Mich. Lawmaker Must Face Harassment Claim

(CN) - A Michigan legislator whose driver sued him for sexual harassment cannot block the lawsuit through absolute immunity, a state appeals court ruled.

Michigan Rep. Brian Banks, D-Harper Woods, hired Tramaine Cotton in early 2003. Cotton said he was hired as a driver, but Banks stated that Cotton also served as a legislative assistant who responded to constitutents' concerns.

Cotton claimed that he was constructively discharged after a few months because Banks continually expressed a desire to date him.

When Cotton refused, Banks asked him to work on his days off and to perform tasks that were not part of his job description, according to the lawsuit.

Banks countered that he fired Cotton because a warrant was issued for Cotton's arrest for missing a court date to answer a charge of driving with a suspended license.

Cotton sued Banks and the Michigan House of Representatives for wrongful termination and infliction of emotional distress.

He claimed that Banks demanded sexual favors as an employment condition, retaliated when he refused, created a hostile work environment and discriminated against him on the basis of his gender.

Banks filed a motion to dismiss the case, stating he was entitled to immunity under the Speech and Debate clause of the Michigan constitution because his decision to fire Cotton was part of the legislative process.

The trial court refused to dismiss the case. The Michigan Court of Appeals agreed that Banks is not entitled to immunity from Cotton's lawsuit.

"In the employment context, the immunity provided by the Speech and Debate clause should not turn on the nature of the employee's duties; whether the employee's duties have some connection to the legislative process is simply too crude a proxy for protected activity," Judge Michael J. Kelly wrote on behalf of the court's three-judge panel. Also, Kelly stated that Banks' reasons for firing Cotton did not "require inquiry into Banks' legislative acts or the motivation behind his legislative acts."

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