LEGAL ANALYSIS Sexual Harassment in the Workplace: Examining Title VII and the Elliott-Larsen Civil Rights Act Jenni M. Slauter 1 Introduction Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of an individual s race, color, religion, sex or national origin. 2 From the time of its inception, Title VII has given victims of sexual harassment and sexual discrimination a claim of action against their employers for the discriminatory acts of co-workers, supervisors, and even customers. Title VII evolved over the years to establish both guidelines for defining sexual harassment in the workplace and recommendations for dealing with this problem. In 1977, Michigan adopted the Elliott-Larsen Civil Rights Act in accordance with Title VII. This statute proscribes that an employer shall not discriminate because of religion, race, color, national origin, age, sex, weight or marital status. 3 The Michigan statute closely mirrors Title VII, and indeed Michigan courts often look to federal case law for guidance in sexual harassment cases. However, Michigan carefully distinguishes its statute and addresses sexual harassment in its own way. 4 This article will explore both Title VII and the Elliott-Larsen Civil Rights Act as they apply to sexual harassment in the workplace. 1 Second year law student, Michigan State DCL College of Law. B.A., Michigan State University, 2000. Jenni joined the Women s Legal Forum & Gender Review as a Note and Comment Editor in the fall of 2003. 2 42 U.S.C.A. 2000e-2 (2003). 3 Mich. Comp. Laws Ann 37.2202(a) (West 2003). 4 See Chambers v. Trettco, Inc., 463 Mich. App. 297, 614 N.W.2d 910 (2000) where the Michigan Supreme Court stated: We are many times guided in our interpretation of the Michigan Civil Rights Act by federal court interpretations of its counterpart federal statute. However, we have generally been careful to make it clear that we are not compelled to follow those federal interpretations. Chambers, 463 Mich. App. 297 at 313, 614 N.W.2d 910. at 917 (relying on Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 525, 398 N.W.2d 368 (1986); Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993)).
When Does an Employer s Conduct Rise to the level of Sexual Harassment in the Workplace? While neither the Federal statute nor the Michigan Civil Rights Act provide an exhaustive list of behaviors that can be classified as sexual harassment, case law concerned with sexual harassment explains that it can be found in many acts. Under Title VII, sexual harassment can be found in lewd comments, 5 sexually suggestive behavior, 6 and in speaking of one s gender in a discriminatory manner. 7 The Elliott-Larsen Civil Rights Act requires a stricter showing for sexual harassment and case law echoes this. In Michigan, sexual harassment can be found in conduct that is truly sexual in nature 8 or in acts of physical harassment against an employee. 9 Under either statute many factors must be considered in order for the court to find that sexual harassment existed in the workplace. Case law for both statutes explains that the determination can only be made by looking at all the circumstances. 10 Conduct Not Rising to the level of Sexual Harassment In order to properly address the issue of sexual harassment it is important to note the sort of behavior that does not qualify as such. In the case of Harris v. Forklift Systems, Inc. 11 the Supreme Court hoped to [take] a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible...injury. 12 This fairly recent case echoes those before it, explaining that rudeness and simple offensive behavior will not 5 See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 6 See Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 7 See Id. 8 See Haynie, 468 Mich. 302, 664 N.W.2d 129. 9 See Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993); Champion v. Nationwide Sec., Inc., 450 Mich. 702, 545 N.W.2d 596 (1996); Mcalla v. Ellis, 180 Mich. App. 372, 446 N.W.2d 904 (1989). 10 Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). See also Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993) (Michigan Supreme Court explaining that a sexual harassment claim must be viewed in totality of the circumstances ). 11 114 S. Ct. 367 (1993). 12 Harris, 114 S. Ct. 367 at 21. 2
usually rise to the level of sexual harassment. 13 The Supreme Court further explained in Faragher v. City of Boca Raton 14 that Title VII does not prohibit genuine but innocuous differences in the ways men and women routinely interact with [each other]. 15 The Court makes clear that a finding of sexual harassment in the workplace requires something more. The Elliott-Larsen Civil Rights Act draws a clean line between conduct that is and is not sexual harassment. As the Michigan Supreme Court explains in its recent decision, Haynie v. Mich. Dep t of State Police 16, only harassment that is sexual in nature can give rise to a claim of sexual harassment. 17 Thus, Michigan case law on sexual harassment presents a more obvious cause of action than can sometimes be found in federal cases. 