2 November 2017

“Me Too:” How the Law Helps Victims of Workplace Sexual Harassment Fight Back

Collin H. Nyeholt, Attorney at Law

 

Harvey Weinstein has become the poster child for abuse of power for personal sexual gratification.  Weinstein co-founded Miramax in the 1970’s.  In its 40-year run, Miramax has created such iconic films as Pulp Fiction, The Crying Game, Good Will Hunting, Gangs of New York, and Sex Lies and Videotape.  The rewards to Weinstein have been substantial.  In 2015, Forbes estimated that the Weinstein Company was worth about $150 million.  Weinstein was a powerful man with access and influence over young actresses.  Weinstein has, by accounts too numerous to ignore, frequently and flagrantly abused this power to take sexual advantage of women.  To date, no less than 45 women have come forward.  Their allegations range from “casting couch” situations -where Weinstein pressured hopeful actresses for sex in exchange for roles- to out-and-out sexual assaults and rapes.  Worse, we see allegations that others in Weinstein’s empire helped him get away with it.  Roy Price, Amazon Studios’ head, resigned after actress Rose McGowan’s allegations that she had told him Weinstein had raped her and he did nothing.

Weinstein may be the most famous example, but he is far from the only one.  The “me too” movement has given voice to countless victims of similar circumstances. Senator Elizabeth Warren recounted a story when, as a young law professor, a senior faculty member assaulted her at work.  “[H]e slammed the door and lunged at me.  It was like a bad cartoon.  He’s chasing me around the desk, trying to get his hands on me.”[1]  Senator Claire McCaskill related a story where, as a young state legislator, she approached the speaker for the Missouri House of Representatives about getting a bill she had proposed out of committee.  She finished her presentation and asked if he had any advice for how to get the bill out of committee.  He responded “did you bring your knee pads?”[2] 

Victims need to know that they are not alone.  They need to know that if they come forward, they will be taken seriously.  And, they need to understand the legal tools that they have at their disposal to fight back.  In representing people in these circumstances, a lot of the same questions tend to come up.  This article, it is hoped, will provide some answers.

 

 

What laws protect me from at work sexual harassment and assault?

Title VII of the Civil Rights Act of 1964 protects against at-work sexual harassment.  It is a federal law and it applies to any employer with 15 or more employees.   In addition, many states have civil rights laws that also make sexual harassment at work unlawful.  Michigan, for instance, has an act called the Elliott-Larsen Civil Rights Act.  The ELCRA applies to any employer with one or more employees.

In cases of physical assault, there are additional remedies under civil and criminal law.  The criminal law of most states prohibits physical assault and, more to point, sexual assault.  In addition, the civil law of most states allows for victims to proceed with private suits under common law theories of liability, such as assault, battery, and false arrest.

 

What is “sexual harassment” in the eyes of the law?

Many potential sexual harassment plaintiffs are surprised to learn that there is a difference between what many of us would consider “sexual harassment” and what the law actually says is illegal and actionable.  As the Equal Employment Opportunity Commission tells us, “[i]t is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”[3]  It may also include “offensive remarks about a person’s sex” such as “making offensive comments about women in general.”[4] Finally, “[a]lthough the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”[5] State law civil rights acts tend to mirror Title VII’s definition.  Michigan Courts, for instance, have fairly consistently held that the ELCRA should borrow from Title VII’s interpretation of “sexual harassment.”

Say, for instance, your supervisor tells one offensive, off-color joke at the company Christmas party.  This probably would not be actionable as sexual harassment.  This would probably be considered an “isolated incident.”  The courts apply a concept called “stray remark” which gives harassers a pass on isolated offensive statements. In contrast, say a supervisor tells off-color jokes every day at the office.  This could be actionable harassment because it is not a one-time transgression, but a daily interference with your ability to work. 

Now, imagine that your supervisor has been respectful to you the entire time you have worked together.  No jokes.  No touching.  No comments. He’s been a good guy.  One day, he sits down next to you on the couch in the break room at work.  He puts his arm around you, and tells you that he has “always had feelings for you.”  You remind him you are both married and ask him to let you leave.  He won’t.  He holds you down and tries to kiss you.  Eventually, you get away.  Is this a “stray remark?”  No!  Basically, this was the situation in Radtke v. Everett, a case the Michigan Supreme Court considered under the ELCRA, with Title VII cases as precedent.  The Court noted the isolated incident concept, but found that given the severity of this particular isolated incident, the defense would not apply. 

The takeaway from all of this is this:  One isolated incident of an offensive comment would probably not be legally actionable as sexual harassment.  Several inappropriate comments over a period of time would.  Physical contact may be sexual harassment, even if it is only one time.

 

When does my company become liable for sexual harassment by other employees or customers?

