Did Same-Sex Harassment Violate Michigan Law?

A male worker at a Michigan auto manufacturing plant said that a male co-worker had sexually harassed him. The employer claimed that the conduct in questions was horseplay between two men and argued that the Michigan Civil Rights Act (MCRA) did not recognize same-sex harassment claims. What did the Michigan Court of Appeals decide?

What happened.

A male employee worked in a Ford manufacturing plant in Michigan, installing truck hoods between 2001 and 2003. According to the employee, a co-worker engaged in sexually harassing behavior toward him throughout this time.
He testified that the co-worker slapped him on the buttocks, pinched his nipples, and pulled down his pants. On one occasion, the co-worker allegedly exposed his testicles and grabbed the plaintiff's hand to make him touch them. The man said he reported several other incidents to his supervisor. He also said that the co-worker made a number of crude and sexually suggestive remarks toward him.
The employee sued Ford Motor Company under the MCRA. He claimed that he was the victim of sexual harassment. Ford asked the court to dismiss the trial, arguing that sexual horseplay between two men did not qualify as sexual harassment under the law. The trial court disagreed and refused to dismiss the case. Ford appealed to the Michigan Court of Appeals.

What the court said.

Ford first claimed that the MCRA does not recognize claims for same-gender hostile work environment sexual harassment. The Court of Appeals noted that the MCRA does not specifically address same-sex harassment, and that the Michigan Supreme Court has not yet addressed the issue. The U.S. Supreme Court, however, ruled in the 1998 case, Oncale v. Sundowner Offshore Services, that federal law does permit plaintiffs to bring sexual harassment claims when the alleged harasser is of the same sex.
The Supreme Court wrote that although the law's creators probably did not envision homosexual harassment, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," and that "discrimination because of sex," in the terms or conditions of employment, should include any sexual harassment that meets the statutory definitions. The MCRA, like Title VII of the U.S. Civil Rights Act, prohibits discrimination because of sex in the terms or conditions of employment. The Court of Appeals held that this language must encompass same-sex hostile environment claims.
Ford next argued that the statute's phrase forbidding contact "of a sexual nature" must refer only to actual sexual relations; because the co-worker was heterosexual, his behavior could not have involved homosexual advances or desire and was, therefore, not of a sexual nature. The Court of Appeals disagreed. It observed that the law prohibits "physical conduct or communication of a sexual nature" that interferes with the plaintiff's employment. The court found that the plaintiff's list of offenses, including ample contact with sexual organs, were quite sufficient for a jury to find that the co-worker's conduct pertained to sex.
Finally, Ford claimed that the plaintiff had not proven that co-worker's conduct was "because of sex." The Court of Appeals agreed. The trial court had not determined whether the co-worker acted out of sexual desire or out of general hostility toward males in the workplace. The Court of Appeals therefore sent the case back to the trial court to examine the evidence in this area. It otherwise upheld the trial court's decision to allow the case to proceed. Robinson v. Ford Motor Co., Court of Appeals of Michigan, No. 271395 (10/30/07).

Point to remember: The days when courts didn't believe in the existence of same-sex harassment are over. If a worker engages in sexual aggression or actions toward a colleague of the same sex, the employer could well be held liable