18 It is clear, under the Michigan statute, that only conduct of a sexual nature will rise to the level of sexual harassment. Conduct Rising to the level of Sexual Harassment Title VII is meant to be interpreted broadly in its analysis in order to aggressively attack the problem of sexual harassment in the workplace. The statute itself provides the most basic of guidelines and the courts are left to fill in a more complete picture of actionable behavior. The federal courts begin with the concept that it is a basic violation of Title VII when an artificial barrier to employment has been placed on one gender and not the other. 19 This barrier is explained as any sort of condition of employment that is placed on an employee because of 13 See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 14 524 U.S. 775 (1998). 15 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998)). 16 468 Mich. 302, 664 N.W.2d 129 (2003). 17 E.g., Haynie v. Mich. Dep t of State Police, 468 Mich. 302, 664 N.W.2d 129 (2003). 18 See, e.g., Chambers v. Trettco, Inc., 463 Mich. App. 297, 614 N.W.2d 910 (2000); Mcalla v. Ellis, 180 Mich. App. 372, 446 N.W.2d 904 (1989) (each dealing with the extreme circumstance of rape in the workplace). Compare Haynie, 468 Mich. 302, 664 N.W.2d 129 (2003) (explaining that a less extreme case of gender discrimination is considered only under a claim of sexual discrimination in Michigan law). 19 Williams v. Saxbe, 413 F. Supp. 654, 659 (D.C. Cir. 1976). 3
gender. 20 The courts thus require a plaintiff [to] show that but for the fact of her sex, she would not have been the object of harassment. 21 From this prima facie point, the plaintiff must distinguish her claim of sexual harassment as being either a claim of quid pro quo 22 sexual harassment or hostile work environment sexual harassment. Quid pro quo sexual harassment is harassment that involves the conditioning of concrete employment benefits on sexual favors. 23 The second type of harassment, hostile work environment sexual harassment, is that which does not [affect] economic benefits [but] creates a hostile or offensive working environment. 24 Michigan s view of sexual harassment is best understood in the words of the Civil Rights Act itself. In the general provisions of the act, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature. 25 Simply stated, a plaintiff must begin with a showing that the complained of conduct was sexual in some degree. After establishing the sexual nature of the harassing behavior, the plaintiff, under Michigan law, must satisfy delineated requirements to establish either a quid pro quo or a hostile work environment sexual harassment claim. 26 i. Quid Pro Quo Sexual Harassment On its face, Title VII does not distinguish between quid pro quo and hostile work environment sexual harassment; federal case law develops these distinctions and their application. The Supreme Court case Burlington Industries, Inc. v. Ellerth, 27 clearly lays out the elements of quid pro quo sexual harassment. This case explains that for an employer s conduct 20 See Id.; Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). 21 Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982). 22 Latin for something for something. BLACKS LAW DICTIONARY 1009 (7th ed. 2000). 23 Meritor Savings Bank v. Vinson, 477 U.S. 62 (1986). 24 Id. 25 Mich. Comp. Laws Ann 37.2103(i) (West 2003). 26 These requirements will be explored later in this article. 27 524 U.S. 742 (1998). 4
to rise to the level of quid pro quo sexual harassment a tangible employment action [must] [result] from a refusal to submit to a supervisor s sexual demands. 28 A tangible employment action is any change in position, benefits, duties or even job loss. The Court in Burlington found that the employer s behavior, which amounted to verbal hazing and unwelcome touching, did not amount to quid pro quo sexual harassment because the plaintiff, Ms. Ellerth, did not experience any change in her job for her refusal to submit to her supervisor s advances. 29 The Court saw a clear example of quid pro quo sexual harassment in Barnes v. Costle, 30 however, when the Environmental Protection Agency abolished Ms. Barnes position as a direct result of her refusal to engage in sexual relations with her male supervisor. The court found that the supervisor solicited [Ms. Barnes]...[and] suggested that she cooperate with him in a sexual affair 31 in order to better her job position. When Ms. Barnes did not cooperate, her job duties were diminished and her position was ultimately abolished. 32 The behavior of the supervisor in this case presents a clear and concise example of quid pro quo sexual harassment. The federal courts conclude that for an employer s actions to rise to the level of quid pro quo sexual harassment the behavior must involve the conditioning of employment on sexual favors, this conditioning must be based on the gender of the employee and culminate in a change in the benefits or existence of employment. 33 Quid pro quo sexual harassment is a clear violation of Title VII and a court will readily find this type of behavior to rise to the level of inexcusable sexual harassment in the workplace. 28 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). 29 See Id. at 983. 30 561 F.2d 983 (D.C. Cir. 1977). 31 Barnes v. Costle, 561 F.2d 983, 984 (D.C. Cir. 1977). 32 See Barnes, 561 F.2d 983. 33 See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). 5