Generally, in order for the company to be liable for sexual harassment by a coworker, you have to prove that the company knew about the harassment and failed to take preventative or corrective measures.  The same rule applies for harassment by customers.  Once you make your employer aware that sexual harassment has happened, or is continuing to happen, they are obligated to take actions to put a stop to it.  If they don’t, and it continues, they are liable. 

If a manager is involved in the harassment, however, the rules are different.  A company acts through its managers.  So, if a manager is the harasser, the company will be liable for their actions.

Here’s an example of coworker harassment.  Say you are working for a seller of home improvement supplies.  You work in the paint department.  One day, the head of the kitchen department comes up behind you and grabs your back side.  Hard.  As he does so, he leans in and tells you “next time, I’ll lick my finger.”  You complain to HR at your store.  Seven days later, they still haven’t done anything.  You are still reporting to work.  The man who assaulted you is still in his spot.  Finally, you complain to a different store’s HR.  Within days, the manager is fired. Do you have a claim?  The answer is “yes.”  First and foremost, the department head is a manager so the store is liable for what he did.  The store may argue that he was not your direct manager, and so the rules that apply to co-worker harassment are in play.  Therefore, they argue that they don’t have liability because they took appropriate actions to respond to your complaint.  However, you have a claim because the store did not act immediately and required you to work under that manager for a week before they did anything.  The case upon which this fact pattern was based settled prior to trial, but it is anticipated that the Court would have ruled favorably.

Here’s an example of customer harassment.  Say you’re a waitress at a popular restaurant.  You offer a customer a complimentary birthday desert.  He asks “how ‘bout a birthday spanking?”  You tell your manager.  He goes and hands the customer his check and asks him to leave.  Claim?  No.  Even though the customer engaged in sexual harassment, your manager took appropriate remedial action.  In contrast, what if all of the customers do this sort of thing daily?  And, you’ve complained to your manager several times and he just laughs and says that’s part of it.  Now, the customer harassment is so pervasive that dealing with it has become a term of your employment.  Management knows about it and refuses to do anything.  You have a potential claim.

 

How do I fight back?

There is a criminal component to physical assaults, battery, and sexual assault.  Private attorneys cannot initiate criminal proceedings.  That role is left to law enforcement: the police and prosecutor’s office.  If you decide to proceed against the wrongdoer criminally, the first call would be to the police. 

The first step you should consider is complaining to your company’s HR Department.  HR is required to investigate, and take remedial action, against sexual harassment.  HR professionals are trained to identify sexual harassment and to respond.  Or, at least, they should be.  If they do not appropriately respond to your concerns, you may use that fact to strengthen your legal position later by showing that the company knew about the harassment and did not correctly respond.   

You may consider a complaint to either the federal Equal Employment Opportunity Commission (EEOC) or a state level civil rights agency.  In Michigan, for instance, we have a state level agency called the Michigan Department of Civil Rights (the MDCR) that investigates allegations of sexual harassment for the state.  The civil rights agency will investigate the charge and try to resolve the complaint with the employer.  The agency may elect to file a formal lawsuit against the employer on your behalf.  However, the agency has limited resources to file private suits and often elects not to.  If that happens, the agency will issue you a “right to sue” letter which gives you the right to file a private lawsuit.

You also have the option to file a private civil rights lawsuit in the courts.  Title VII allows you to bring your suit in federal court, but you have to first have gone through the agency complaint process before you can.  Some state law civil rights acts do not require going through the agency before you can file a private suit.  Michigan’s ELCRA, for instance, does not require the agency complaint before you can file a private lawsuit.  But, if you proceed under the state law, you cannot file your complaint in federal court and you would have to file in state court.

 

How long do I have to bring charges?

All legal charges are subject to a statute of limitations.  This means that if you do not make your claim to a court, or to an enforcing agency, within a set amount of time you lose it forever to the running of time no matter the merits of the charge.  Courts have, traditionally, been very stingy when it comes to allowing people to bring charges after the limitations period is over.  Emotional distress from the incident, unfortunately, is not recognized as a defense to the limitations period.

For criminal actions, the statute of limitations varies.  If you believe you have been the victim of criminal conduct, you should contact law enforcement without delay.

For complaints to the EEOC for civil sexual harassment in violation of Title VII, you have 90 to 180 days to bring your charge, depending on whether there is a state level agency that investigates charges.  For states that do not have a state level enforcement agency, the time is 90 days to bring a charge.  For states that do, it is 180.

For civil sexual harassment charges under state-law civil rights statutes, the timeframe varies.  In Michigan, for charges under the ELCRA, you have three years after the date of the incident that gave rise to the charge.

A caution, though, is that many employers shorten the limitations period for bringing a claim by their employment contracts. There will be a provision in the employment manual, or other documentation the employer gave you during your employment, that says you agree to bring all charges against the company within a certain amount of time which is usually shorter than the statutory limitations period.  Courts have upheld contractual limitations periods of as short as five months.

The Rolling Stones had it wrong: time is NOT on your side!  It is very important that if you believe you are the victim of sexual harassment you take action sooner, rather than later.  Otherwise, you can lose your claim before it begins.

