How Is Sexual Harassment Defined In Michigan?

Michigan law defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when

  • submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment,
  • submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, and
  • The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment or creating an intimidating, hostile, or offensive employment environment.

The first two of the above involve a person submitting to conduct or communication while the last part of the definition involves conduct that alters the work environment.

Two types of work place sexual harassment

‘Quid pro quo (“this for that” in Latin) harassment’ is the rarer of the two forms of sexual harassment. It involves a direct or indirect request by an employer to submit to sex based conduct or communication in return for either getting a job or keeping a job.

An example would be a supervisor asking an employee, “Hey, if you perform this sexual act for me, I will help you in some way,” such as a raise, a promotion, or a positive performance review.

A person would like have a claim under this theory if their submission to or rejection of that request is used as a factor in decisions affecting that person’s employment So if a person were fired, demoted, or given a poor review for rejecting that request, they could very well have a claim.

A quid pro quo claim always results in direct economic harm to the victim employee. The direct economic harm, however, must be more than brief or temporary in nature. For example, where an employee is put in a different (less desirable) job for 10 days with no change in income, a court would not likely find liability.

These types of claims are fairly rare because they are very difficult to prove. Not many persons in power would put such requests or conditions in writing or in a place where they could legally be recorded. So workers employed at isolated locations are particularly at risk.

The far more common type of sexual harassment is known as ‘hostile work environment’. This form of harassment is so severe or pervasive that it actually changes the working conditions. The employee either quits because they cannot take it anymore, a constructive discharge, or they are demoted, given a bad review or penalized in some way.

A constructive discharge can occur only where the employer or its agents engage in conduct so severe that a reasonable person in the employee’s place would be compelled to resign.

The U.S. Supreme Court has explained that quid pro quo harassment results in a “tangible employment action” based on the plaintiff’s refusal or submission to a supervisor’s sexual demands, whereas a hostile environment claim is one where threats of adverse action were never made or were never carried out, but the harassment was “severe and pervasive.”

In both types of harassment, the conduct must be unwelcome. The Michigan Supreme Court has stated that the threshold for determining that conduct is unwelcome is that the employee did not solicit or incite it, and the employee regarded the sexual conduct or communication as undesirable or offensive.

Both state and federal courts require that the harassment be analyzed under the reasonable person standard. In other words, would a reasonable person (gender-neutral) in the same or similar circumstance objectively consider the behavior to be severe or pervasive. Also the victim must subjectively perceive the environment to be abusive and must also believe that the conduct has altered the conditions of the victim’s employment.

The first thing any employee must do is to first understand whether federal or state law applies. If there are less than fifteen employees working for the employer, then only Michigan law can apply. If there are fifteen or more employees, both federal and Michigan applies.
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Federal law is much more favorable than Michigan law in terms of pursuing a sexual harassment claim. You don’t want to take a case into the Michigan courts unless you really have to. While there are exceptions, state courts are generally more hostile to employees compared to the federal courts.

How Common Is Sexual Harassment In The Workplace?

According to the EEOC, in 2014 there were 26,027 complaints of sexual harassment in the United States. In Michigan there were 684 complaints filed with the EEOC and 908 complaint alleging retaliation. Retaliation claims often accompany claims of sexual harassment and are a good way to make a case against an employer even stronger.

Work place sexual harassment can take place anywhere. Farm workers, hospitality workers, and workers in male dominated industries tend to complain the most.

What Are Some Common Examples Of Sexual Harassment At The Workplace?

Any activity where there is anti-female (or anti-male) animus, whether it’s some type of anger or behavior that’s negative towards the opposite sex, can constitute the basis for a sexual harassment claim.

A hostile work environment claim is based upon severe or pervasive behavior that creates an abusive working environment. A court will look at the totality of the circumstances to determine whether the sexual conduct arises to the level of severe or pervasive.

Relevant circumstances include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Most courts will find that teasing, offhand comments, and isolated incidents (unless extremely serious) will not cause a change in terms and conditions of employment. Profanity alone unless it is sex-specific, is not actionable. To have a valid claim the harassment must consist of more than words that simply have sexual content or connotations.

The more the sexual comments and other harassing acts are of a continual nature the more likely it will be determined to be pervasive. So the more frequent the unwelcome behavior is, the more likely a court will find liability. Conduct that involves a physical invasion of some sort will be more likely to be severe compared to sexual comments.

Whether the harasser is a supervisor, co-worker or customer can determine whether a claim is valid. Also, it is very important to follow the employee handbook or policy and report sexual harassment to the proper parties. To bring a claim in state court in Michigan it is necessary to give the employer a chance to rectify the situation. While federal law does allow some claims when an employee has not reported the sexual harassment to the employer, it is best to make sure the employer knows about the claim. No matter what, the claim should be in writing and factual in nature and sent certified mail return receipt or tracked in some manner to prove that the complaint was submitted.

Examples of conduct where a court found conduct was not severe or pervasive:

  • Employee complains that another employee on one occasion asked her if she would like to “have some fun,” moved his hips back and forth, placed his hand over her breast, and grabbed her buttocks. (Keep in mind that if this were a supervisor doing this or frequent type of conduct a court would likely find liability);
  • one incident of touching (a supervisor placed a pack of cigarettes inside plaintiff’s tank top and bra strap), combined with two offensive remarks over a six-month period;
  • employee heard coworkers use the “f-word,” “[take] the Lord’s name in vain,” and make sex-related comments about women, mostly at shift meetings and directed to the group and not to her;
  • Supervisor’s recitation of dirty jokes, sexual advance related to plaintiff’s evaluation, reference to plaintiff as “Hot Lips,” and isolated comments about plaintiff’s state of dress.

Examples of conduct where a court found conduct was severe or pervasive:

  • plaintiff’s coworker harassed her by (1) routinely referring to women in obscene terms and making other degrading remarks about women on a daily basis; (2) isolating and shunning her; (3) setting off false alarms in plaintiff’s work area and otherwise sabotaging her work; (4) slashing her bicycle tires; and (5) leaving a Bible verse in her locker admonishing women to stay quiet and submissive, among other acts of hostility;
  • repeated solicitation of sexual relations in a vulgar and humiliating manner” on a weekly basis for two or three months;

For more information on Sexual Harassment In Michigan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling [number type=”1″] today.