Michigan s Civil Rights Act specifically defines quid pro quo and hostile work environment sexual harassment as two separate causes of action. 34 The statute explains that quid pro quo sexual harassment occurs when (i) [s]ubmission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment or (ii) [s]ubmission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual s employment. 35 When making a claim of quid pro quo sexual harassment under the Michigan Civil Rights Act, the plaintiff must show (i) that she was subject to any of the types of sexual conduct or communication described in the statute, and (ii) that her employer or the employer s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. 36 The plaintiff in Champion v. Nationwide Sec., Inc. easily met the first requirement as she could show that she was a victim of rape by her employer s agent. 37 The court also decided that Ms. Champion s case satisfied the second requirement in a rather unique way. The court noted that Ms. Champion s refusal of her supervisor s advances led to his decision to use violence. This violence, then, led to Ms. Champion s constructive discharge. The court said that the supervisor s decision to rape Ms. Champion constituted the requisite decision affecting employment 38 for a finding of quid pro quo sexual harassment. However, applying the same two requirements to the claim of Ms. Hartleip in Hartleip v. McNeilab Inc., 39 the court did not see a case of quid pro quo sexual harassment. Ms. Hartleip received unwanted romantic letters and attention of a sexual nature from a quasi-superior. Ms. 34 See Haynie v. Mich. Dep t of State Police, 468 Mich. 302, 664 N.W.2d 129 (2003). 35 Mich. Comp. Laws Ann 37.2103(i)(i),(ii) (West 2003). 36 Champion v. Nationwide Sec., Inc., 450 Mich. 702, 708, 545 N.W.2d 596, 599 (1996). 37 E.g., Champion, 450 Mich. 702, 545 N.W.2d 596. 38 Id. at 710, 545 N.W.2d 596 at 600 (omission in original). 39 83 F.3d 767 (6th Cir. 1996). 6
Hartleip could not, however, establish a claim for quid pro quo sexual harassment because this quasi-superior was not in a position to affect her employment status and did not do so. 40 Whether under the broad interpretation of Title VII or the narrowly tailored requirements of the Elliott-Larsen Civil Rights Act, the quid pro quo sexual harassment claim is essentially the same. A plaintiff must demonstrate that her reaction to the complained of harassment concretely affected her employment. It is clear that both statutes intend to combat this blatant form of sexual harassment, each merely differing in its methods to meet this end. ii. Sexual Harassment Creating a Hostile Work Environment Behavior that culminates in quid pro quo sexual harassment is rather obvious under both the federal and Michigan statutes. Sexual harassment that creates a hostile work environment is not as easily defined under Title VII. This type of sexual harassment can be more subtle and will not have the tangible results seen in quid pro quo sexual harassment cases. However, the courts again provide direction for detecting this type of sexual harassment. The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee 41 the court established the importance of the E.E.O.C. guidelines saying that [i]n pertinent part [they] provide that [u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment. 42 The federal courts repeatedly rely on these guidelines in their analysis of hostile work environment sexual harassment claims and require that some additional factors be present to support such a claim. To find that an employer s conduct has created a hostile work 40 See Hartleip v. McNeilab, Inc., 83 F.3d 767 (6th Cir. 1996). 41 682 F.2d 897 (11th Cir. 1982). 42 Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (quoting 29 C.F.R. 1604.11(a) (1981)). 7
environment under Title VII a plaintiff must show that the complained of conduct was severe or pervasive 43 and that the environment could be both objectively and subjectively 44 perceived as abusive or hostile. Federal sexual harassment case law explores each of these requirements. The Elliott-Larsen Civil Rights Act specifically defines hostile work environment sexual harassment as conduct or communication [that] has the purpose or effect of substantially interfering with an individual s employment. 45 After establishing the sexual nature of the complained of conduct, a plaintiff making a hostile work environment sexual harassment claim must meet certain elements in order to establish a prima facie case. In Radtke v. Everett, the Michigan Supreme Court stated: there are five necessary elements to establish a prima facie case of a hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and 5) respondeat superior. 46 In reviewing each of these elements Michigan courts also rely on standard inquiries similar to those in federal law. Where federal case law requires a showing of severe and pervasive harassment, Michigan law uses a query of substantial interference. 47 Likewise, in judging a plaintiff s perception of harassing conduct, Michigan courts have developed their own objective reasonableness standard. 48 43 Id. at 67. 44 Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). 45 Mich. Comp. Laws Ann 37.2103(i)(iii) (West 2003). 46 Radtke v. Everett, 442 Mich. 368, 382, 501 N.W.2d 155, 162 (1993). 47 E.g., Radtke, 442 Mich. 368, 501 N.W.2d 155. 48 E.g., Champion v. Nationwide Sec., Inc., 450 Mich. 702, 545 N.W.2d 596 (1996); Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993). 8
