In Memmer v. United Wholesale Mortgage, No. 23-CV-10921, 2026 WL 561393, at *8 (E.D. Mich. Feb. 27, 2026), the court, inter alia, granted defendants’ motion to compel arbitration and to dismiss plaintiff’s complaint, finding that plaintiff’s claims did not trigger the application of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA).
In reaching its conclusion, the court provided the following instructive analysis as to the crucial, yet subtle, distinction between “sex discrimination” and “sexual harassment”:
In her Complaint, Memmer premises her sexual harassment claims solely on an email communication or communications from a broker in which the broker stated “that [Memmer] was too pretty to be an underwriter and that he was going to tell her CEO Matt Ishbia to make her a model for the company.”5 (ECF No. 1 at PageID.5 ¶ 35; see also id. at PageID.26-27 ¶¶ 229, 242.) In response to UWM’s motion to dismiss, Memmer similarly focuses on “this conduct” as that which “created an intimidating and hostile work environment,” and she identifies no other conduct as “sexual harassment.” (ECF No. 25 at PageID.284 (emphasis added).) Memmer alleges no facts to suggest that this conduct was frequent or that it unreasonably interfered with her work performance. Objectively, it was not severe, physically threatening, or humiliating. It falls short of the “high bar” for a hostile work environment. See Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000) (finding allegations, including a male supervisor’s sexual advances and several lewd jokes about the plaintiff’s appearance, including calling her “hot lips,” not severe or pervasive enough to state a sexual harassment claim); Rayford v. Illinois Cent. R.R., 489 F. App’x 1, 5 (6th Cir. 2012) (finding comments made to a male employee three or four times per week, such as being called “sweet booty” and being told a co-worker “wanted to mix coffee with his cream” were not so severe and pervasive that a reasonable person would find his work environment hostile and abusive); Mast v. IMCO Recycling of Ohio, Inc., 58 F. App’x 116, 119 (6th Cir. 2003) (finding facts insufficient to support a hostile work environment which included the plant superintendent telling the plaintiff “she was too pretty to be working here” and attempting to pat her on the buttocks as she climbed onto a forklift); Crowe v. Ohio Dep’t of Rehab. & Corr., Nos. 98-4024, 98-4126, 1999 WL 717947, at * (6th Cir. Sept. 10, 1999) (citing Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995) (“holding that supervisor’s actions—calling the plaintiff ‘pretty girl,’ making grunting sounds when plaintiff wore a leather skirt, saying ‘all pretty girls run around naked,’ and saying that with ‘so many pretty girls,’ he ‘didn’t want to lose control’—did not constitute sexual harassment”)).
Citing Iqbal, 556 U.S. at 678, Memmer argues in her supplemental brief that she need not “specifically plead facts that could support” her claim. (ECF No. 31 at PageID.340.) Relying on Erickson v. Pardus, 551 U.S. 89, 93 (2007), she claims that “[s]pecific facts are not necessary.” (ECF No. 31 at PageID.340.) But what the Supreme Court stated in Iqbal, as Memmer acknowledged in her parenthetical when citing the decision, is that the plaintiff need not provide “detailed factual allegations.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555) (emphasis added). Still, the plaintiff’s [f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. They must be enough “to state a claim to relief that is plausible on its face.” Wamer v. Univ. of Toledo, 27 F.4th 461, 466 (6th Cir. 2022) (quoting Iqbal, 556 U.S. at 678).
As the Iqbal Court further noted, when confronted with a motion to dismiss “mere conclusory statements[ ] do not suffice.” 556 U.S. at 678. Thus, even if the Court considered Memmer’s vague allegations in her EEOC charge that “[b]rokers would continuously watch [her] u-snap recorded videos at odd times of the night over and over again” and that she was subjected to “sexual harassment on multiple occasions” (see ECF No. 31 at PageID.343 (quoting ECF No. 9-1 at PageID.108)), this would not render her sexual harassment claims more plausible. Memmer’s attempt in her supplemental brief to state a plausible sexual harassment claim based on the conduct she alleged to support her pregnancy discrimination claims also fails.
As discussed earlier, gender-based discrimination and sexual harassment are distinct. Harassment is a form of discrimination; however, not all discrimination constitutes harassment. In her Complaint, Memmer alleges a discrete act of discrimination based on her pregnancy, not harassment because of her pregnancy. But even if the Court considered the alleged conduct Memmer describes as the basis for her pregnancy discrimination claims as part of the circumstances in assessing whether she alleges “sexual harassment,” it would still find that she has not cleared the Sixth Circuit’s “high bar” for alleging unlawful conduct under Title VII or ELCRA. The conduct was not severe, pervasive, or physical.
The court also held that plaintiff failed to allege facts that defendant “knew or should have known of the charged harassment.”