Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 11, 2003
CAROL HAYNIE, Personal
Representative for the ESTATE OF
VIRGINIA RICH, Deceased,
Plaintiff-Appellee,
v No. 120426
THE STATE OF MICHIGAN and THE
MICHIGAN DEPARTMENT OF STATE
POLICE,
Defendants-Appellants,
and
DANIEL KECHAK and DANIEL PAYNE,
Defendants.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to consider
whether gender-based harassment that is not at all sexual in
nature is sufficient to establish a claim of sexual harassment
under the Civil Rights Act (CRA), MCL 37.2101 et seq. The
circuit court granted summary disposition in favor of
defendants, concluding that plaintiff had failed to establish
a prima facie case of hostile work environment based on sexual
harassment. The Court of Appeals reversed, concluding that
gender-based harassment is sufficient to establish a claim of
sexual harassment.1 We disagree. The CRA prohibits sexual
harassment, which is defined in that act as “unwelcome sexual
advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature . . . .”
MCL 37.2103(i). Accordingly, conduct or communication that is
gender-based, but is not sexual in nature, does not constitute
sexual harassment as that term is clearly defined in the CRA.2
Therefore, we reverse the judgment of the Court of Appeals and
reinstate the circuit court’s order granting summary
disposition in favor of defendants.
I. FACTS AND PROCEDURAL HISTORY
Two capitol security officers with the Michigan State
Police, Virginia Rich and Canute Findsen, shot and killed each
other, while on duty. After the incident, plaintiff, the
1
Unpublished opinion per curiam, issued September 28,
2001 (Docket No. 221535).
2
The proper recourse for conduct or communication that
is gender-based, but not sexual in nature, is a sex
discrimination claim, not a sexual-harassment claim.
2
personal representative of the estate of decedent Rich,
brought suit under the CRA against the state of Michigan, the
Michigan Department of State Police, and two state police
supervisors. Plaintiff claimed that Findsen had sexually
harassed Rich by making hostile and offensive comments about
her gender, thus creating a hostile work environment that
caused Rich to complain to her supervisors, who failed to take
remedial action.3
Defendants filed a motion for summary disposition under
MCR 2.116(C)(7) and (8), arguing that the alleged conduct was
not sexual in nature and, thus, not sufficient to establish a
claim of sexual harassment. Although plaintiff conceded that
the alleged offensive conduct was not sexual in nature, she
argued that the conduct was gender-based and that allegations
of gender-based harassment are also sufficient to establish a
claim of sexual harassment. The circuit court granted
defendants summary disposition, concluding that plaintiff had
failed to plead three of the five necessary elements to
establish a prima facie case of hostile work environment based
on sexual harassment.4 Specifically, it concluded that
3
Although the harassment of Rich allegedly came
primarily from Findsen, who may have held the belief that
females did not belong in law enforcement, he was not the only
officer who allegedly harassed Rich.
4
The circuit court also dismissed plaintiff’s claims
(continued...)
3
plaintiff had failed to plead that Rich was subjected to
unwelcome sexual conduct or communication; that the unwelcome
sexual conduct or communication was intended to, or, in fact,
did, substantially interfere with Rich’s employment or create
an intimidating, hostile, or offensive work environment; and
respondeat superior.5
The Court of Appeals reversed the circuit court’s order
granting summary disposition for defendants. The Court relied
4
(...continued)
against the two state police supervisors, and the Court of
Appeals affirmed that decision. In addition, plaintiff
voluntarily accepted the dismissal of a weight-discrimination
claim.
5
As discussed below, the five necessary elements to
establish a prima facie case of hostile work environment based
on sexual harassment are:
(1) the employee belonged to a protected group;
(2) the employee was subjected to
communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome
sexual conduct or communication;
(4) the unwelcome sexual conduct or
communication was intended to or in fact did
substantially interfere with the employee’s
employment or created an intimidating, hostile, or
offensive work environment; and
(5) respondeat superior. [Radtke v Everett,
442 Mich 368, 382-83; 501 NW2d 155 (1993); see also
Chambers v Trettco, Inc, 463 Mich 297, 311; 614
NW2d 910 (2000).]