 

Can my employer retaliate against me if I file a complaint?

No!  It is absolutely, 100% illegal, to retaliate against a person for making a complaint about sexual harassment.  Title VII explicitly provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”[6]  Michigan’s ELCRA also outlaws retaliation for making a complaint and the interpretation of the ELCRA follows Title VII’s.

The law protects employees from retaliation because they have complained to HR about harassment.  It protects employees from retaliation because they have complained to the EEOC about harassment.  It protects employees from retaliation because they have filed a lawsuit about harassment.  It protects the victim of the harassment.  It protects any of their witnesses. 

Cases interpreting the anti-retaliation provisions tend to run very heavily in favor of the complaining individual who has been retaliated against.  The logic is that in enacting Title VII, and the corresponding state statutes, the legislature wanted to encourage people to make complaints and oppose sexual harassment.  For this reason, we give great weight to claims of retaliation.

It is illegal to retaliate against the employee herself.  What if your employer retaliates against your husband because you complained?  Or your family?  In one recent case, the Supreme Court considered a situation where a woman complained about at-work harassment and, in response, the company fired her fiancée.  The Supreme Court ruled that Title VII’s anti-retaliation provisions extended all the way to this claim.[7]  So, not only does Title VII protect you from retaliation, it also protects your loved ones from suffering retaliation because of your actions.

How bad does your employer’s response have to be to be considered “retaliation?”  Do they have to fire you?  Dock your pay?  What about at-work harassment?  What about moving you to an unfavorable shift, or a different job site, but at the same pay?  The Supreme Court has ruled that an action is unlawful retaliation if it “would have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Caselaw has been quite liberal in finding actions to be retaliatory.  All of the instances above have been held, by one court or another, to be actionable as retaliation.

What if you lose on your sexual harassment allegations?  Can your employer retaliate then?  No!  The courts have consistently held that a claim for retaliation can prevail, even if the underlying allegations of sexual harassment are unsubstantiated.  The logic is, who would make complaints if they knew they could suffer retaliation if they eventually lost?  Here’s a good example.  Say you are a Sergeant in the State Police.  One of the detectives in your post comes to your home one night and sexually assaults you.  Internal Affairs investigates.  IA finds that there is not enough evidence to charge the detective criminally, but that there’s also not enough evidence to exonerate him either, so the charges against him are dismissed.  After the investigation, the commander for your district transfers you to the other side of the State because of the “hostile work environment” that your complaints created for the detective.  This is an example of a claim where the underlying allegations of sexual harassment did not prevail, but the claim for retaliation was viable.  In the real life case on which this was based, the court dismissed an allegation of sexual harassment, but ultimately entered a jury verdict in the sergeant’s favor on Title VII retaliation. 

The takeaway from all of this is that your boss cannot retaliate against you for reporting or opposing sexual harassment.  Period.  If you suffer retaliation of any sort after reporting sexual harassment, or supporting someone who has, you are in an excellent position to pursue a claim. 

 

 

Collin Nyeholt is an Associate Attorney at the Law Offices of Casey D. Conklin, PLC.  He is licensed in the State of Michigan.  A seven-year practitioner of civil rights and employment discrimination law, he has prosecuted a significant number of civil lawsuits for employment discrimination -including sexual harassment, sexual assault, and retaliation- in both state and federal court.  His accomplishments in this area include a $350,000 jury verdict in favor of a State employee who was retaliated against for reporting sexual assault and opposing sexual harassment in the workplace.[8]  He can be reached at:  4084 Okemos Road, Suite B, Okemos, MI 48864, (517) 332-3390, collin@caseydconklin.com.    

 

[1] “Sen. Elizabeth Warren: I was sexually harassed as a young law professor,” Weiss, Debra Cassens, ABA Journal, October 23, 2017, available at http://www.abajournal.com/news/article/elizabeth_warren_says_she_was_sexually_harassed_as_a_young_law_professor/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email, accessed 10/27/2017.

[2] “Senators say #Me Too: McCaskill, others share their stories of sexual harassment,” Wang, Amy B., The Washington Post, October 21, 2017, Available at: https://www.washingtonpost.com/news/powerpost/wp/2017/10/21/senators-say-metoo-mccaskill-others-share-their-stories-of-sexual-harassment/?utm_term=.2b77478594ff, accessed 10/27/17.

[3] https://www.eeoc.gov/laws/types/sexual_harassment.cfm accessed 10/27/17.

[4] Id.

[5] Id. 

[6] 42 USC § 2000e-3(a).

[7] Thompson v. North American Stainless LP.

[8]“Big verdict for ex-sergeant who sued state police over sex harassment claim,” Agar, John, MLive, April 28,2016 available at http://www.mlive.com/news/grand-rapids/index.ssf/2016/04/jury_verdict_ex-sergeant_sued.html accessed 10/27/17.

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