Sexual Harassment and Sex Discrimination
Sexual harassment occurs when a man or women makes an unfriendly sexual advance which is considered illegal discrimination under Michigan Law. This unwanted act creates a very uncomfortable and hostile workplace for employees.
Legal Definition of Sexual Harassment in Michigan
There are two general categories of sexual harassment that are explained by Michigan’s Elliot-Larsen Civil Rights Act.
- Hostile work environment harassment
- “Quid pro quo” harassment
Sexual harassment means demands for sexual favors, unwanted sexual advances, physical or verbal conduct, or communication of a sexual nature when:
- To obtain employment, public housing, public education, or public services; a proposal of sexual conduct is made either indirectly or directly.
- An acceptance or rejection of a sexual conduct submission by an individual is used as a factor in deciding their employment, public accommodations, education, or housing.
- Sexual conduct has the effect of interfering with an individual’s employment, public education, housing, or public accommodations.
“Quid Pro Quo” Harassment
Quid Pro Quo is a Latin phrase meaning this for that; meaning the exchange between two parties. Any altercation that involves sexual activity in an employment setting is illegal under Michigan Law.
The most obvious form of harassment falls under the Quid Pro Quo harassment. An employee preforming demanded sexual favors for a boss/manager to receive a promotion would be an example.
Hostile Work Environment
Making a victim feel uncomfortable about their sexuality from words or actions is an example of hostile work environment sexual harassment. Even if there is no specific demand for a sexual favor, making a victim feel intimidated in their own work environment is harassment.
The harassment itself must be severe and persistent enough to file a claim.
The employer is solely responsible for the harm caused by a hostile work environment if the victim takes action about the harassment. The individual being harassed should report it in a timely manner to allow the employer adequate time to assess the situation. Complex legal issues arise with claims of hostile environments caused by sexual harassment.
Sexual harassment ranges from young to old, men to women, skilled and unskilled workers, and married to single people.
Types of sexual harassment include:
- Women harassed by men
- Women harassed by women
- Men harassed by women
- Men harassed by men
It is often unclear why one certain person is being harassed, but it is unacceptable and illegal.
Pregnant women are protected in the workplace by both federal and state laws in Michigan. Pregnancy is a unique condition that only applies to women, therefore any discrimination denies women’s rights because of their sex.
Discrimination based on sex, including pregnancy, child birth, or medical conditions related to pregnancy is prohibited under the Elliott-Larsen Civil Rights Act. It is illegal to terminate a woman from the workplace due to a pregnancy.
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964 which requires an employer to treat pregnancy the same as a form of medical leave.
A woman who is pregnant must follow the advice of her doctor, meaning the employer cannot make the decision about her maternity leave
Family and Medical Leave Act (FMLA)
Without losing their employment, The Family and Medical Leave Act enables workers to take an unpaid leave due to family and medical needs. Continuation of benefits and compliance is still required during their leave.
Protections and Rights
An employer must allow employees that are eligible up to 12 work-weeks of unpaid leave in a 12-month period according to FMLA to care for:
- A newborn child
- A newly-placed adopted or foster child
- A seriously ill child, spouse or parent, or
- An employee’s own serious health condition that prevents the individual from performing the functions of his or her job
The employer also must:
- Continue the employee’s health coverage under any group health insurance plan, and
- Restore the employee to his or her original job, or an equivalent position, upon return to work
The FMLA prevents an employer from:
- Interfering with, restraining, or denying the exercise of any FMLA rights
- Discharging, or discriminating against, any person for opposition to a practice prohibited by FMLA or for involvement in any proceeding related to FMLA
Who is Covered under FMLA?
Approximately 60% of Michigan workers are covered under this act. If they meet the following criteria they are eligible:
- Must have worked for the employer for at least 52 weeks and at least 1,250 hours over the past 12 months
- The employer has 50 or more employees who work within 75 miles of the work site.
FMLA applies to state, local, and federal agencies, as well as public and private employers.
Discrimination based on color, race, and national origin is strictly forbidden according to the Elliott- Larsen Civil Rights Act (ELCRA)
An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . race, color, [or] national origin.”