The circuit court concluded that plaintiff had failed to plead
the last three elements.
4
on Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998), which held
that allegations of gender-based harassment can establish a
claim of sexual harassment under the CRA. Defendants, the
state of Michigan and the Michigan Department of State Police,
applied for leave to appeal to this Court, which we granted.6
II. STANDARD OF REVIEW
“The decision to grant or deny summary disposition is a
question of law that is reviewed de novo.” Veenstra v
Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643
(2002). Also reviewed de novo are questions of statutory
interpretation, such as the question at issue here—whether
harassment that is not sexual in nature, but is gender-based,
is sufficient to establish a claim of sexual harassment under
the CRA. Id.
III. ANALYSIS
The CRA, MCL 37.2202(1), provides in relevant part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual with respect to employment,
compensation, or a term, condition, or privilege of
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
Accordingly, it is unlawful for employers to discriminate
against an individual with respect to a condition of
6
466 Mich 889 (2002).
5
employment because of sex. The CRA, MCL 37.2103(i), further
provides:
Discrimination because of sex includes sexual
harassment. Sexual harassment means unwelcome
sexual advances, requests for sexual favors, and
other verbal or physical conduct or communication
of a sexual nature under the following conditions:
(i) Submission to the conduct or communication
is made a term or condition either explicitly or
implicitly to obtain employment, public
accommodations or public services, education, or
housing.
(ii) Submission to or rejection of the conduct
or communication by an individual is used as a
factor in decisions affecting the individual’s
employment, public accommodations or public
services, education, or housing.
(iii) The conduct or communication has the
purpose or effect of substantially interfering with
an individual’s employment, public accommodations
or public services, education, or housing, or
creating an intimidating, hostile, or offensive
employment, public accommodations, public services,
educational, or housing environment.[7]
Plaintiff alleges that the conduct in this case violated
subsection iii by creating a hostile work environment. To
establish a prima facie case of hostile work environment based
on sexual harassment, plaintiff must show the following:
(1) the employee belonged to a protected
group;
(2) the employee was subjected to
communication or conduct on the basis of sex;
7
Subsections i and ii are commonly known as quid pro quo
sexual harassment, and subsection iii is commonly known as
hostile work environment sexual harassment.
6
(3) the employee was subjected to unwelcome
sexual conduct or communication;
(4) the unwelcome sexual conduct or
communication was intended to or in fact did
substantially interfere with the employee’s
employment or created an intimidating, hostile, or
offensive work environment; and
(5) respondeat superior. [Radtke v Everett,
442 Mich 368, 382-383; 501 NW2d 155 (1993); see
also Chambers v Trettco, Inc, 463 Mich 297, 311;
614 NW2d 910 (2000).]
The first element is easily met because “all employees
are inherently members of a protected class in hostile work
environment cases because all persons may be discriminated
against on the basis of sex.” Radtke, supra at 383. In this
case, plaintiff meets the first element because Rich was an
employee who was allegedly discriminated against on the basis
of sex.
This Court concluded that, in order to meet the second
element, a plaintiff need not show that the conduct at issue
was sexual in nature; rather, a plaintiff need only show that
“‘but for the fact of her sex, she would not have been the
object of harassment.’” Id. (citation omitted). This second
element is derived from the language of MCL 37.2202(1), which
prohibits an employer from discriminating against an employee
“because of” sex. Obviously, an employer cannot be said to
have discriminated against an employee “because of” sex
unless, but for the fact of the employee’s sex, the employer
7
would not have discriminated against the employee. In this
case, plaintiff alleges that Findsen sexually harassed Rich by
making hostile and offensive comments about her gender.
