Accused of Sexual Harassment at Work in Michigan: What an Employer Investigation Is and Is Not

An employer's harassment investigation is an internal process, not a court case. The civil law gives employers a reason to conduct one: under Michigan's model civil jury instruction an employer is legally responsible for a sexually hostile work environment if it had adequate notice of the harassment, failed to take prompt and adequate remedial action, and further harassment occurred as a result.^[3] A criminal case is a separate matter: a crime is an offense against the public pursued by the state, although the same act may be both a crime and a private civil wrong.^[5]

This page explains what the workplace process is, what rules bind the person accused during it, and where the line to criminal exposure runs. It is general information, it assumes nothing about whether an allegation is true, and it is not advice about any case.

What "sexual harassment" means in employment law

Michigan's Elliott-Larsen Civil Rights Act treats sexual harassment as a form of sex discrimination and defines it as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature, under listed conditions.^[1] The conditions are that submission is made a term or condition of employment, that submission or rejection is used as a factor in decisions affecting the individual's employment, or that the conduct has the purpose or effect of substantially interfering with an individual's employment or creating an intimidating, hostile or offensive employment environment.^[2]

Michigan's model civil jury instructions describe two types: quid pro quo, which means "this for that," and sexually hostile work environment harassment.^[8] The state act applies to an employer with 1 or more employees; the federal law, Title VII, applies to employers with fifteen or more.^[9][10] The Equal Employment Opportunity Commission says federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.^[11] The full law is set out in Workplace sexual harassment law in Michigan.

Why an employer investigates, and what the process is

In a hostile environment claim, the employee must prove that the employer was legally responsible.^[12] The employer is responsible if it had adequate notice, failed to take prompt and adequate remedial action that reasonably served to prevent future harassment, and further harassment occurred as a result.^[3] "Prompt and adequate remedial action" means steps reasonably calculated to stop the harassment, judged on the totality of the circumstances.^[13]

Those instructions frame the employer's exposure in terms of notice and of prompt steps reasonably calculated to stop the conduct complained of.^[3][13] They do not describe a procedure, which leaves three points about what the process is not:

• It is not a court. The civil rights provisions reviewed for this guide set no hearing procedure, standard of evidence or right to an advisor for a private employer's internal investigation. What an employee is entitled to depends on sources outside those provisions, such as a contract, a union agreement, a civil service system or the employer's written policy.
• It is not a criminal investigation. A crime is an offense against the public pursued by the state, while a tort is a private injury pursued by the injured party, although the same act may constitute both.^[5]
• It is not the end of the matter. According to the Michigan Department of Civil Rights, a complaint to the department must be filed within 180 days and a claim may be filed in state court within three years; according to the Equal Employment Opportunity Commission, a federal charge against an employer with 15 or more employees must be filed within 300 days in Michigan.^[14][15][16] See Deadlines to file a sexual harassment claim.

Where the employer is a school or college covered by Title IX, a different and more detailed federal process applies. That regulation allows a non-student employee respondent to be placed on administrative leave while the grievance process is pending.^[17] It is described in The Title IX sexual misconduct process.

The rules that bind the person accused

Retaliation

Section 701 of the Elliott-Larsen Civil Rights Act says that "a person shall not" retaliate or discriminate against a person because the person has opposed a violation of the act, or has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act.^[4] The same section says a person shall not coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of any right the act grants or protects.^[4] The wording is "a person," not "an employer."^[4] The section speaks of an investigation, proceeding or hearing "under this act"; whether an employer's internal investigation is one, and how courts apply the section to individuals, was not researched for this guide.

Title VII makes it unlawful for an employer to discriminate against an employee because the employee opposed an unlawful employment practice or made a charge, testified, assisted or participated in an investigation.^[18] A retaliation claim under the Michigan act has its own elements: protected activity, known to the defendant, an adverse employment action, and a causal connection between the two.^[19]

Retaliation is therefore a second and separate claim. Its listed elements concern the protected activity and what was done in response; they do not include a finding that the original complaint was upheld.^[19]

Witnesses and evidence, where a crime may be alleged

If the conduct alleged could also be an offense, the criminal statutes on witnesses and evidence are relevant alongside the workplace rules. Each applies by its own terms.

