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Any employee who has spent a fair amount of time in the workplace knows you will find people that are – politely speaking – simply jerks. That reality, however, becomes a nightmare if that jerk is your manager.  

But fortunately for companies, an employee’s nightmare does not always create a cause of action for a hostile work environment claim. A recent case from the Michigan Court of Appeals highlights this fact. 

Background of the Dismissal of Hostile Work Environment Claim based on Sexual Harassment. 

In Kalich v. AT&T Mobility, LLC (PDF), the plaintiff sued his former employer under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) alleging that his supervisor created a hostile work environment by subjecting him to comments that constituted sexual harassment. The trial court granted the defendant employer’s motion for summary judgment because plaintiff failed to produce sufficient evidence of each element of his sexual harassment hostile work environment claim.

The Court of Appeals Affirms the Dismissal of the Plaintiff’s Hostile Work Environment Claim.

The Court of Appeals agreed with the trial court’s dismissal. In reaching this decision, the Court dissected the plaintiff’s claim as follows. 

First, the court found that plaintiff failed to show the harassment was gender-based. In fact, plaintiff acknowledged in his deposition that he believed his supervisor made the at-issue derogatory comments because the male supervisor knew or suspected that plaintiff was gay. But under Michigan law, similar to Title VII, sexual orientation is not a protected classification.

Second, the court noted that plaintiff failed to show that he was subjected to unwelcome sexual conduct or communication. Instead, the Court characterized “the vast majority of the comments” relied upon by the plaintiff could not be construed as sexual in nature.

Examples include the supervisor referring to him by various female names, or remarking about his “cute” dog, or remarks about the fit of plaintiff’s clothes, his sewing abilities, or that he was “wasting away” and “looked like a girl.” In other words, the Court concluded such comments did not inherently pertain to sex. The trial court described the conduct as “crude,” “bullying,” and “despicable.” The Court of appeals tempered its assesment by noting that these comments were “unprofessional and perhaps subjectively hurtful, embarrassing, or offensive.” But, regardless of the characterization, both courts reached the same decision – these comments were not actionable under ELCRA.

Third, the Court also dispensed with a single remark by the supervisor that was sexual in nature; the supervisor referred to the plaintiff as a necrophiliac. The court noted that except “in the case of extreme incidents such as rape or sexual assault, a single, isolated event is typically insufficient to create a hostile work environment.” Accordingly, the court concluded that a “reasonable person” would not perceive the supervisor’s “necrophiliac” remark as being so severe and extreme as to create an objectively hostile work environment. 

Fourth, the Court found that plaintiff did not show that the defendant employer failed to adequately rectify the problem upon receiving notice; Upon the initiation of the investigation, the employer:

  • Instructed the supervisor to have no further contact with the plaintiff; and 
  • Ultimately and permanently reassigned the supervisor to a different region. 

The court concluded that taken together this resolution was designed to prevent future harassment of the plaintiff, and thus defendant took adequate remedial measures and there was no basis upon which to impose liability against the employer for the actions of the supervisor.

Take-aways for Employers – A Plan for Prompt and Appropriate Remedial Action

If only eliminating hostile work environments in place of creating a positive and productive workplace environment was as simple as implementing a “No A*sshole Rule.” But it is not. 

The next best option for employers – and an option that is critical for avoiding drawn out litigation – is having a meaningful policy for investigating and promptly taking appropriate remedial action in response to workplace discrimination.

This is because, as the above case illustrates, under Michigan and federal law, an employer may avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. Although for a recent case and great write up of when this defense may not be available to an employer, see Daniel Schwartz’s Second Circuit = The Avengers? Judges Create Alter Ego Liability, which discusses how a superivor could be a “proxy” for the employer, or its alter ego, and therefore eliminating the employer’s ability to use this affirmative defense.

What type of prompt and appropriate action should an employer take in response to a hostile work environment allegation? This answer will depend upon a number of factors and employers should collaborate with an experienced employment lawyer to answer this question. That answer, however, should focus on implementing a response that is intended to reasonably prevent future harassment of an individual plaintiff.