Michigan employees are protected from workplace harassment in both the private and public sectors through federal and state antidiscrimination statutes. Michigan’s Elliott-Larsen Civil Rights Act and the Title VII of the Civil Rights Act both recognize workplace harassment as a form employment discrimination. Michigan’s Elliott-Larsen’s Act protects against discrimination for religion, race, color, national origin, age, sex, height, weight, or marital status, while Title VII protects against discrimination based on race, sex, color, or national origin. The Supreme Court has also held that Title VII prohibits discrimination based on sexual orientation, gender identity, and transgender status.
It is well-understood that when an employee complains of harassment by a supervisor, the employer may be vicariously liable for a hostile work environment, and an investigation, therefore, should follow. But where the harassment is committed by a coworker, the employer is liable only if it knew or should have known of the harassment and failed to implement prompt and appropriate corrective action. Regardless of the differing standards, when employees claim they are being harassed by a coworker, employers should investigate them as promptly and seriously as claims of harassment by a supervisor.
In a recent 6th Circuit Court of Appeals case, Jane Doe v. City of Detroit, Case No. 20-2029 (July 9, 2021), the plaintiff employee underwent gender reassignment surgery while employed by the City of Detroit then made claims of harassment by an unknown perpetrator. The case illustrates the importance of addressing employee’s claims of harassment as soon as possible. Not only it is important in order to make the workplace safe for all employees, the employers’ response will make or break a finding on liability of the employer.
The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified[1]. By doing so, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace. To find liability, the employer’s response to a coworker’s harassment must “manifest indifference or unreasonableness in light of the facts the employer knew or should have known.” The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.
Steps that establish a base level of reasonably appropriate responsive action may include:
- Speaking with the specific individuals identified
- Following up with the complainant
- Reporting the harassment to others in management
- Taking appropriate corrective action[2]
Employers that take the above steps put themselves in a favorable position should a dispute later arise about their response to a complaint of harassment—by a supervisor, coworker, or anyone else.
[1] Collette v. Stein-Mart, Inc. 126 F. App’x 678, 686 (6th Cir. 2005).
[2] Waldo v. Consumers Energy Co., 726 F. 3d 802, 814 (6th Cir. 2013)