Accordingly, plaintiff has sufficiently alleged that, but for
the fact of Rich’s sex, she would not have been the object of
harassment, and thus plaintiff meets the second element.
However, in order to recover for sexual harassment,
plaintiff must not only show that the employee was
discriminated against because of sex, she must also show that
the employee was “subjected to unwelcome sexual conduct or
communication.” Radtke, supra at 382. This third element is
derived from MCL 37.2103(i), which provides that “[s]exual
harassment means unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct or
communication of a sexual nature . . . .” In this case,
plaintiff concedes that there were no “unwelcome sexual
advances, requests for sexual favors, [or] other verbal or
physical conduct or communication of a sexual nature . . . .”
Plaintiff argues, instead, that the communication was gender
based and that this type of communication can also constitute
sexual harassment, pursuant to Koester.
In Koester, supra at 10, this Court, in a four-to-three
decision, concluded that “harassment on the basis of a woman’s
pregnancy is sexual harassment.” Again, the CRA, MCL
8
37.2202(1), prohibits employers from discriminating against
individuals on the basis of sex with respect to a condition of
employment. The CRA, MCL 37.2201(d), further provides that
“‘[s]ex’ includes, but is not limited to, pregnancy . . . .”
Accordingly, discrimination because of a woman’s pregnancy is
a form of discrimination because of sex. However, it is
obviously not the only type of discrimination because of sex
under the CRA. MCL 37.2103(i) also provides that
“[d]iscrimination because of sex includes sexual harassment.”
Accordingly, sexual harassment is another type of
discrimination because of sex.
Although Koester, supra at 11, correctly recognized that
“discrimination on the basis of a woman’s pregnancy and sexual
harassment are ‘two subsets of sex discrimination,’” it
incorrectly concluded, in our judgment, that “harassment on
the basis of a woman’s pregnancy is sexual harassment.” Id.
at 10. Even assuming that harassment based on pregnancy may
constitute discrimination based on pregnancy, and thus sex
discrimination, harassment based on pregnancy that is not at
all sexual in nature simply is not sexual harassment.8 That
8
When we refer to harassment based on pregnancy and
pregnancy discrimination in this opinion, we are referring to
conduct or communication that is pregnancy-based and that is
not sexual in nature. This sort of conduct or communication
is not sexual harassment. However, contrary to the dissent’s
contention, we do not foreclose the possibility that
(continued...)
9
is, although harassment based on pregnancy and sexual
harassment may both constitute sex discrimination, they
clearly do not both constitute sexual harassment.9
Pregnancy discrimination is sex discrimination, but it is
not sexual harassment. In order to prove pregnancy
discrimination, one must show that the employer discriminated
against the employee on the basis of a pregnancy. However, in
order for one to prove sexual harassment, one must show that
there was either “unwelcome sexual advances, requests for
sexual favors, [or] other verbal or physical conduct or
communication of a sexual nature . . . .”10 MCL 37.2103(i).
8
(...continued)
pregnancy-based comments may rise to the level of sexual
harassment where they are also of a “sexual nature.”
9
The Court of Appeals panel in Koester v Novi concluded
that, even though evidence of harassment based on plaintiff’s
pregnancy is not proof of sexual harassment, it may be proof
of sex discrimination. 213 Mich App 653, 670 n 5; 540 NW2d
765 (1995). In the present case, we do not address whether
harassment based on pregnancy may constitute sex
discrimination because, even assuming that it does, that does
not change the fact that harassment based on pregnancy is not
sexual harassment, and thus, that the Supreme Court in Koester
erred in holding otherwise. Likewise, because the plaintiff
in the present case only asserts a claim of sexual harassment,
we do not address whether harassment based on sex may
constitute sex discrimination.
10
As Justice Weaver in her partial dissent in Koester
explained:
While sexual harassment technically may be a
“subset” of sexual discrimination, a claim for
sexual harassment requires different proofs
(continued...)
