I’ve been sexually harassed at work- can I sue the person who harassed me?
Sexual harassment is a very emotionally charged claim. Some types of lawsuits are purely transactional with little to no feeling involved. Most involve at least some level of emotion, since people believe they were wronged, or being wrongfully sued. Very few types of lawsuits are as personal and sensitive as sexual harassment claims. Sexual harassment victims do not always just want money- they often want justice. They want to see the people who harassed them punished for what they did. As a matter of law, they usually have that option. Individuals can be sued for sexual harassment.
Title VII of the Civil Rights Act prohibits discrimination on the basis of sex, and that includes prohibiting sexual harassment. Michigan has an equivalent state law called the Elliott-Larsen Civil Rights Act which also prohibits sexual harassment as a form of sex discrimination. Under both of these laws, an employee can sue an employer for sexual harassment. Most people think of sexual harassment cases as being against companies (like Gilbert v. Chrysler or Ingraham v. UBS Financial), but both Title VII and Elliott-Larsen have broader definitions of “employer” than that. Here is the Title VII definition of “employer”: “The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” (“Person” is defined to include businesses.) Elliott-Larsen has similar language.
So, clearly, under state and federal law, individuals who are “agents” of an employer company can also be considered “employers.” The good news for individuals who are potential defendants is that Federal courts have limited the instances when an individual can be considered an employer and personally named under Title VII. However, under Elliott-Larsen, individuals face a lot more risk. Michigan courts, as well as federal courts interpreting Michigan law, have found that “agents” are persons to whom an employer gives supervisory power and authority over other employees, and that “agents” can be held directly and individually liable if they engage in discriminatory behavior in violation of Elliott-Larsen while acting in their capacity as the victim’s employer.
What does this mean for a sexual harassment victim who wants to sue the actual harasser? It depends. If the bad actor is a coworker who is at the same level as the victim, and not any type of supervisor or other person with authority over the victim, then that coworker is not an “employer.” The company is liable for harassment once it is on notice, but the individual is not using any sort of authority or control over the victim that was granted by the employer to effectuate the harassment and is thus not individually liable. However, if the harasser is a supervisor, or a supervisor of a supervisor, or anyone else higher up in the company who has some sort of control over the victim, that changes things. This individual most likely is an “employer” under Elliott-Larsen because the harasser controls some element of the victim’s employment, and can use that control to pressure or otherwise aid in his harassment of the victim.
Let’s do some examples. Assume you have two employees, Greg and Betsy, who work for a staffing company. Greg and Betsy both come to the office to get staffing assignments, and while there Greg continually propositions Betsy. Betsy complaints to the staffing company, and they respond by staggering their schedules so that they are not at the office at the same time. In this case, Betsy does not have a case against Greg, because he is on the same level as Betsy and did not use any sort of authority given to him by the staffing company to harass Betsy. Betsy also does not have a case against the staffing company because as soon as they knew about the harassment they took action to prevent it from happening again.
Now let’s assume Greg and Betsy both work at the staffing company’s headquarters. Betsy is an assistant to an office worker and Greg is that worker’s boss, putting him two levels above Betsy. Greg continues to proposition Betsy, trying to kiss her and asking her to meet him in private. Betsy lets Greg know that the advances are unwanted, but Greg persists and Betsy feels like she has to tolerate the harassment because Greg is above her in the company and could easily fire her. Here, Betsy may have a case against Greg, because he is in a position of authority over Betsy and may be using that authority to sexually harass her. Betsy would only succeed in her case against Greg if 1) she can show that the “harassment” was sufficiently severe and pervasive that a reasonable person in her position would feel it created a hostile or abusive work environment; 2) she can show that Greg had reason to know that the harassment was unwanted; 3) she suffered some form of damages, most likely emotional damages, as a result of the harassment; and 4) Greg had some sort of supervisory or other authority over her that put him in a position that allowed the harassment to happen.
Can Betsy name Greg and the company in the second scenario? Yes. Even if Betsy did not complain to someone above Greg, she can make the argument that the company is liable because it placed Greg in the position over her that allowed the harassment to happen and is thus liable for what he does with the authority they gave him. Her case against the company is much stronger if she complains to someone else with authority at the company and they fail to take action, but she can argue that they are on the hook for Greg’s bad behavior even if she failed to do that.
Does Betsy have to name both Greg and the company? No. Betsy may be able to argue that both Greg and the company count as “employers” under Elliott-Larsen, but if she wants to only name one, she can. Most of the time, lawyers will name both, but it is legally possibly to only name one as a defendant. It is also possible to name both and then settle with just one, meaning the case continues against the other.
In summary, there are scenarios where individuals can be personally liable for sexual harassment and can be sued as individual defendants. If you have been sexually harassed and would like to discuss your options, contact Gold Star Law.