Sexual Harassment

One of the most common types of employee lawsuits is one for sexual harassment. Sexual harassment in the workplace is prohibited by federal law, and most states (including Michigan) have laws that prohibit sexual harassment in the workplace. A victim of sexual harassment has legal recourse to get remedial action to stop the sexual harassment, and can also recover money damages from the employer for lost wages, benefits, and mental and emotional distress. Sexual harassment cases have produced some of the largest jury verdicts in Michigan and across the country.

Sexual harassment defined: An employee may be the victim of sexual harassment if she (or he) is the subject of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature, and either:

1. Submission to the advances, requests, conduct or communication is made a term or condition of employment, either explicitly or implicitly, or
    
2. Submission to or rejection of the advances, requests, conduct or communication by the victim is used as a factor in decisions affecting the victim’s employment, or
    
3. The advances, requests, 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.

Applied to the workplace, both federal and Michigan law recognize two types of sexual harassment: (1) quid pro quo harassment (which is Latin for “this for that”), and (2) harassment that creates an offensive or hostile work environment.

Quid Pro Quo Sexual Harassment: This is supervisory misconduct, where a supervisor uses his (or her) position of authority or power to cause the victim to suffer a tangible adverse employment action as the result of the victim’s rejection or submission to the supervisor’s unwanted advances, requests or other sexual conduct or communication. This form of sexual harassment is most dangerous for the employer, because there is strict (meaning automatic) vicarious employer-liability to the victim for damages caused by the supervisor’s quid pro quo sexual harassment.

Hostile or Offensive Work Environment Sexual Harassment: This type of sexual harassment covers misconduct of any co-worker (supervisory or non-supervisory), whose unwelcome sexual advances, requests, conduct and/or communication becomes severe and pervasive to the point that it interferes with the victim’s employment or creates an intimidating, hostile or offensive work environment. However, there is no vicarious employer-liability for this form of sexual harassment unless the victim can prove that the employer knew (or should have known) the sexual harassment was occurring, and did not take prompt and effective remedial action to end the sexual harassment.

• If the employer has a policy that prohibits sexual harassment and a procedure that encourages employee-victims of sexual harassment to report or complain about the harassment to someone in upper management, the employee-victim must utilize that complaint procedure to give the employer formal notice and the opportunity to remedy the sexual harassment.
   
• If the employee-victim fails to utilize the complaint procedure, and otherwise fails to notify the employer that this kind of sexual harassment is occurring, most federal and state courts are in agreement that the employer is not liable for the sexual harassment or damages suffered by the employee-victim.

click here for a list of Sommers Schwartz attorneys who specialize in Sexual Harassment

Reprinted with permission
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