A Reminder On Supervisor Liability Under ELCRA
Posted by chapteradmin on Sep. 6, 2023 / Legal Updates / Subscribe 0
By Carol G. Schley, Clark Hill PLC
A recent Michigan Court of Appeals case serves as a reminder that, under Michigan’s anti-discrimination statute, supervisors can be individually sued and held liable for claims of harassment and discrimination.
In Hicks v. Caesar, Ms. Hicks was an employee of the Michigan Department of Health and Human Services (“MDHHS”). She claimed that she was subject to harassment by her supervisor, Ms. Caesar, after Ms. Hicks filed a weight discrimination claim with the Michigan Department of Civil Rights. Subsequently, Ms. Hicks also asserted an internal claim of sexual harassment against her co-worker, Mr. Brown, for inappropriate statements, text messages and conduct.
After she received a written reprimand for unprofessional workplace behavior, Ms. Hicks filed a lawsuit against Ms. Caesar and Mr. Brown alleging claims under the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”) for (1) retaliation, (2) disparate treatment, and (3) hostile work environment. However, Ms. Hicks failed to timely serve the lawsuit on her supervisor, Ms. Caesar, so she was unable to proceed as to those claims. That left her claims against her co-worker, Mr. Brown, only.
With respect to the retaliation and disparate treatment claims, the court held that under ELCRA, an “employer” is defined as “a person who has 1 or more employees, and includes an agent of that person.” The court held that Mr. Brown did not meet this definition as an “agent” of the MDHHS, as there was “no allegation or evidence that he had the ability to take an adverse employment action against [Ms. Hicks]; according to her complaint, Brown was simply her coworker.” The court also held that Ms. Hicks was unable to establish a claim of hostile work environment, due to the fact that Mr. Brown was alleged to be a co-worker, not a decision-maker with requisite control over the terms and conditions of her employment. However, the court noted the outcome of the case might have been different if her supervisor had remained in the case. “Hicks’s problem, however, is that the only remaining defendant, Brown, was her coworker, not her employer.… Had she timely served the summons on Caesar, and Caesar remained a defendant, or had she sued MDHHS or MRS, perhaps she could establish [the claim].”
The Hicks case is a reminder to supervisors that they can end up as named defendants in lawsuits brought by employees under ELCRA. Not only is this done by plaintiffs’ counsel to cause distress to supervisors, who justifiably may cringe at seeing themselves named in a lawsuit that may drag on for years, it is also done because a supervisor has potential liability under ELCRA. Given this state of the law, the best way for a supervisor to avoid ending up as a defendant is to ensure that all employment decisions are consistently compliant with established workplace policies and the law. Further, employers should ensure that all supervisory employees receive ongoing substantive training on workplace laws tailored to their supervisory role. The involvement of legal counsel on tricky workplace issues, and with the training of supervisors, is advisable.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at [email protected] or (248)530-6338.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2023
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