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Nearly everyone has heard the term “hostile work environment,” and just about everyone has some idea what harassment and discrimination are. But those terms and how they work in the employment setting is very commonly misunderstood by employees, department heads, and elected officials. This confusion can result in misunderstandings, inconsistent application of rules, and, at worst, can allow actual discrimination or harassment to continue unchecked.

This Article will explain what unlawful discrimination and harassment mean, what a “hostile work environment” is, and what steps you can and must take to address these problems in the workplace.

Unlawful Discrimination/Harassment and “Hostile Work Environments”

Unlawful discrimination and harassment have a specific meaning in employment law. Importantly, not all forms of unwelcome behavior are unlawful. The mistreatment someone might endure at work is only unlawful if it relates to a protected characteristic of that person.

Under state and federal anti-discrimination law, the following characteristics are protected:

• race
• color
• religion (including lack of religious belief)
• national origin
• age
• sex
• marital status
• height
• weight
• disability
• veteran status
• active military status
• sexual orientation
• gender identity
• gender expression
• pregnancy
• genetic information

Mistreatment in the workplace is unlawful if it relates to one of the protected categories listed above. If the mistreatment is for any reason other than these protected characteristics, then it is likely not unlawful.

Put simply, bullying, without any connection to protected characteristics, is not itself unlawful. Please note that simply because behavior is not unlawful does NOT mean that an employer is forbidden from taking disciplinary action against the offending employee. Whether the behavior is lawful is relevant to potential lawsuits or civil-rights charges brought by the harassed employee, but employers can still enforce standards of conduct even if the behavior is lawful.

Legal Standards for a Discrimination / Harassment Claim

In order to make a successful claim for unlawful discrimination or harassment, an employee must show:

1. They are a member of a protected class (which is true of everyone!).
2. They were qualified for their position, or they were performing their job adequately.
3. They were subject to an adverse employment action (e.g., not chosen for an open position, demotion, discipline, termination, etc.), and
4. Someone outside of their protected class was treated more favorably than they were.

If the employee can demonstrate these four things, then the employer has the burden to show that it made its employment decision based on legitimate, non-discrimination reasons and not because of the protected characteristics of the employee.

The employee then gets an opportunity to prove that the employer’s reasons are pretextual (i.e., that the stated reason is false and was offered to cover up actual discriminatory motives).

So, What’s a Hostile Work Environment?

A hostile work environment is a specific type of unlawful discrimination / harassment. It operates on the same protected characteristic basis as the unlawful discrimination and harassment discussed above. Not all unpleasant work environments are “hostile work environments.” A subjective feeling that the work environment is “hostile” is not enough. The unpleasantness or hostility in the workplace must be related to the protected characteristics of the person subjected to it.

For example, if a department head makes rude, disparaging, and upsetting comments to everyone, regardless of their race, sex, or other protected characteristics, and her comments do not indicate any protected-characteristic bias, then the behavior is unlikely to create a hostile work environment (even if her employer should perhaps look into potential discipline or training anyway!).

If, on the other hand, the department head only makes such comments to employees who fit within certain protected characteristics, then the mistreatment may rise to the level of a hostile work environment. For example, if the department head only makes upsetting comments to older employees or only to employees who identify as part of the LGBTQ+ community, that would be cause for concern. If the comments or actions include insults or slurs related to age or sexual orientation, then the connection to protected characteristics is even more clear.

Legal Standards for a Hostile Work Environment Claim

Employees seeking to prove a hostile work environment must prove:

1. The employee belongs to a protected class.
2. The employee was subjected to unwelcome harassment.
3. The harassment was based on one or more of the employee’s protected characteristics.
4. The harassment was sufficiently severe and pervasive to alter the conditions of employment, and
5. The employer knew or should have known about the harassment and failed to take appropriate remedial action.

Very importantly, element #4 requires that mistreatment be severe and pervasive to be unlawful. In order words, a single off-color comment (known as a “stray remark”) is unlikely to be unlawful. Harmful and sustained mistreatment that is based on a protected characteristic will result in liability, even if rare and relatively minor offenses will not. Certain singular incidents can meet the standard for “severity” on their own if they are truly extreme; that generally only occurs in instances of a physical attack based on protected characteristics. Conversely, relatively benign mistreatment can become “pervasive” if they are allowed to occur regularly over the course of months or years.

