrective action. In addition, under guidelines of the Equal Employment Opportunity Commission, if an employee obtains a copy of a harassment investigation report and proceeds to retaliate against witnesses and the complainant identified in the report, the employer will be held responsible.
Retaliation is a common occurrence.
Pursuant to the bill, an employer would be required to disclose to the employee the nature and substance of information in the report, but not the report itself, before taking proposed adverse action against the employee based on the report. Employees are entitled to see any evidence that may be used against them and to know who their accusers are. As interpreted by the FTC, the FCRA discourages an employer from using an independent agency to conduct internal investigations of misconduct. The use of an independent agency is likely to produce a more neutral report and be less amenable to challenge if a lawsuit is filed. Witnesses are less likely to cooperate if they know the target employee will see the report.