Federal Racial Discrimination Law
Employers that are discriminated based on color, race, sex, national origin, or religion are protected under Title VII of the Civil Rights Act of 1964. The law only applied to companies with 15 or more employees which include local, federal, and state agencies as well as employment agencies and labor organizations.
Any employer who is discriminating an employee for job applications, promotions, compensation, and job training based on color or race is violating Title VII. Stereotypes or assumptions about abilities or performance cannot influence employment decisions. Also, an employer is forbidden to deny equal employment opportunities based on a person’s marriage or association to an individual of a different ethnicity or race.
Race- Related Characteristics and Conditions
Discrimination based on characteristics of an individual’s facial features, skin color, hair texture, or race is prohibited by federal law. An employer is prohibited to discriminate because of a condition that affects one particular race. Most employers can not exclude all individuals with sickle cell anemia; which predominantly affects African-Americans. However, these types of employment rules would be lawful, if and only if, the employer can show that different treatment for individuals with the condition is job-related and vital for business operations.
Racial jokes, offensive or negative comments, graffiti, pictures, ethnic slurs, or other comments based on race or color is considered harassment and violates Title VII. This harassment can cause an intimidating or uncomfortable work environment and can possibly interfere with an employee’s work performance.
Physically isolating or segregating workers from other employers because of a certain color or race is violating Title VII. It is forbidden for employers to not assign employees based on their color or race. Coding resumes or applications to designate an individual’s color or race is also considered discrimination.
It is more than likely that if an employer asks an applicant information that indicates race or color that they will use that as a basis for hiring. This can be removed if minorities feel as though it is being used as discrimination. If an employer needs information about the color or race of an individual applying for affirmative action purposes, they can utilize “tear off sheets”.
Retaliating against anyone for filing for a discrimination charge, testifying in a Title VII investigation, or opposing discriminatory employment practices is prohibited.
An employer treats an individual less favorably because of their age is considered age discrimination, which is growing to be a major problem in America.
The Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based upon age. This law, MCL 37.2202, states:
“An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age.”
Individuals who are 40 years or older are protected by the Age Discrimination in Employment Act of 1967 (ADEA) from discrimination based on age. It is illegal to discriminate against an individual on privilege of employment, hiring, firing, lay off compensation, benefits, or promotions because of their age. The ADEA applies to all employees as well as individuals applying. It is also prohibited for an employer to retaliate against an applicant for refusing employment practices that discriminate based on age or participating in an ADEA investigation based on the discrimination.
However, employers are permitted to force retirement on their employees based on their age in jobs such as firefighters and police officers.
The ADEA only pertains to employers that have 20 or more employees that includes state, federal and local governments, labor organizations, and employment agencies.
Any advertisement promoted by an employer that includes age limitations or preferences are strictly prohibited.
Asking an applicant their date of birth is not prohibited, however, it may discourage older individuals applying for the position. The ADEA does not prohibit questions such as those but they are subject to close legal scrutiny. It is required that an employer has to show legitimate reasoning to know the age of the individual that is applying.
It is illegal to deny benefits to older workers under the Older Workers Benefit Protection Act of 1990 (OWBPA). However, an employer can potentially reduce benefits based on age, but only if the costs of the reduced benefits for older works is equal to the cost of regular benefits for younger workers.
Waivers of ADEA Rights
An individual may agree to give up the rights or claims under the ADEA at an employer’s request. A waiver agreement has to meet specific standards to be valid and enforceable. The following is the criteria the waiver must meet:
- Be in writing and be comprehensible;
- Specifically, refer to ADEA rights or claims;
- Not waive rights or claims that may happen in the future;
- Be in exchange for valuable deliberation;
- Advise the individual in writing to consult an attorney before signing the waiver; and
- Provide the individual at least 21 days to consider the agreement and at least 7 days to withdraw the agreement after signing it.
If an employer requests it in connection with an exit incentive or early retirement program, then the ADEA waiver will have stricter requirements.
Age Discrimination and Replacement of Higher-Wage Earners
It is illegal for an employer to replace workers making higher salary with workers that will make less based on their seniority. If ADEA took legal action, the employer would have to provide that the reason was truly age and not wages that motived the firing of older workers if they used wage rates as an excuse.
