Whether the Elliott-Larsen Civil Rights Act (ELCRA) permits a hostile-educational-environment-harassment claim under a theory of direct liability; Gender-based discrimination by educational institutions; MCL 37.2402(a); MCL 37.2103; Chambers v Trettco, Inc; Respondeat superior

Holding on remand that while the ELCRA permits hostile-educational-environment-harassment claims under direct-liability theories, an educational institution is not liable if it shows that it took prompt and appropriate remedial action in response to the complainant’s claims, the court affirmed summary disposition for defendants-school district and board. It found that plaintiff “failed to rebut defendants’ evidence showing they took prompt and appropriate remedial action.” Plaintiff sued defendants on behalf of a female student, alleging defendants created a sexually hostile educational environment by not adequately responding to several incidents of student-on-student sexual harassment at an elementary school. The trial court granted summary disposition for defendants. In a prior appeal, the court reversed, finding the ELCRA does provide a remedy for plaintiffs who assert hostile educational environment claims on the basis of student-on-student harassment. The Supreme Court remanded for a determination of whether the trial court correctly granted summary disposition under a theory of direct (as opposed to vicarious) liability. On remand, the court first held that “the plain language of the ELCRA allows plaintiff to bring the claim under a direct-liability theory because it is undisputed defendants are educational institutions within the meaning of MCL 37.2401, and plaintiff alleged defendants discriminated against [the student] on the basis of her sex by creating a hostile educational environment.” The court then noted that defendants showed “they took prompt remedial action after learning of the incidents between the students . . . and satisfied their burden of showing that they promptly and appropriately responded” to the harassment. However, plaintiff “failed to satisfy her burden as the nonmoving party and thus failed to show a genuine issue of material fact as to whether defendants took prompt and appropriate remedial action.”