Workplace Sexual Harassment Law in Michigan

Two laws govern workplace sexual harassment in Michigan: the state Elliott-Larsen Civil Rights Act (often shortened to ELCRA) and federal Title VII. The Michigan act says that discrimination because of sex includes sexual harassment, and it defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under three listed conditions.^[1][2]

This page explains those definitions, which employers each law covers, when an employer is legally responsible, the separate rule against retaliation, and the remedies. Filing deadlines have their own page: deadlines for a sexual harassment claim in Michigan.

How does Michigan law define sexual harassment?

The definition is in MCL 37.2103(k). Conduct or communication of a sexual nature is sexual harassment when one of three conditions is met:^[1][2]

• Submission to the conduct or communication is made a term or condition, explicitly or implicitly, to obtain employment, public accommodations or public services, education, or housing.^[2]
• Submission to or rejection of the conduct or communication is used as a factor in decisions affecting the individual's employment, public accommodations or public services, education, or housing.^[2]
• The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or of creating an intimidating, hostile, or offensive environment in one of those settings.^[2]

Older articles, and even the current model civil jury instructions, cite this definition under a different letter. The Legislature's current text places it at subdivision (k), and the section's history shows two 2023 amendments (2023 PA 45, effective June 15, 2023, and 2023 PA 6, effective February 13, 2024) and none since.^[1][8]

Since February 13, 2024, the employment section of the act also names sexual orientation and gender identity or expression, along with sex, among the grounds on which an employer may not discriminate.^[9]

What are the two types of harassment claim?

Michigan's model civil jury instructions tell jurors that there are two types of sexual harassment: quid pro quo, which means "this for that," and sexually hostile work environment harassment.^[10]

Quid pro quo

In a quid pro quo claim, the plaintiff must show unwelcome sexual conduct or communication by the employer or its agent, that submission was made a condition of employment or was used as a factor in an employment decision, and damages.^[11] The decision must be a "tangible employment action," which the instruction describes as a change in employment status such as hiring, firing, or failing to promote.^[11]

Hostile work environment

For a hostile environment claim against an employer, the model instruction lists five things the plaintiff has the burden of proving:^[12]

1. The plaintiff was subjected to communication or conduct on the basis of sex, sexual orientation, or gender identity or expression.^[12]
2. The plaintiff was subjected to unwelcome sexual conduct or communication.^[12]
3. The plaintiff was subjected to a sexually hostile work environment.^[12]
4. The employer was legally responsible for that environment.^[12]
5. The plaintiff has suffered damages.^[12]

"Unwelcome sexual conduct or communications" means unwanted conduct or communication that is inherently sexual.^[13] Whether the environment was hostile is judged from an objective standard: jurors decide how a reasonable person would have perceived the conduct or communication.^[14]

When is the employer legally responsible?

In a Michigan hostile environment case, the model instruction says the plaintiff must prove that the employer (1) had adequate notice that the plaintiff was subjected to sexual harassment, (2) failed to take prompt and adequate remedial action that reasonably served to prevent future harassment, and (3) further sexual harassment occurred as a result of that failure.^[5]

"Adequate notice" means that, under the totality of the circumstances, the employer knew, or a reasonable employer should have known, of a substantial probability that the plaintiff was being sexually harassed.^[15] "Prompt and adequate remedial action" means steps reasonably calculated to stop the harassment, judged on the totality of the circumstances.^[16]

Federal regulations take a similar approach to harassment between co-workers. Under the EEOC's rule, an employer is responsible for sexual harassment between fellow employees where the employer, its agents, or its supervisory employees know or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.^[17]

What an internal complaint and investigation look like from the other side is covered in accused of sexual harassment at work: what to know.

Which employers are covered by the Michigan act and by Title VII?