Review of the Harassment under a Hostile Work Environment Claim i. The Harassment must be Severe or Pervasive Federal case law clearly establishes that for hostile work environment sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. 49 Case law on this subject does not delineate exactly what type of behavior must occur for an employer s conduct to rise to the level of severe and pervasive. The courts do, however, place emphasis on certain criteria for examining an employer s behavior. In Harris v. Forklift Systems, Inc. the Supreme Court explains an employer s behavior should be examined in light of frequency, severity, whether [the behavior] is physically threatening or humiliating and whether [the behavior] unreasonably interferes with an employee s work performance. 50 Using these criteria, the Court in Faragher v. City of Boca Raton, determined that an employer s behavior was severe or pervasive and did rise to the level of hostile work environment sexual harassment. 51 The employer in Faragher subjected his female employees to offensive touching, lewd remarks and the use of offensive language to talk about women. 52 This same examination led the court in Lockard v. Pizza Hut, 53 to find that a Pizza Hut supervisor had created a hostile work environment by playing offensive music while at work with his female employee and by ignoring the employee s requests for help when she was being physically harassed by male customers of the restaurant. 54 49 Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (quoting Rogers v. EEOC, 454 F.2d 234 (C.A.5 1971)). 50 Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). 51 See Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 52 Id. 53 162 F.3d 1062 (10th Cir. 1998). 54 See Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998). 9
These two cases present a clear picture of the types of behavior that rise to the level of sexual harassment under Title VII. But, as Harris explains, no single factor is required 55 for a finding of hostile work environment sexual harassment. These cases merely present some especially egregious examples of harassment [but] [t]hey do not mark the boundary of what is actionable. 56 ii. The Harassment Must Create a Substantial Interference Where the federal cases require a showing of severe or pervasive harassment, Michigan case law develops it s own inquiry to satisfy a Civil Rights Act claim. Various Michigan cases do demonstrate reliance on the severe or pervasive inquiry; however, these cases have either been decided under Title VII 57 or in reliance on the federal E.E.O.C. guidelines. 58 The majority view in Michigan employs an inquiry that directly reflects the State s own Civil Rights Act. 59 The Elliot Larsen Civil Rights Act guides Michigan courts to consider whether [t]he conduct or communication [had] the purpose or effect of substantially interfering with an individual's employment. 60 The Michigan Supreme Court relied on this portion of the Michigan statute in Radtke v. Everett, stating that a hostile work environment claim must be evaluated to determine whether the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with plaintiff s employment. 61 It is with this inquiry of substantial interference that guided the court to decide that even a single act of sexual harassment could create a hostile work 55 Harris, 510 U.S. at 23. 56 Id. at 22. 57 See Swanson v. Livingston County, 270 F. Supp. 2d 887 (E.D. Mich. 2003). 58 See Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314 (1996); Swanson v. Livingston County, 270 F. Supp. 2d 887 (E.D. Mich. 2003); Barrett v. Kirtland Cmty. Coll., 245 Mich. App. 306, 628 N.W.2d 63 (2001). 59 See, e.g., Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993); Haynie v. Mich. Dep t of State Police, 468 Mich. 302, 664 N.W.2d 129 (2003). 60 Mich. Comp. Laws Ann 37.2103(i)(iii) (West 2003). 61 Radtke, 442 Mich. at 385, 501 N.W.2d at 163. 10
