748 F. Supp. 2d 712
E.D. Mich.2010Background
- Kalich, a store manager in Clarkston, alleged his supervisor Rich created an intolerable work environment with sexually oriented verbal abuse.
- Rich's comments included gendered insults, references to homosexuality, and nicknames; some remarks targeted Kalich personally.
- Plaintiff admits no explicit sexual advances or quid pro quo; one comment about necrophilia is the only sex-related remark present.
- Company had a sexual harassment policy; plaintiff could report anonymously, and internal investigation followed after plaintiff's complaint letter.
- Defendant moved for summary judgment on ELCRA hostile-work-environment claim, arguing comments were not sex-based and remedial action was adequate.
- Court held that only one comment could possibly fit sexual harassment; overall conduct did not amount to actionable hostile environment under ELCRA and granted summary judgment against Kalich.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rich's conduct constitutes unlawful hostility under ELCRA | Kalich asserts sex-based harassment created hostile environment | Rich's comments not inherently sex-based; not actionable | Not actionable under ELCRA; insufficient evidence of sex-based harassment |
| Whether conduct was inherently sexual or based on sexual orientation | Comments targeted sexual orientation/perceived homosexuality | Most remarks not inherently sexual or sex-based; necrophilia comment only arguably sexual | Harassment based on sexual orientation not actionable under ELCRA; only necrophilia related remark is inherently sexual and insufficient in context |
| Whether employer had notice and failed to take corrective action (respondeat superior) | Employer knew or should have known and failed to act promptly | Investigation initiated promptly; Rich was isolated, transferred; remedial action swift | Employer had notice and acted promptly; no failure to act; no respondeat superior liability under Michigan law |
| Whether prompt remedial action defeats liability under ELCRA | Remedial action after complaint should create liability | Remedial action sufficient to prevent harassment; no ongoing harassment | Remedial actions were adequate; summary judgment for defendant stands |
Key Cases Cited
- Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910 (2000) (definition and elements of hostile work environment under ELCRA; employer notice and remedial action standards)
- Corley v. Detroit Bd. of Educ., 470 Mich. 274, 681 N.W.2d 342 (2004) (conduct must inherently pertain to sex to be actionable under ELCRA)
- Haynie v. Michigan, 468 Mich. 302, 664 N.W.2d 129 (2003) (sex-based harassment must pertain inherently to sex)
- Barbour v. Dep't of Soc. Serv., 198 Mich.App. 183, 497 N.W.2d 216 (1993) (harassment based on sexual orientation not within ELCRA; Title VII context)
- Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) (gender stereotyping theory; harassment based on perceived homosexuality distinct from sex stereotyping)
- Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993) (hostile environment elements; totality of circumstances; employer liability principles)