Question	Michigan Elliott-Larsen Civil Rights Act	Federal Title VII
Employer size	A person that has 1 or more employees, including an agent of that person[3]	Fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year[4]
Definition of sexual harassment	MCL 37.2103(k), three conditions[2]	EEOC regulation, 29 CFR 1604.11(a), three conditions[18]
Retaliation	Prohibited by MCL 37.2701(a)[6]	Unlawful under 42 USC 2000e-3(a)[19]
Dollar limits on damages	The act defines damages as damages for injury or loss caused by each violation, including reasonable attorney's fees[7]	Combined compensatory and punitive damages are capped by employer size, from $50,000 to $300,000[20]

The Michigan act's employment section does not apply to the employment of an individual by the individual's parent, spouse, or child.^[21]

The EEOC's definition closely tracks Michigan's: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are sexual harassment when submission is made a term or condition of employment, when submission or rejection is used as the basis for employment decisions, or when the conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive working environment.^[18]

What does the law say about retaliation?

Retaliation is its own violation. The Michigan act prohibits retaliating or discriminating against a person because the person has opposed a violation of the act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act.^[6]

The model jury instruction for a retaliation claim lists four things the plaintiff has the burden of proving: protected activity; that the defendant knew of it; an employment action adverse to the plaintiff; and a causal connection between the protected activity and the adverse action.^[22]

Federal Title VII likewise makes it unlawful to discriminate against a person because that person opposed an unlawful employment practice or made a charge, testified, assisted, or participated in an investigation.^[19]

What remedies are available?

A person alleging a violation of the Michigan act may bring a civil action for appropriate injunctive relief or damages, or both, and the act defines damages as damages for injury or loss caused by each violation, including reasonable attorney's fees.^[7] The suit may be brought in the circuit court for the county where the alleged violation occurred, or where the person against whom the complaint is filed resides or has a principal place of business.^[23] A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if it determines the award is appropriate.^[24]

The other route is an administrative complaint. The Michigan Civil Rights Commission's orders may include hiring, reinstatement, or upgrading of employees with or without back pay, and payment to the complainant of damages for an injury or loss caused by a violation, including a reasonable attorney's fee.^[25] Where a respondent holds a state license and the Commission makes the findings the statute describes, it certifies them to the licensing agency, and the finding may be grounds for revoking the respondent's license unless it is reversed on judicial review.^[26]

Under federal law, the combined compensatory and punitive damages available against an employer are capped by the employer's size: $50,000 for an employer with more than 14 and fewer than 101 employees, $100,000 for 101 to 200, $200,000 for 201 to 500, and $300,000 for more than 500.^[20]

Two federal statutes limit pre-dispute arbitration agreements and confidentiality clauses in these disputes. They are explained in NDAs and forced arbitration in sexual misconduct cases.

Does the Michigan act reach beyond the workplace?

Yes. The statutory definition of sexual harassment refers not only to employment but also to public accommodations, public services, education, and housing.^[2] A separate section bars an educational institution from discriminating against an individual in the full use of or benefit from the institution because of sex, sexual orientation, or gender identity or expression, among other grounds.^[27]

There is a limit on school liability. On July 29, 2024, in Doe v Alpena Public School District, the Michigan Supreme Court held that the act "does not provide a vicarious-liability cause of action against an educational institution for a hostile educational environment that is the result of student-on-student sexual harassment."^[28] The separate federal framework for schools is covered in Title IX: how a school sexual misconduct case works.

What people get wrong

"Michigan law only covers employers with 15 or more employees." That threshold is in federal Title VII.^[4] The Michigan act covers an employer with 1 or more employees.^[3]

"Harassment is always a crime." Sexual harassment is defined in a civil-rights statute.^[1] Michigan's criminal statutes use the term criminal sexual conduct, and the lowest degree, fourth-degree criminal sexual conduct, is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $500, or both.^[29] Where the line falls is the subject of Is sexual harassment a crime in Michigan? and CSC fourth degree.

"The employer is automatically liable for whatever a co-worker does." Under the model jury instruction for a hostile environment case, the plaintiff must prove notice, a failure to take prompt and adequate remedial action, and further harassment as a result.^[5]

For how the vocabulary differs across the criminal, workplace, school and licensing systems, see what "sexual misconduct" means in Michigan. Civil suits based on criminal sexual conduct, which follow different deadlines, are covered in civil lawsuits for sexual assault.