environment for the employee. 62 In Radtke, the plaintiff s employer held her down on a couch in the lounge of the workplace and attempted to kiss her by grabbing her neck and pushing his face towards hers. 63 The court found this incident sufficient to satisfy the statute due to the particular environment of this workplace. 64 In Schemansky v. California Pizza Kitchen, Inc., 65 the court followed the Radtke reasoning and required the plaintiff to establish that harassing comments made by her co-workers had either the purpose or effect of substantially interfering with the plaintiff s employment. 66 The plaintiff in this case did not establish substantial interference in her employment through her complaint of three incidents having to do with preparation of the plaintiff s food and one incident of improper name-calling. 67 The court found that these incidents were not sexual in nature and did not substantially interfere with her working environment. 68 Overall, while peppered with reliance on the federal statute, Michigan cases differentiate the Civil Rights Act and decide cases according to the clear intent of the Michigan legislation. The Michigan Supreme Court interprets this legislative intent to require a finding of substantial interference with a plaintiff s work environment in order to satisfy a claim of hostile work environment sexual harassment. 69 62 See id. At 372, 501 N.W. 2d at 158. 63 Id. at 376, 501 N.W.2d at 159. 64 See id. (explaining that due to the close knit nature of the plaintiff s working environment a single act of sexual harassment sufficiently interfered and created a hostile work environment). 65 Schemansky v. California Pizza Kitchen, Inc., 122 F. Supp. 2d 761 (E.D. Mich. 2000). 66 Id. 122 F. Supp.2d at 772, quoting Radtke at 398, 501 N.W.2d at 169. 67 See id. at 776-77. 68 See id. 69 E.g., Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155. 11
Application of the Discretionary Standard i. The Environment Must be both Objectively and Subjectively Perceived as Hostile In order to prove that an employer s conduct creates a hostile work environment under Title VII, the employee must further show that her work environment could be perceived as both objectively and subjectively offensive, [an environment] that a reasonable person would find hostile or abusive, and one that [she] in fact did perceive to be so. 70 This requirement is meant to separate truly hostile and harassing behavior from the more benign behavior that may occur in the workplace. Thus, a supervisor may make a sexually based comment that offends his female employee but does not create a hostile work environment. 71 When an employer maintains a steady discourse of sexually based comments, coupled with offensive touching, the employer s behavior would most certainly be objectively and subjectively perceived as creating an abusive environment for an employee. 72 ii. The Environment Must be Assessed under an Objective Reasonableness Standard Michigan courts also aim to distinguish between somewhat innocuous conduct and more dangerous harassment. The Michigan Supreme Court explained in Radtke that [a]n objective reasonableness standard must be utilized to determine whether a hostile work environment exists under the Michigan Civil Rights Act. 73 This standard echoes the federal standard and functions in similar fashion to ensure that an employee is bringing a true hostile work environment claim. Using this standard, infrequent rude comments 74 or a few unwanted love letters 75 do not create a 70 Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). 71 See id. At 788. 72 See id. 73 Radtke, 442 Mich. at 398, 501 N.W.2d at 169. 74 See Schemansky v. California Pizza Kitchen, Inc., 122 F. Supp. 2d 761. 12
hostile work environment. However, use of physical force or an attempt to kiss an employee certainly can create such an environment. 76 Numerous types of behavior can create a hostile work environment. Each sexual harassment case is extremely fact sensitive. However, as a general rule, an employer s conduct creates a hostile work environment when it crosses the line of normal everyday interactions between males and females into the realm of a patterned or continuous behavior that can be clearly perceived by the victim or the reasonable observed. How Should an Employer Handle Sexual Harassment in the Workplace? The employer is the employee s first resource and best line of defense against sexual harassment in the workplace. Title VII and the Michigan Civil Rights Act are not only meant to define workplace sexual harassment but also to educate employers in handling this issue. Title VII and surrounding case law focus primarily on prevention 77 while Michigan law focuses on the employer s reaction to the harassment. 78 Under federal law, employers are encouraged to take preventive measures and avoid the occurrence of sexual harassment. To do this, an employer should post a policy against sexual harassment, provide a mechanism for reporting such conduct, allow the complaint process to remain anonymous, and take corrective steps once the complaint has been made. 79 Lockard v. Pizza Hut presents an excellent example of the types of preventive measures an employer should take. In Lockard, the employer published a bulletin about the company s anti-harassment policies and the available complaint procedure. The employer also made anti- 75 See Hartleip v. McNeilab, Inc., 83 F.3d 767 (6th Cir. 1996). 76 See Champion v. Nationwide Sec., Inc., 450 Mich. 702, 545 N.W.2d 596 (1996); Radtke v. Everett. 77 See Burlington Indus., Inc. v. Ellerth, 524 U.S. 764. 78 See Schemansky, 122 F. Supp. 2d at 772. 79 See Barnes v. Costle, 561 F.2d 983, 1000-01 (D.C. Cir. 1977). 13