• Michigan's witness statute applies whether or not an official proceeding is pending, if the person knows or has reason to know the other person could be a witness at any official proceeding.^[20] It prohibits giving or promising anything of value, or using threat or intimidation, to discourage or influence testimony, and willfully interfering with a witness's ability to attend, testify or provide information.^[21][22][23]
• Retaliating against a person for having reported a crime, by committing or attempting a crime or by threatening to kill or injure any person or to cause property damage, is itself an offense.^[24]
• Under MCL 750.483a(5)(a), a person shall not knowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding; a violation is a felony.^[25] An "official proceeding" includes a proceeding heard before an administrative or other governmental agency authorized to hear evidence under oath.^[26]

The evidence statute draws no line between work and personal material.^[25] Its verbs are remove, alter, conceal, destroy and tamper; leaving records, accounts and devices exactly as they are is none of those.^[25] These rules are explained in Ten mistakes that make an investigation worse.

Statements in a workplace interview

Under the Michigan Rules of Evidence, a statement that was made by a party and is offered against that party is not hearsay.^[7] The rule's text is not limited to statements made to police, and it says "not hearsay," not "admissible."^[7]

The rights that attach to police questioning are tied to the criminal process: the Michigan Constitution provides that no person shall be compelled in any criminal case to be a witness against himself, and Miranda warnings apply to custodial interrogation by law enforcement officers.^[27][28] The sources reviewed for this guide do not address whether an employee may decline to answer an employer's questions on Fifth Amendment grounds, what an employer may do in response, whether public employees stand differently from private ones, or whether and how a statement given to an employer may be used in a criminal case. This page therefore states no rule on any of those points. They are questions for a lawyer.

When does workplace conduct carry criminal exposure?

The civil definition includes verbal conduct and communication.^[1] Criminal liability depends on the elements of a particular offense. The table lists offenses whose statutory elements can overlap with conduct described as harassment; it is not a complete list and says nothing about any allegation.

Conduct alleged	Offense it may meet	Source
Intentional touching of intimate parts, or the clothing covering them, that can reasonably be construed as being for a sexual purpose, accomplished by force or coercion or by surprise	Fourth-degree criminal sexual conduct, punishable by not more than 2 years or a fine of not more than $500, or both	[29][6][30]
A willful course of conduct involving repeated or continuing harassment that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested, and does	Stalking, a misdemeanor punishable by up to 1 year in its basic form	[31]
Malicious use of a telecommunications service with intent to harass, by vulgar, indecent or obscene language or by suggesting a lewd act	A misdemeanor punishable by up to 6 months or a fine of up to $1,000, or both	[32]
Knowingly making an open or indecent exposure	Indecent exposure, a misdemeanor punishable by up to 1 year in its basic form	[33][34]

An employer's finding is not a charging decision. A judge or magistrate may not issue a warrant or summons for other than a minor offense unless a written authorization signed by the prosecuting attorney is filed, or unless security for costs is filed.^[35] The registration act assigns a fourth-degree criminal sexual conduct conviction to a tier according to the ages the act states.^[36] See Is sexual harassment a crime in Michigan? and Fourth-degree CSC.

A civil lawsuit is a third possibility. A person can sue for damages caused by criminal sexual conduct even if no criminal prosecution was brought or a prosecution did not result in a conviction.^[37] See Civil lawsuits for sexual assault.

Licensed professionals and school employees

Some occupations have a further layer. A Michigan health professional can be disciplined for conduct with a patient that is sexual or may reasonably be interpreted as sexual, including conduct the patient initiated or consented to.^[38] A school employee who is charged with a listed crime must report the charge to the Department of Education and the school within 3 business days after arraignment, and failing to report is itself a crime.^[39][40] Those systems are covered in Licensing board investigations and Sex offense convictions and professional licenses.

What people commonly get wrong

"HR has to prove it beyond a reasonable doubt." That is the standard for a criminal trial.^[41] In a civil case the party with the burden must persuade the jury that the proposition is more likely than not true, and the provisions reviewed set no standard at all for an employer's internal decision.^[42]

"If the employer clears me, there can be no charge." The statute on warrants refers to a written authorization signed by the prosecuting attorney; it does not mention an employer's finding.^[35]

"Talking it over with the person who complained is harmless." The retaliation section and, where the person could be a witness at an official proceeding, the witness statute apply by their own terms, and no source reviewed for this guide identifies that contact as permitted or safe.^[4][20]

If police have become involved, or might, the starting point is Accused of a sex offense: first steps, and the options for counsel are in Do you need a lawyer before charges are filed?