BUSINESS LAW: Comments do count

In employment discrimination cases, comments made by the employer's representatives often play an important role. This was true in two recent cases.

The first case involved a sexual harassment claim brought by a female doctor. She was a member of her employer's quality assurance committee. In that capacity, she investigated three claims against another physician. In her report, the female physician noted the male co–worker acted inappropriately toward female employees.

When it came time for the female employee to have her credentials renewed, the male physician spoke against her. In the course of the evaluation process, the male doctor spoke of her in unflattering terms, including calling her a "little girl."

In a subsequent hostile work environment suit, the male doctor's comments were introduced into evidence. It contributed to a jury's verdict against the hospital of more than $1,500,000.

In the second case, the comments were equally offensive, but the outcome was different. In this case, the employer determined that several employees had used its email system to send sexually inappropriate photographs. The employees were initially suspended, pending the completion of the investigation.

The employer ultimately terminated four of the six employees. Two of the terminated employees filed an age discrimination case, alleging they were fired while younger employees were not for violating the same policy.

During the course of the suit, the employees tried unsuccessfully to introduce evidence of aged–based statements made by the employer. The comments included statements that the employees should have retired because they were getting "grey hair" and because the employer needed "new blood."

Why were the comments admitted into evidence in the first case, but not in the second? In the first case, the offensive gender–based comments were made by the person who directly affected the female employee. In the second case, the age–based comments were made by individuals who were not involved in the investigation of, and decision to terminate, the employees.

In both instances, the comments were inappropriate and should not have been made. To paraphrase an old saying, "loose lips can sink employers."

Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.