Michigan Sexual Harassment Laws
Sexual harassment is defined as a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to any employer of at least 15 people, including agencies at the local, state, and federal levels, as well as labor organizations. This article distinguishes the term “sexual harassment” bandied about in pop culture from its legal definition under federal statutes and Michigan sexual harassment law.
Overused and abused by the media, “sexual harassment” has a much more limited legal definition that narrows what is “acceptable” in the workplace. Since sexual harassment accusations can RUIN REPUTATIONS and cost people jobs, it is important to know the difference. An experienced sexual harassment attorney can distinguish between a valid claim and BIASED BLAME.
Michigan Sexual Harassment Laws
The Michigan Penal Code, Act 328 prohibits sexual harassment. Section 750.411h defines “sexual harassment” as conduct shaped by continued, non-consensual contact of a victim that would cause a “reasonable individual” significant mental suffering or distress. Under this section, UNCONSENTED CONTACT may include:
- Contact through phone, text, or direct message
- Approaching a person in a public or private place
- Mailing letters or delivering objects to a residence
- Following or tracking an individual’s movements
- Appearing at another’s home or workplace
Sexual harassment could refer to physical conduct or verbal behavior, but need not be of a sexual nature. Rather, it may include prejudicial comments about, or discrimination based upon, a person’s sexual nature. In other words, the alleged victim must prove a pattern or practice of unwanted physical conduct, i.e. offensive touching, that would offend a “reasonable person,” creating a hostile work environment. Under Michigan law, all elements must be present to prove a sexual harassment claim.
Sexual Harassment Under Federal Law
- Unwelcome sexual advances and
- Requests for sexual favors in exchange for a work-related benefit
- (“Quid pro quo” sexual harassment)
- Substantially interfering with an individual’s employment or work performance
- Creating a hostile work environment
A Michigan criminal defense lawyer focused on sex crimes can determine whether a claim meets all the legal elements.
Sexually Hostile Work Environment
Unwelcome sexual advances and requests for SEXUAL FAVORS create a hostile work environment when:
- Submission is an explicit or implied condition of an individual’s employment
- Submission or rejection of the conduct serves as the basis for employment decisions
- Purposeful conduct has the effect of unreasonably interfering with work performance
A sexual harassment case begins with the employee reporting a supervisor’s sexual demands, conduct, or communication up the chain of command to a managing supervisor or human resources.
Quid Pro Quo Sexual Harassment and Tangible Employment Action
Quid pro quo sexual harassment refers to a direct exchange of a sexual favor in return for a “tangible employment action” or significant change in an INDIVIDUAL‘S EMPLOYMENT status, including:
- Hiring and firing
- Promotion or demotion
- Constructive discharge
- Reassignment or transfer
- Increased benefits, salary
- Change in responsibilities
In other words, quid pro quo sexual harassment is the prohibited use of supervisory authority to coerce employees to agree to sexual demands or face material job-related consequences if they refuse, creating an offensive employment environment.
Prohibited Sexual Conduct or Communication
Michigan sexual harassment law does not prohibit any form of conduct or communication that someone could find offensive or interpret to be of sexual nature. For example, isolated incidents of teasing or off-color comments may not be quid pro quo or materially affect a person’s employment, much less create an offensive employment environment.
However, unwanted CONDUCT OR COMMUNICATION must not become so frequent and severe to result in a tangible adverse employment action or create a hostile work environment. However, habitually offensive conduct or communication by a supervisor, co-worker, or client need not be of a sexual nature or cause economic injury to be actionable.
Reporting Sexual Harassment
The U.S. Equal Employment Opportunity Commission (EEOC) is the agency responsible for investigating reports of WORKPLACE SEXUAL HARASSMENT. Under Michigan’s Elliot-Larsen Civil Rights Act (ELCRA) and relevant state and federal laws, a sexual harassment complaint requires:
- First reporting sexual conduct or communication to management
- Also known as “exhausting administrative remedies”
- Filing a complaint with the EEOC within 180 days of the sexual harassment taking place
- Alleging illegal discrimination relating to employment, education, or accommodation
- Showing conduct or communication substantially interfering with an individual’s employment
Certain federal laws extend the 180–DAY DEADLINE for filing a quid pro quo sexual harassment complaint to one year. Michigan law gives individuals up to three years. The EEOC must then look at the “record as a whole” using a “totality of circumstances” approach to determine whether the unwelcome sexual advances — taken in context — constitute sexual harassment. Not all conduct or communication perceived as sexual will pass muster.
Retaliation for Reporting Sexual Harassment
Title VII §10.13 prohibits employers from retaliating against workers who report sexual harassment through constructive discharge. U.S. Supreme Court and Ninth Circuit case law defines “constructive discharge” as making work conditions so intolerable as to overcome the normal motivation of a REASONABLE PERSON to remain on the job and thus feel compelled to resign.
However, an “unfulfilled” threat of discharge for reporting sexual harassment is insufficient. Instead, the retaliating supervisor must have taken tangible adverse employment action by either:
- Coercing the reporting employee to engage in sexual acts or
- Upon failing (i), discharge the employee for refusal to submit to sexual demands
Vicarious Liability and Affirmative Defenses
Employers may be held “vicariously” responsible for the sexual harassment of employees, supervisors, or agents if they knew or should have known of the criminal sexual conduct. Employers must take “immediate CORRECTIVE ACTION” by:
- Adopting measures to prevent sexual harassment
- Affirmatively addressing conduct and expressing strong disapproval
- Levying appropriate sanctions for sexual harassment
- Informing employees of their right to raise Title VII claims
- Developing methods to train and sensitize parties to the issue
An affirmative defense is not available to employers who EMPOWER EMPLOYEES to constructively discharge the victim reporting sexual harassment. Supervisory abuse of “official authority” must have been part of the conduct leading to the constructive discharge.
If the supervisor indeed grants employment benefits or opportunities in exchange for sexual favors or submitting to sexual advances, employers are vicariously liable for the supervisor’s unlawful sexual discrimination against others who qualified for, but were denied those benefits.
Contact a Michigan Sexual Harassment Lawyer
All communications are confidential under the attorney-client relationship. Do not bear blame in silence. If you were accused of sexual harassment in the workplace or elsewhere, contact Attorney Nicole Blank Becker, a skilled sexual harassment defense attorney in Michigan, and her team at Blank Law, PC for a free confidential case evaluation.
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