Watch what you say

Hatmaker v. Memorial Medical Center is an interesting case out of the 7th U.S. Circuit Court of Appeals. It poses this question: Can an employee be terminated for what she says in the course of an investigation into a potentially sexually hostile work environment? The court sketches out the facts: Janet Hatmaker worked as a part-time chaplain at Memorial Medical Center. She did not like the guy who was appointed head chaplain and said so in an e-mail to the company's chief human resources officer. She wrote:" On a personal level, in several conversations I have had with him he quickly referenced his 2 divorces, and his distrust/discomfort with women; however, his obvious attraction to/fear of women raises many questions for me about whether he has addressed or been addressed by this significant issue in his Clinical Pastoral Education. . . . I can't help but wonder if his lack of self knowledge in regard to women and intimacy/partnership is part of his provisional acceptance into this professional organization." So much for Christian charity among the chaplains. Two fateful decisions were then made. She wrote in the e-mail that she was sending it to the CEO and a member of the board. The HR honcho then decided to investigate to see if there was a sexually hostile work environment. Hatmaker was interviewed and kept harping on these quibbles; the employer decided that she had a preoccupation with superficial characteristics and could not work with the head chaplain. She was fired. She sued. The trial court tossed the case on summary judgment, and the 7th Circuit on Aug. 30 said it was right to do so. While acknowledging that it is unlawful to fire someone for participating in an investigation of employment discrimination, the 7th Circuit wrote, "But participation doesn't insulate an employee from being discharged for conduct that, if it occurred outside an investigation, would warrant termination." The 7th Circuit noted that other courts hold otherwise: "They think that even defamatory and malicious accusations made in the course of an EEOC investigation cannot be a lawful ground for discipline." The court notes that none of Hatmaker's statements to the HR honcho and another person suggested sex discrimination, "so they didn't begin to trigger the retaliation provisions of Title VII. They were complaints about an awkward boss who the plaintiff thought might become a problem in the future. Her emails do not accuse him of discrimination and her deposition states that she was just trying to head off the possible future emergence of a hostile work environment."