Why Should an Employer Care?

Obviously, the first concern should be that none of your employees are being mistreated and forced to work in an environment that is damaging to their mental health and emotional wellbeing.

If any further reason is necessary, employers should know that they can become liable for discrimination or harassment that occurs in their workplace. Even if the employer (in this case the township board) is not directly involved in the alleged discrimination or harassment, the actions of supervisors, managers, department heads, or individual elected/appointed officials can create liability for the entire township, not just the offending person. And employees who sue or make civil rights claims will certainly include the township in any legal action.

Responsibility to Investigate

When an employer becomes aware of potential discrimination, harassment, or hostile work environment problems in the workplace, the employer has a responsibility to investigate those allegations. One of the factors that will determine whether an employer might be liable in such a claim is whether the employer was aware (or should have been aware) and whether the employer did anything to correct the problem. Without a proper investigation of a complaint, an employer has no way to know which complaints are legitimate and no way to figure out what corrective action should be taken to eliminate the problem.

If an employer is notified of a complaint or a potential harassment problem, failure to investigate it completely and fairly is a surefire way for that employer to find itself in hot water in a lawsuit or civil rights claim down the road.

Some employers insist on written complaints in order to begin an investigation. While it is preferable that a complaint be put in writing, that should not be required if the complainant refuses. A failure to investigate a complaint simply because the employer prefers a different form will give very little protection if the employee opts to explore other legal avenues.

Investigation Guide

Once a complaint has been received, or once the employer has reason to believe discrimination / harassment may be taking place, the investigative process begins. The first decision in the process is to determine who should conduct the investigation. If no one at your township is comfortable handling the matter, if the allegations are sufficiently serious, or if all available investigators may be perceived as biased, your township should consider having township legal counsel perform the investigation or asking township legal counsel for a referral to an attorney who routinely performs investigations. If the township plans to conduct the investigation using its own high-level employees or officials as investigators and those investigators have no training in investigations, they should consult with an employment law or human resources expert. An investigation that appears incomplete or unfair can create more problems than it resolves.

Basic Investigation Outline

Although every investigation is different and will proceed at its own pace and with its own unique circumstances, the basic outline of an investigation is as follows:

1. Review Written Materials – the investigator should review any written complaint, any written documentation / evidence, and any employer policies concerning unlawful harassment and the investigation process.
2. Reach out to Complainant and Advise Respondent of Investigation – as soon as materials have been reviewed, the investigator should begin making plans to interview the complainant, and the respondent (person who the complaint is made against) should be advised that a complaint has been made about their behavior. The existence of a complaint should not be hidden.
3. Interviews – the primary method of discrimination / harassment investigation is via in-person interviews. If at all possible, interviews should be conducted in the following order:
   1. Complainant – the complainant should be interviewed first to establish what the complaint is about and to gather any facts or evidence the complainant thinks is relevant to establishing the claim. If new facts are raised in subsequent interviews, a follow-up interview may be necessary to ensure the complaint has been fully investigated.
   2. Other Witnesses – any other witness besides the complainant and respondent should be interviewed between the complainant and respondent. These witnesses may have biases (i.e., they are “rooting” for either the complainant or the respondent), but they are generally more neutral and will fill in much of the factual background that may be clouded by the emotions of the complainant and/or respondent.
   3. Respondent – the respondent should be interviewed last to ensure that the investigator has as many facts available as possible to allow the respondent to adequately respond to the complaint.
4. Analysis – the facts gathered from the written material and interviews must then be analyzed against the legal standards (set forth above) for discrimination and harassment. If the investigation was conducted by a non-attorney, an attorney should be consulted to ensure the analysis is well considered.
5. Report – the facts and analysis should be captured in a report. An investigation report is typically written and delivered to the employer (in our case, the township board). In certain circumstances an oral report may also be advisable.