sexual harassment training a part of each employee s orientation. 80 Training for the company s supervisors encouraged quick response to any sexual harassment complaints and even included illustrations of how to handle hypothetical sexual harassment situations. 81 As a result, Pizza Hut created a model anti-harassment policy with an effective grievance procedure that is available to its employees. The main focus of Michigan s Civil Rights Act is to encourage a swift, appropriate reaction by an employer. Radtke explains that an employer should take prompt and appropriate remedial action in dealing with sexual harassment in the workplace. 82 This response is perfectly demonstrated in Schemansky v. California Pizza Kitchen Inc. In this case the manager skillfully handled each complaint of harassment from his employee. The first time Ms. Schemansky mentioned negative conduct by her co-workers, her supervisor immediately instructed those co-workers to treat her with respect. 83 The supervisor also held a staff meeting after this incident to review California Pizza Kitchen s sexual harassment policy with his employees. 84 When a second incident of harassment occurred, the supervisor again responded quickly and suspended one employee who harassed Ms. Schemansky. The supervisor also met privately with Ms. Schemansky on each occasion to discuss her concerns and attempt to improve her situation. 85 This supervisor s reaction was an appropriate response to a report of sexual harassment under Michigan s Civil Rights Act. Unfortunately, as both restaurants learned, an employer cannot completely control the work environment. Nonetheless, an employer has both the duty and the motivation to create 80 See Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) (requiring employees to sign a document stating that they received and reviewed the company policies). 81 See id., 162 F.3d 1062, 1066. 82 Radtke v. Everett, 442 Mich. at 396, 501 N.W.2d at 168, quoting Downer v. Detroit Receiving Hosp., 191 Mich. App. 232, 234, 477 N.W.2d 146, 168. 83 See Schemansky, 122 F. Supp. 2d at 766. 84 See id. at 766-67. 85 See id. at 766, 768, 769. 14
prevention policies and deal with situations of sexual harassment. An employer can be held automatically liable for quid pro quo sexual harassment under both federal and Michigan law 86 and, under federal law, can oftentimes be held vicariously liable for hostile work environment sexual harassment. 87 But both statutes also provide a defense to liability in a hostile work environment case. Under federal law an employer may show that they have exercised reasonable care to avoid harassment and to eliminate it when it might occur. 88 Michigan law likewise provides an almost identical defense in that an employer may avoid liability [in a hostile work environment case] if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. 89 This affirmative defense provides an excellent motivation, beyond the requirements of Title VII and the Elliott- Larsen Civil Rights Act, for an employer to avoid and manage sexual harassment in the workplace. Thus, under either statute, the employer should make every reasonable effort, following the suggestions of the courts, to prevent and appropriately handle sexual harassment in the workplace. Conclusion Several of the cases mentioned have described sexual harassment as a pervasive problem in the American workplace. The hope today, nearly forty years after the passage of Title VII, and almost thirty years after the adoption of the Elliott-Larsen Civil Rights Act, is that the workforce would have seen a decline in this type of offensive behavior. However, various forms 86 See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) (holding employer strictly liable for actions of its supervisors amounting to sexual discrimination or harassment resulting in tangible job detriment to subordinate employee); Champion v. Nationwide Sec., Inc., 450 Mich. 702, 545 N.W.2d 596 (1996) (Civil Rights Act imposes strict liability on employers for quid pro quo sexual harassment committed by supervisory personnel). 87 See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (employers are not automatically liable for sexual harassment b their superiors, but absence of notice to an employer does not necessarily insulate that employer from liability). 88 Faragher, 524 U.S. at 805. 89 Chambers v. Trettco, Inc., 463 Mich. 297, 312, 614 N.W.2d 910, 916 (2000) (quoting Downer v. Detroit Receiving Hosp., 191 Mich.App. 232, 234, 477 N.W.2d 146, 168 (1991)) (alteration in original) (citation omitted). 15
of conduct can potentially rise to the level of sexual harassment without prudence and caution. Sexual harassment can be found in an obvious situation where an employee loses his or her job because of his or her refusal to submit to a supervisor s sexual demands, or it can be found in actions as commonplace as sexually discriminatory language. An employer must take on the role of preventing and policing to protect themselves and their employees. Through strict and detailed prevention policies, coupled with effective response procedures, employers can strive to dramatically reduce or eliminate sexual harassment in the workplace. 16