Michigan Court Adopts New Approach To Sexual Harassment Cases

In Chambers v Trettco, Inc, the Michigan Court of Appeals adopted the principles of employer liability for sexual harassment by a supervisor announced by the U.S. Supreme Court in June 1998 in Ellerth and Faragher.

In Burlington Industries, Inc v Ellerth and Faragher v Boca Raton (discussed in our Summer 1998 edition), the U.S. Supreme Court announced a new approach to sexual harassment cases involving harassment by a supervisor. First, the court determines whether the employee has experienced a tangible employment action, such as demotion, undesirable reassignment, or discharge. If so, the employer is liable for harassment by a supervisor, regardless of existing measures to prevent and correct harassment, because an employment action requires an official act of the company for which the employer should not be allowed to escape liability.

If there is no tangible employment action, the court examines whether there was a hostile work environment, i.e., whether the alleged harassment was severe and pervasive and created a hostile or abusive environment. If so, an employer can avoid liability if it exercised "reasonable care to prevent and correct promptly" any sexually harassing behavior and the employee failed to avail herself of preventive or corrective opportunities provided by the employer.

In Chambers, a woman hired to work as a temporary cook was assigned to work in Ann Arbor. During her first four days there, a supervisor also temporarily assigned to the Ann Arbor location allegedly engaged in numerous incidents of egregious harassment, including inappropriate touching and oral descriptions of sexual acts he wished to engage in with her. The cook expressed some discomfort with this job assignment to the regional manager in a telephone conversation during this period, but did not file a formal complaint until the regular supervisor returned the following week. The employee was never informed of any investigation or any results of an investigation from her complaint. The jury found the employer liable for the supervisor's harassment.

The appeals court affirmed in a split decision. It first determined that the employee suffered no tangible job action, so the employer was not automatically liable. The court next determined that the harassment was sufficiently severe and pervasive to create a hostile and intimidating environment. Finally, the court examined whether the employer failed to take appropriate corrective action.

The majority viewed the cook's expression of discomfort to the regional manager as sufficient notice to trigger the employer's obligation to investigate and remedy the alleged harassment and affirmed the jury verdict. The dissent did not. "I do not share the majority's eagerness to regard the regional manager's vague understanding that plaintiff was unhappy about something as triggering defendant's duty to take action."

This case highlights the need to investigate promptly all reports of possible supervisory misconduct, even if the report is not made formally and/or is not made through established procedures.