Justices Will Not Explore Scope of 'Participation' Clause

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The U.S. Supreme Court March 7 declined to review a federal appeals court's decision to dismiss a retaliation claim brought under Title VII of the 1964 Civil Rights Act by a female medical center chaplain who alleged she was fired for participating in an internal sex discrimination investigation of the chaplain staff's male director (Hatmaker v. Memorial Med. Ctr., U.S., No. 10-724, cert. denied3/7/11).

Affirming a federal district court's ruling in favor of Memorial Medical Center in Springfield, Ill., the U.S. Court of Appeals for the Seventh Circuit had ruled that the “participation” clause found in Section 704(a) of Title VII does not protect Janet Hatmaker because the provision applies only to investigations performed by official worker protection agencies, such as the Equal Employment Opportunity Commission ( 619 F.3d 741, 110 FEP Cases 143 (7th Cir. 2010)).

Hatmaker petitioned the Supreme Court to review the decision to determine whether Section 704(a) also protects a worker from being dismissed because she was compelled to cooperate with her employer's internal investigation of sexual harassment. She argued the issue was left open by the court in Crawford v. Metropolitan Government of Nashville & Davidson County ( 552 U.S. 1126 (2009), in which the justices declined to consider the parties' “participation” clause arguments because they decided the case based on Title VII's “opposition” clause (27 HRR 94, 2/2/09).

Chaplain Questioned Director's Leadership.

According to the Seventh Circuit's opinion, Memorial Medical's chief human resources officer, Forrest Hester, named Rev. Greg Stafford to serve as acting director of the hospital's chaplain staff after its director fell ill. During the selection process for a permanent director, Hester solicited opinions from chaplain staff members, including Hatmaker.

In response, Hatmaker e-mailed Hester and expressed concern about Stafford attempting to be a “good ole boy” in order to gain popularity and thus sacrificing “dignity and leadership.” Hatmaker continued to complain along the same lines after Stafford became the permanent director.

Hester subsequently ordered an investigation into Hatmaker's allegations and insisted that Hatmaker speak with investigators despite her professed reluctance to do so. During an interview, Hatmaker described Stafford as having “inherent sexist attitudes” because he is “a Southern Baptist and a 'good ole boy.'” She also said he “puts down women.”

Based on the investigation's results, however, Hester concluded that Stafford had not created a hostile environment for female chaplain staff. Hester also became concerned about Hatmaker's remarks relating to religious and racial stereotypes and told investigators to inform Hatmaker that she should resign if she felt uncomfortable working for Stafford.

Hatmaker sent a final e-mail to Hester stating that she would relay any future concerns to Stafford directly “with the hope that he will seek professional guidance.” Upon receiving the e-mail, Hester suspended Hatmaker for 30 days to give her an opportunity to resolve her issues with Stafford, but he ended up terminating her at the end of that period after no resolution had been reached.

Hatmaker sued Memorial Medical under Title VII, but the U.S. District Court for the Central District of Illinois ruled in favor of the hospital. Affirming, the Seventh Circuit found that Hatmaker's retaliation claim failed under Title VII's “participation” clause because she was involved in a “purely internal investigation” of possible sex discrimination and not an official investigation conducted by an “official body authorized to enforce Title VII,” such as EEOC. Further, the court held, even if an employer's internal investigation constitutes an “investigation” within the meaning of Title VII, Memorial Medical did not fire Hatmaker for participating in one.

Petition Seeks to Resolve Issue From Crawford.

In her petition for Supreme Court review, Hatmaker asked the justices to consider a question they left unresolved in Crawford, that is, whether Section 704(a) of Title VII protects a worker who participates in her employer's internal investigation of potential unlawful discrimination.

If left to stand, Hatmaker argued, the Seventh Circuit's decision will serve to “frustrate” Title VII's broad remedial goals. “If the truly remedial nature of Title VII is to be fully realized, an employee must feel secure that by coming forward they will not suffer any adverse consequences,” she said.

Additionally, Hatmaker cited a circuit split on the scope of Title VII's participation clause, contending that the Seventh Circuit's decision is inconsistent with the Ninth Circuit's ruling in Hashimoto v. Dalton( 118 F.3d 671, 74 FEP Cases 533 (9th Cir. 1997)). In Hashimoto, the Ninth Circuit concluded that Title VII's participation clause protected a worker who alleged she was retaliated against after being interviewed by a company EEO counselor about work issues unrelated to discrimination.

Further, Hatmaker said the Seventh Circuit created a “very large opening” for employers to retaliate against workers “should the employer arbitrarily conclude that the employee exercised 'bad judgment' during the course of an investigation.”

No Participation in Investigation.

In its brief opposing Hatmaker's petition, Memorial Medical argued that the case was not an appropriate vehicle to address any participation clause question left open by Crawford because Hatmaker “did not in fact participate in an investigation and brought forth no issue that Title VII was designed to address.”

The hospital contended that the investigator's interview of Hatmaker was merely a “preliminary inquiry” to determine “what, if anything, Hatmaker was alleging” in her initial e-mail. “When Hatmaker herself made clear that she was bringing forth no allegation of actual gender specific misconduct engaged in by Stafford, and instead appeared focused on her own prejudicial view of certain religious denominations, the preliminary inquiry ended,” the hospital said.

Additionally, Memorial Medical said there exists no circuit conflict regarding the scope of the participation clause. The Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh circuits have all held that “participation clause protection is dependent upon initiation of EEOC proceedings,” the hospital said.

By Jay-Anne B. Casuga