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Oct 2003
01
October 01, 2003

Michigan Supreme Court Narrows Scope of Sexual Harassment Law

Five years ago, in Koester v Novi, 458 Mich 1 (1988), the Michigan Supreme Court ruled that gender-based harassment constitutes sexual harassment under the Elliott-Larsen Civil Rights Act even where the harassing conduct is not sexual in nature. On June 11, the Supreme Court reversed its earlier decision in Koester and held that conduct must be sexual in nature to constitute sexual harassment under the Civil Rights Act.

In Haynie v State of Michigan, the plaintiff claimed that a female police officer had been subjected to hostile and offensive comments about her gender, but admitted that the comments were not overtly sexual in nature. Focusing on Elliott-Larsen's specific definition of sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature," the Supreme Court concluded that this type of nonsexual gender-based conduct does not constitute "sexual harassment" under Michigan law.

Sexual harassment is just one type of sex discrimination, and although gender-based conduct that is not sexual in nature does not constitute sexual harassment, the Haynie court cautioned that such conduct may still constitute sex discrimination. So why is the decision important? Because a plaintiff must prove that s/he suffered a tangible, adverse employment action to prove sex discrimination, whereas the plaintiff need not prove this element to establish a sexual harassment claim. In other words, it is often harder to prove a sex discrimination claim than a sexual harassment claim. Therefore, the Haynie decision significantly narrows the scope of sexual harassment under the Elliott-Larsen Civil Rights Act.

Haynie puts Michigan law in contrast to the federal Civil Rights Act (Title VII), where gender-based conduct that is not sexual in nature may constitute sexual harassment, and as such, the decision could have a significant effect on plaintiffs for several reasons. First, Title VII applies only to employers with 15 or more employees. Second, to proceed under Title VII a plaintiff must first file a charge of discrimination with the EEOC within 180 days of the alleged discrimination, and so a plaintiff who waits more than six months will lose her right to sue under Title VII. Elliott-Larsen, in contrast, has a three-year statute of limitations. Finally, although most employees work for employers who are large enough to be covered by Title VII, employees often do not want to sue under Title VII because the federal courts are perceived as less friendly to plaintiffs.

It is important to remember that even after Haynie, gender-based conduct in the workplace may still constitute sex discrimination and can result in serious employee morale problems and significant legal liability. Employers should therefore always be vigilant about preventing such conduct in the workplace.

For more information, please contact Rob Dubault at rdubault@wnj.com or by phone at 231.727.2638.
 

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