Interview Best Practices

The heart of the investigation, the interviews, must be handled properly to make meaningful factual findings.

An investigator should prepare an outline of questions for each interview. Failure to prepare for an interview leaves the investigator relying too heavily on in-the-moment decision making and misses critical questions that can only be uncovered through purposeful preparation. On the other hand, an investigator should not get stuck to a script. Each interview is unique, and witnesses often have new or surprising information that the investigator should follow up on that may end up more relevant than the scripted questions.

The interview process is meant to gather as much information as possible. The interview is not meant to catch witnesses in a lie or prove them right or wrong. Questions should be open-ended to allow the witness to provide the information. “Leading questions” might suggest an answer to a witness and that should be avoided to prevent the interviewer from imposing a narrative on the witness.

Discrimination and harassment often depend on the motivation of the alleged harasser. For that reason, the complainant and respondent should be asked why certain actions were taken, not simply what happened.

Every witness should be asked:

• Their preferred resolution to the situation (if any)
• Who else should be interviewed
• Whether they have any documents they want to share
• Before closing the interview, ask if there is anything else the witness would like to share that has not already been asked
• Offer the opportunity that they can reach out if they remember something that they wished they would have mentioned in the interview

Special Considerations for Government Employers

To ensure that an investigation is fair and that witnesses do not intentionally or unintentionally coordinate stories, confidentiality is essential. Documents concerning the investigation should be viewed only by those with a need to see them. Witnesses should be asked to keep their interview confidential to avoid influencing one another.

However, confidentiality in the investigative process can be challenging in the municipal setting. Michigan municipalities are subject to transparency laws, namely the Freedom of Information Act (“FOIA”) and the Open Meetings Act (“OMA”).

FOIA Considerations

If the investigation is conducted by township employees or officials, interview outlines, interview notes, a written investigation report, and any other written materials related to the investigation will likely be subject to the FOIA. Upon a FOIA request, the township may be able to redact certain identifying information for the protection of privacy, but in most cases, it will be difficult to redact or withhold enough information to truly protect the identity of those involved, especially if the requestor knows enough about the situation to fill in some of the blanks on their own.

If the investigation is conducted by an attorney retained by the township, materials produced by the attorney are likely shielded from the FOIA as attorney work-product or, in the case of a written final report, are protected by the attorney-client privilege.

Alternatively, even if township staff or officials conduct the investigation, those investigators can have the township attorney conduct the legal analysis and draft a report that is protected by attorney-client privilege.

OMA Considerations

Some townships choose to conduct investigations on their own using a committee of the township board. When done this way, townships should be careful that the investigation committee does not constitute a quorum of the board to avoid any appearance of an OMA problem.

The main challenge presented by the OMA is how the full township board can hear about and discuss the investigation and any investigation report. These matters often include sensitive discussions and potential legal liability and thus can be difficult to speak about candidly in open session. Two purposes for closed sessions may allow the board to consider the investigation in closed session (though of course all decisions about remedial action must be done in open session).

• MCL 15.268(1)(a) allows a public body to enter closed session to hear complaints or charges against an official or employee if that individual “requests a closed hearing.” The individual can also rescind that request at any time. This purpose for closed session can be effective, but it depends on the request of the respondent to the investigation, and it can be difficult to rely on that official or employee in structuring an investigation plan.
• MCL 15.268(1)(h) allows a public body to enter closed session to “consider material exempt from discussion or disclosure” by state or federal law. This includes material covered by the attorney-client privilege. If an attorney completed the investigation or drafted a written report based on someone else’s findings, that report would be covered by the attorney-client privilege and could be used as a basis to enter closed session.

Conclusion

“Discrimination,” “harassment,” and “hostile work environment” are widely misunderstood phrases in employment settings. Understanding the basic rules surrounding these concepts go a long way to ensure that your township is protecting its employees from unlawful treatment and protecting itself from liability. The concepts outlined in this Article are meant as a starting point. Each complaint and each investigation presents its own unique challenges, and even if you choose to conduct an investigation using township staff or officials, please contact your township attorney for guidance throughout the process.

By: Chad Karsten

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.