Is “reasonable suspicion” required by Title VI?
No foundational requirements are imposed on employers for initiating investigations, for example, “reasonable suspicion” of misconduct or that evidence may be destroyed, etc. (The FTC had recommended such a requirement in its testimony before Congress in connection with the amendments proposed in 1999.) Moreover, the breadth of the exemption appears to be very expansive. Title VI does not limit the types of “misconduct” investigations that are exempted (e.g., threats of serious harm or violence, abuse of controlled substances, the loss of more than $1,000 in cash or property, etc.). Title VI also extends to investigations into compliance with “any preexisting written policies” and may encompass financial audits, information technology audits, loss prevention audits, etc. On the other hand, the FACT”s text suggests at least some substantive limitations. For example, the suspected misconduct must “relate to employment,” and, the policies must predate the investigation and be in writing.
