I’d be curious to read the actual memos drafted by county attorneys about mandating sexual harassment training for elected officials. Elected officials are not public employees under Title VII of the Civil Rights Act. They’re actually specifically excluded from the definition of employees under Title VII, probably for the reason that there’s only so much that the government can do to control their behavior because they’re elected.
The question then is whether Michigan’s Elliott-Larsen applies. But county commissioners don’t have staff, so there isn’t really a question of whether their staff is an employee of the commissioner or the government for application of the law (that’s a question that comes up in cases where a complainant works for a legislator, for example). The elected official is not an employee exactly of the government. I’m not finding a clear answer to whether Elliott-Larsen applies to subject a government entity to liability for sexual harassment by an elected official. Elliott-Larsen prohibits discrimination. Sexual harassment is one type of prohibited discrimination. But what if the discrimination comes from someone who is essentially a third-party, in this case an elected official?
So the question might be more generic. Is an elected official an employee? The IRS says yes, but they only have a say over tax law. It’s an interesting question. It doesn’t pass the smell test, though, that the county thinks they can one, require elected officials to take training or two, that them taking training is going to shield the county from liability. Someone reports harassment by an elected official and then what? The training they already took is in the past, and the government is powerless to do much to stop the harassment from happening again, other than commissioners making some strongly worded Twitter/Facebook posts about it that the Record Eagle will requote. This source says that third-party liability for discrimination in the form of sexual harassment is a thing; however, the law also takes into account the practical limitations that an employer might have to deal with the third-party’s conduct.
I don’t have the answers, except to say that I think what the county attorneys drafted up is probably a little bit superficial in its analysis (of course I haven’t seen it, so surprise me), that liability is possible, however there are significant limitations to that liability, and I don’t see how you can require the training of an elected official.
Also in the news, there’s mold in the courthouse. Court administrator Carol Stocking (who promised she was going to retire a long time ago when she and two judges marched into a commission meeting and demanded special treatment, which they eventually got) says they should fix the mold. Does the jail have mold? When was the last time that it was tested? That’s not an accusation, just an honest question.