In a recent decision, Hamed v Wayne County (July 29, 2011), the Supreme Court substantially modified the law on sexual harassment in Michigan. These modifications are good news for employers.
Prior to Hamed, employers were responsible for sexual harassment by supervisors, even if the supervisor was acting in his/her own personal interest, and contrary to the employer’s policy. It was enough that the supervisor was “aided” by his/her supervisor authority in accomplishing the act of harassment. Under Hamed, the employer is not liable unless the supervisor is (1) acting within the scope of his employment (i.e. for the employer’s benefit) or (2) the employer had reason to foresee (by virtue of the supervisor’s past history) that the particular act of harassment was likely to occur.
The plaintiff in the Hamed case was a jail inmate who was raped by a guard. The guard had history of “disobeying work-related” protocol” and “engaging in aggressive behavior when provoked,” but no history of criminal sexual behavior. Given those circumstances, the Court concluded that the employer was not responsible for the rape.
What does this mean for employers? Hamed does not change the definition of sexual harassment, but it does substantially reduce the risk of liability for harassment by supervisors. To take advantage of the Hamed decision, however, it is still important to establish a clear prohibition against sexual harassment, and conduct criminal background checks. Employers who fail to take those steps, could still be liable based on the theory that the supervisor was acting within the scope of employment or that the employer was negligent in its hiring decision.