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Employment Hot Topic: Sexual Harassment

December 7, 2017

Sexual Harassment has been a “hot topic” in the news lately. Numerous high profile individuals have been accused of engaging in workplace sexual harassment with alleged victims going public and sharing their story via the news media.  Given the number of public conversations regarding the topic, it is important to understand what constitutes sexual harassment and how it can affect you. If you are an employer, this is a great time to make sure that harassment and discrimination are addressed in your Employee Handbook and that your Handbook has been reviewed to make sure it is up-to-date by an attorney who specializes in employment law.

           

Sexual harassment in the workplace is not limited to unwelcome touching or demands for sexual acts. Sexual harassment can include, but is not limited to: sexting; forwarding images or videos via cell-phone or e-mail; e-mail forwards, inappropriate or offensive social media posts; offensive touching; crude jokes (even if everyone laughs);  or posting images, cartoons, or icons that are pervasive, obscene, dirty, or sexually related. Sexual harassment does not always have to be specifically about sexual behavior or directed at a specific individual. For example, negative comments about women (or men) as a group may be a form of sexual harassment in certain circumstances.

 

Federal and state antidiscrimination statutes protect Michigan employees from workplace harassment in both the private and the public sectors. Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and the federal Title VII of the Civil Rights Act of 1964 (Title VII) both recognize workplace harassment as a form of employment discrimination.

           

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

  1. submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment,

  2. 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

  3. 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.[1]

Both federal and Michigan courts recognize two types of sexual harassment: (1) quid pro quo harassment, where submission to or rejection of sexual conduct or communication is used as a factor in decisions relating to an individual’s job benefits, and (2) harassment that creates an offensive or hostile environment. 

           

An employer is strictly liable for quid pro quo harassment of an employee. An employer is liable for coworker harassment only if the employer was negligent in failing to stop the harassment after receiving actual or constructive notice. Additionally, an employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser, and is therefore on clear notice that the same person has engaged in inappropriate behavior in the past.  An employer must take prompt remedial action when it has knowledge that illegal harassment has occurred.  A prompt termination of the alleged offender has been held to be a sufficient means of avoiding sexual harassment liability. However, termination is not necessary where the employer’s alternate actions are sufficient to prevent continued harassment. An employer faced with a pattern of harassment complaints must both respond appropriately and take increasingly effective steps designed to end the harassment. An employer’s failure to do so suggests indifference and permissiveness of the harassment on the part of its management.

           

If you are an employee and believe that you have been a victim of sexual harassment or harassment based on any protected status you should consult with an employment attorney promptly. If you believe that you are being harassed, say “NO” to the harasser. Be direct.

           

If you are an employer who has either actual or constructive notice of harassment in the workplace, you must take prompt action to stop the harassing behavior and are strongly encouraged to consult with an employment attorney.

           

If you have additional questions regarding sexual harassment or other instances of harassment and/or discrimination in the workplace, contact Nancy Chinonis at Cline, Cline & Griffin P.C.: (810)232-3141; nchinonis@ccglawyers.com.

 

 

 

[1] MCL 37.2103(i).

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