Sexual Harassment And Retaliation Claims In Michigan
Unfortunately, sexual harassment and retaliatory actions against employees who seek help are still relatively common actions in workplaces throughout the United States, and Flint is no exception.
Most sexual harassment claims in the Flint area are cases alleging that the workplace has become a hostile environment. To prove you work in a hostile work environment, the unwanted sexual attention and conduct must be so “severe or pervasive” that any reasonable person would find the environment abusive, intimidating, or hostile.
Some victims allege harassment based on quid pro quo, which literally means “this for that”: it is an offer of employment favor in exchange for sexual favors, or adverse employment actions taken as a result of refusal of sexual advances.
If you are experiencing sexual harassment, or you are being retaliated against for bringing a claim of sexual harassment, you should contact a Flint sexual harassment lawyer to discuss your options.
What is Sexual Harassment?
Sexual harassment is abuse that is either verbal or physical, and is sexual in nature. The harasser and the victim can be male or female, and can also be of the same gender.
Title VII of the Civil Rights Act of 1964 prohibits two categories of sexual harassment, “hostile environment” harassment and “quid pro quo” harassment. Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a).
Sexual harassment is also unlawful in Michigan under the Elliot-Larsen Civil Rights Act of 1973.
Quid Pro Quo Harassment
Quid pro quo harassment occurs when a manager or supervisor requests sexual favors in exchange for an employment related benefit. This can include a positive review, a raise, or a promotion.
Quid pro quo harassment can occur with just one sexual demand or advance, or a number of advances. Sometimes the supervisor or manager threatens retaliation if the sexual advance is declined.
If you are facing quid pro quo harassing behavior from a supervisor, there is often a legal claim that can be brought against your employer, based on a legal concept called vicarious liability. Vicarious liability means that the employer is responsible for the actions of the employee who is harassing you.
You can prevail on a quid pro quo claim without having to prove you suffered an economic harm, as long as you establish that
- you were harassed by your supervisor;
- an aspect related to your employment status was dependent upon your response to the advance; and
- the sexual advance was not welcomed by you.
Hostile Environment Harassment
The more common type of sexual harassment claim is sexual harassment which creates a hostile work environment. A hostile environment is created when unwelcome sexual conduct or attention is so pervasive or severe that a reasonable person would find the work environment hostile and abusive, or interferes with the ability of the employee being harassed to do his or her job.
Cases which allege a hostile environment usually involve multiple offenses committed over an extended period of time, although on occasion there can be a single act which is extraordinarily threatening or abusive.
Examples of conduct that leads to hostile environment claim include unwanted sexual advances, sexually suggestive or explicit comments or emails, pornographic or suggestive photographs posted in a public area, and of course physical conduct, including sexual assault.
Not all offensive conduct creates a hostile work environment. An objective standard is used to judge behavior, meaning it will be judged against how a reasonable person would perceive it.
This means that if a person tells one off-color joke, it is unlikely that there is an actionable matter of sexual harassment; it is the larger context that the joke was made within that is important.
When is Conduct “Severe” or “Pervasive”?
Severe or pervasive is the standard for sexual harassment claims based on hostile environment, and is intended to ensure that only extreme conduct leads to viable sexual harassment actions.
Using the severe or pervasive standard, offhand comments, sporadic joking and teasing, or occasional gender-based jokes are not actionable; only that behavior which is severe or pervasive enough to alter the conditions of your employment is actionable.
That said, you do not need to wait until you suffer a nervous breakdown or some other type of irreparable psychological harm to have suffered severe or pervasive harassment. It is important to note the standard is severe OR pervasive, not severe AND pervasive.
So, for example, if somebody is sexually assaulted at work, once is enough, because the conduct is severe. If someone is subjected to off-color jokes, however, it must occur regularly to be pervasive enough that it results in a hostile environment.
What Steps Should You Take if You are Being Sexually Harassed at Work?
Victims of sexual harassment often feel as if they have no recourse when harassment occurs. This is not true; if you are being harassed, you have rights under Title VII of the Civil Rights Act of 1964, and additional protections under Michigan law.
You have to speak up for yourself if you feel you are being harassed. Some people do not even realize their conduct is offensive until they are told, so begin by letting the person displaying harassing behavior know that you do not like it. Putting the harasser on notice is the first step in protecting your rights.
This is in cases where you are not in physical danger, of course. If somebody has physically assaulted you, then call the police immediately. In most sexual harassment cases, however, the first step is letting the offending person know that the behavior is unwelcome.
If that does not stop the offending behavior, then it is time to make a complaint with your employer. Many companies have procedures to follow if you want to make a sexual harassment claim.
If your company has a written policy, then it is important to follow it and comply with the requirements; do not delay in making a complaint and make sure it is directed at the staff member your employer has designated.
If your company does not have a set procedure for dealing with claims of sexual harassment, then make a complaint to the immediate supervisor of your harasser.
I always recommend that any complaint be made in writing, so there is a record that you made it. It is imperative that the management of the company is aware of the harassment before you pursue a claim outside of your company, so they have a chance to remedy the situation.
Keep written records of who you complain to, including the date and time of each complaint, and the name and title to everyone you complain to. Also included in your records should be any written or verbal response you receive.
Filing a Complaint Against Your Employer
If your harassment issue remains unresolved after using the internal procedures set up by your employer or otherwise trying to resolve the situation internally, it is time to consider filing an administrative charge of sexual harassment.
This can be done by either filing a charge with the Equal Employment Opportunity Commission (EEOC) or with the Michigan Department of Civil Rights. Your claim will be investigated and the proper agency will either find that there is not enough evidence to establish harassment or will attempt to negotiate with your employer to resolve the claim.
If the claim is still not resolved at this point, the agency may sue your employer, or if they do not pursue your claim, you will be issued a “right to sue” letter, which allows you to seek recovery for your sexual harassment claim in a court.
On occasion, employers respond to claims of sexual harassment by retaliating against the employee making the claim, either by outright termination or through adverse employment decisions that were made only as a result of the complaint.
The same actions which lead to a discrimination claim may also form the basis of a retaliation claim, especially in quid pro quo cases where an employee is denied a promotion or raise or suffers an adverse effect after refusing a sexual advance. Your employer does not have to be found liable for discrimination to be liable for a claim of retaliation.
It is illegal in Michigan and a violation of the Elliot-Larsen Civil Rights Act to retaliate against an employee who makes a charge or files a complaint of discrimination.
According to the law, an employer may not retaliate or discriminate against a person who opposes a violation of the Elliot-Larsen Civil Rights Act or files a complaint, makes a charge, or participates in an investigation, proceeding, or hearing alleging discrimination. It is also a violation of federal law to retaliate against an employee who pursues a sexual harassment claim.
Call a Michigan Sexual Harassment Attorney
You do not have to tolerate workplace sexual harassment; every person has the right to be treated with dignity and respect, at work and elsewhere. If you are not being treated that way, I can help you. I have devoted my legal career to helping and protecting people from unfair and unlawful behavior, and I will do the same for you. Call or email Andrew L. Campbell today for a free consultation; let me help you protect your rights and stop the harassing behavior you are being subjected to.