WORKPLACE LAW LOWDOWN | Michigan Court Affirms Dismissal in Sexual Harassment Case Involving Sharing A Locker Room With A Transgender Person
On June 1, 2017, the Michigan Court of Appeals ruled that the mere presence of a transgender person in a women’s locker room is not sufficient to establish sexual harassment. Cormier v. PF Fitness – Midland LLC, No. 331286 (Mich. Ct. App. June 1, 2017).
Cormier was a customer/member of a fitness center, Planet Fitness. She alerted management about the presence of a transgender woman (a man who identified as a woman) in the women’s locker room. A representative of Planet Fitness informed Cormier that it was company policy to allow members access to the facility that corresponds with their gender identity. Cormier warned several other members of the policy. The fitness center terminated Cormier’s membership less than 2 weeks later.
Cormier subsequently filed a lawsuit claiming, among other things, sexual harassment in violation of the Elliott-Larsen Civil Rights Act (“ELCRA”), which prohibits discrimination and harassment by places of public accommodation. The trial court dismissed the case and Cormier sought relief from the Court of Appeals.
The Court of Appeals was tasked with determining whether Cormier was discriminated against (i.e., sexually harassed) because of her sex. Cormier argued that, because of the company’s policy, the transgender individual had the opportunity to undress in front of her and to see her undress. She argued that this constituted conduct or communication of a sexual nature. The Court of Appeals noted that ELCRA does not define sexual harassment as being subjected to an opportunity for a person to engage in these types of conduct. Rather, it requires actual conduct that substantially interferes with a person’s utilization of public accommodations. Cormier alleged only that the Planet Fitness policy was such that there “could” be a hostile environment for women; not that any of this conduct actually took place. Accordingly, the Court of Appeals affirmed the trial court’s dismissal of Cormier’s claim.
The Court of Appeals did not explicitly rule that the circumstances in this case never constitute actionable sexual harassment. Rather, the Court held that a party bringing such a claim cannot rely on speculation, alone. The door is left open for future litigation where a party alleges actual conduct or communication of a sexual nature under these circumstances.
While this case involved a public accommodation, the circumstances could also apply to a workplace where the employer has a similar policy. Employers who need guidance with such an issue should consult experienced employment counsel.