Common examples of harassment include:

• Displaying offensive or pornographic images
• Making obscene or indecent gestures
• Making repeated unwelcome advances
• Using vulgar language or telling inappropriate jokes
• Remarking on another’s sexual attractiveness
• Making improper references to one’s own sexual attributes
• Touching another person in a way that is unnecessary and undesired
• Touching oneself in a sexual way in front of another person
• Displaying traditionally racists paraphernalia — e.g., nooses, swastikas — on the job without a work‑related reason

Federal and state anti-discrimination statutes protect employees from workplace harassment because of these protected characteristics. Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and the federal Title VII of the Civil Rights Act of 1964 (Title VII) both recognize workplace harassment as a form of employment discrimination. The ELCRA prohibits employment discrimination based on race, sex, color, age, religion, national origin, height, weight, or marital status. Title VII prohibits employment discrimination based on race, sex, color, religion, or national origin. Courts have also interpreted Title VII’s prohibitions to prohibit harassment based on these protected classifications. The Age Discrimination in Employment Act of 1967, the Michigan Persons with Disabilities Civil Rights Act, and the Americans with Disabilities Act of 1990 also prohibit harassment.

Sexual harassment generally comes in two forms: (1) quid pro quo harassment, where submission to or rejection of sexual conduct or communication is used as a factor in decisions relating to an individual’s job benefits, and (2) harassment that creates an offensive or hostile environment. The first proof any claimant will have to show is that the harassment was not welcome — e.g., the claimant did not participate in it willingly and overall objected to the treatment.

Quid Pro Quo Harassment

To establish a case of quid pro quo sexual harassment under Title VII or the ELCRA, a plaintiff must prove (1) that he or she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, and (2) that the employee’s submission to the unwelcome advances was an expressed or implied condition for receiving job benefits or that the employee’s refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment.

Hostile Environment Sexual Harassment

Hostile environment sexual harassment claims differ from quid pro quo claims in that there is no need to prove the denial of any job benefit. Instead, a plaintiff must show that the alleged harassment is so severe or pervasive that submitting to a hostile environment has effectively become a term or condition of employment.

A claimant must prove the following five elements to establish a case of hostile work environment sexual harassment under the ELCRA or Title VII: (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 (employer knowledge without adequate remedy).

All employees are inherently members of a protected class in hostile work environment cases, because all persons may be discriminated against on the basis of sex. To meet the second element, however, a plaintiff must additionally prove that he or she would not have been subjected to the sexual conduct or communication but for the fact of his or her sex.  Substantial interference with the job is the third element and it is often the crux of the case – generally a long and severe pattern will be considered actionable whereas one-time incidents or offhand remarks will not. The factual scenarios are endless, however. Lastly, a key difference in hostile environment cases is that the employer must have notice. Decisions have held that an employer must have had notice of an alleged hostile environment and failed to take appropriate prompt remedial action before it could be held liable.

Racial & Other Protected Classification Harassment

Racial and other protected classification harassment is similar to hostile environment sexual harassment in terms of elements of proof. To establish a claim of harassment, a plaintiff must establish that (1) the plaintiff was a member of a protected class; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on the protected trait; (4) the harassment had the effect of unreasonably interfering with the plaintiff’s work performance and creating an intimidating, hostile, or offensive work environment; and (5)  respondeat superior liability (employer knowledge without adequate remedy) existed.

If you are the victim of harassment, you do not have to suffer or “deal with it.” At The Schipper Law Group, we will explain all of your rights, explore every option, and provide you with aggressive representation when needed. We have a proven track record of achieving successful outcomes inside and outside of the courtroom. Contact us today by filling out the form here or by calling us at (248) 729-2414.