Any discrimination against an individual based on disability is strictly prohibited by the Persons with Disabilities Civil Rights Act (PWDCRA). The legal definition of disability is:
- A mental or physical characteristic that is a result of an injury, disease, functional disorder, or congenital condition of birth.
- If the characteristic limits one or more major life activity and is unrelated to the ability of the individual’s work performance
An individual is not protected by the PWDCRA if they lack the knowledge or skill to perform the job. However, they are covered if they possess a significant impairment that not only affects their work, but their day to day activities.
An employer must adjust for a worker with a disability under state law, unless doing so would create an unnecessary hardship. A worker must provide their employer with a written request for accommodation within 182 days of the worker learning the need for the accomendation.
Discriminating any employee with disabilities in job application procedures, advancement, hiring, firing, compensation, job training or other terms is forbidden under Title I of the Americans with Disabilities Act of 1990.
The ADA covers private employees that have 15 or more employees state and local governments, labor organizations, and employment agencies. ADA non-discrimination standards must also apply to federal government agencies under the federal Rehabilitation Act.
Under the ADA, an individual with a disability is a person who:
- Has a mental or physical impairment that significantly limits one or more major life activities,
- Has a record of impairment, or
- Is viewed as having such an impairment.
An employee or applicant with a disability is considered qualified for a job, if he or she can perform the vital functions of that job, with or without reasonable accommodation.
A reasonable accommodation includes:
- Making existing workplace facilities readily accessible to and usable by persons with a disability.
- Rearrangement of a job, adjusting a work schedule, or reassigning to a available position.
- Modifying equipment or devices, examinations, training materials, or policies, and providing qualified readers or interpreters.
An employer is not required to accommodate a worker that has a disability by lowering the production standards or quality or providing personal items.
Medical Examinations and Inquiries
The applicant may not be asked about the nature or severity of a disability by the employer, but they may be questioned about the ability to perform specific functions that the job requires. The medical examination must be job- related and the employer can make a job offer based on the results as long as all other employees receive the same examinations.
Drug and Alcohol Abuse
Employees who use illegal drugs and consume an excessive amount of alcohol are not covered by the ADA. An employer can hold alcoholics and drug users to the same performance standards as all the other employees.
Retaliating against any individual opposing employment that discriminates disability, filing a discrimination charge, or participating in an ADA investigation is prohibited.
Discrimination based on religion is prohibited under the Elliott- Larsen Civil Rights Act (ELCRA).
The law, MCL 37.2202, states:
“An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion.”
Employers discriminating against employees because of their religion is illegal under Title VII of the Civil Rights Act of 1964. This also includes hiring, firing, and other terms and conditions of employment. This law only pertains to employers with 15 or more employees including state, federal, and local government agencies, labor organization, and employment agencies.
Employees are not to be treated different by their employers based on their religious practices or beliefs. Employers may not hire or fire, give certain promotions, or impose different job performances based on religion. Also, it is forbidden that an employer forces an employee to participate, or not participate, in a religious activity.
An employer is required to accommodate an employee’s religious beliefs or pratcies, unless it poses a threat or hardship to the employer. A reasonable adjustment should be made to allow an employee to practice his or her religious beliefs.
An employer might avoid interference with a worker’s beliefs or practices:
- Flexible scheduling,
- Voluntary job substitutions or swaps,
- Job reassignments, lateral transfers, and
- Changes in workplace practices, policies, or procedures.
However, an employer is not required to make an accommodation that could potentially interfere with the business or cause a hardship. An employer must provide legitimate proof that the employee’s religious practice would create a hardship for the business, require excessive costs, interfere with other jobs, cause safety hazards, or conflict with another law or regulation.
Religious Expression in the Workplace
An employee must receive permission from their employer to practice their religion at work, unless the religious expression can cause a problem within the workplace. It is prohibited that an employer places more restrictions on one religion over another.
Implementing anti-harassment policies are some efficient ways employers can prevent religious harassment of their employees. They can also create a effective procedure for reporting, investigating, and abolishing harassment.
It is illegal to retaliate against an employee for opposing employment that discriminates based on religion. It is also forbidden to retaliate on an employee for filing a discrimination charge, or for testifying or participating in a Title VII lawsuit.