In its recent decision in McClements v. Ford Motor Company, the Michigan Supreme Court refused to expand an employer's liability for common law "negligent retention" to workplace sexual harassment situations. The Court at the same time held that an employer cannot be sued by a contractor's employee under the Michigan Elliot-Larsen Civil Rights Act unless the employer actually exercises control over a term or condition of that individual's employment.

Milissa McClements worked as a cashier for AVI Food Systems in cafeterias located on the grounds of Ford's Wixom Assembly Plant. AVI hired McClements, assigned her to the Wixom Plant location, paid her wages and benefits, and had its own employment polices, including one prohibiting sexual harassment. AVI had its own labor contract governing the terms and conditions of employment for its hourly workers.

McClements sued Ford alleging that one of its superintendents had subjected her to a sexually hostile work environment when he asked her out and later grabbed her in an AVI cafeteria storeroom and kissed her. She claimed that Ford knew this superintendent had a propensity to sexually harass women and that Ford had "negligently retained" the superintendent - thereby allowing him to harass her. McClements also sued Ford (not AVI, her employer) for sexual harassment under the Elliott-Larsen Act.

Rejecting McClements' "negligent retention" claim, the Court explained it has recognized such claims only where there is a propensity to engage in conduct considered tortious under the common law (e.g., a propensity to violently assault others). Here, the superintendent's alleged propensity was sexual harassment - a "statutorily based tort," not a common law tort. Because no remedy existed for sexual harassment prior to the Elliott-Larsen Act, the Court reasoned, McClements' remedies were confined to those in the statute itself.

As for McClements' sexual harassment claim against Ford, the Court held that, while the superintendent's alleged conduct may have violated the statute, she had sued the wrong party. To sue Ford, said the Court, McClements had to show that Ford was in a position to, and did, exercise control over a term or condition of her employment with AVI. It was not enough to show that the Ford superintendent may have affected her employment with AVI, when he had no actual or apparent authority to enter AVI's storeroom area and certainly had no authority to create a sexually hostile environment for AVI employees.

The Court's two rulings put helpful boundaries around some basic legal concepts that plaintiffs' employment lawyers have been trying to expand.

Julia Turner Baumhart

Kienbaum Opperwall Hardy & Pelton served as litigation counsel for the Company, and Ms. Baumhart argued the Michigan Supreme Court appeal, in the McClements v. Ford Motor Company case.

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