10
Accordingly, pregnancy discrimination and sexual harassment
consist of substantially different elements, and thus a person
asserting a claim of sexual harassment must prove something
considerably different from a person asserting a claim of
pregnancy discrimination.
Further, although article two of the CRA, MCL 37.2201(d),
defines “sex” to include pregnancy, the Supreme Court in
Koester erred in applying this definition of “sex” to the
definition of “sexual harassment” found in article one of the
CRA, MCL 37.2103(i). Koester stated, “to say that comments of
a ‘sexual nature’ do not include comments about a woman’s
pregnancy ignores the specific definition of sex as contained
in the act.” Koester, 458 Mich 10-11. However, the
definition of “sex” found in article two, which includes
pregnancy, is preceded by the language, “As used in this
article . . . .” MCL 37.2201 (emphasis added). Therefore,
this definition of “sex” is only applicable to article two.
That is, although “sex” includes pregnancy for the purposes of
article two, “sex” does not include pregnancy for the purposes
10
(...continued)
including proof of “unwelcome sexual advances,
requests for sexual favors, and other verbal or
physical conduct or communication of a sexual
nature.” Thus, while sexual harassment is always a
form of sex discrimination, all cases of sex
discrimination do not necessarily amount to sexual
harassment. [458 Mich 22-23.]
11
of article one, the article at issue here. Accordingly, the
Koester Court erred in applying article two’s definition of
“sex” to the definition of “sexual harassment” found in
article one.
To recapitulate, the CRA, MCL 37.2202(1)(a), prohibits
employment discrimination because of sex. The CRA, MCL
37.2201(d), defines “sex” to include pregnancy. Therefore, by
concluding that harassment based on pregnancy is sexual
harassment, the Koester Court also concluded that harassment
based on gender is sexual harassment, even though such
harassment is not at all of a sexual nature. However, the
CRA, MCL 37.2103(i), defines “sexual harassment” as “unwelcome
sexual advances, requests for sexual favors, and other verbal
or physical conduct or communication of a sexual nature
. . . .” It is clear from this definition of sexual
harassment that only conduct or communication that is sexual
in nature can constitute sexual harassment, and thus conduct
or communication that is gender-based, but that is not sexual
in nature, cannot constitute sexual harassment.11 Accordingly,
11
The dissent misconstrues our opinion as concluding that
“gender-based harassment ‘is not at all sexual in nature
. . . .’” Post at 2. To the contrary, our conclusion is not
that conduct cannot be both gender-based and sexual in nature,
and thus that conduct that is gender-based can never
constitute sexual harassment; rather, our conclusion is simply
that “conduct or communication that is gender-based, but is
not sexual in nature, does not constitute sexual harassment as
(continued...)
12
we overrule Koester to the extent that it concludes that
harassment based on gender that is not at all sexual in nature
constitutes sexual harassment under the CRA.12
The CRA, MCL 37.2103(i), clearly defines a hostile-work
environment claim based on sexual harassment as one involving
“unwelcome sexual advances, requests for sexual favors, [or]
other verbal or physical conduct or communication of a sexual
nature . . . .” In this case, plaintiff concedes that there
were no “unwelcome sexual advances, requests for sexual
favors, [or] other verbal or physical conduct or communication
11
(...continued)
that term is clearly defined in the CRA.” See p 2. However,
if conduct is gender-based and sexual in nature, it may well
constitute sexual harassment.
12
The Supreme Court in Koester erred in relying on a
United States Supreme Court case that concluded that under
title VII (now title 42) “[a] trier of fact may find sexual
harassment when ‘the harasser is motivated by general
hostility to the presence of women in the workplace.’”
Koester, supra at 15, quoting Oncale v Sundowner Offshore
Services, Inc, 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 201
(1998). The CRA specifically defines “sexual harassment,”
while title VII does not. Therefore, while the United States
Supreme Court may not be bound by any specific definition of
“sexual harassment,” this Court is. As the Court of Appeals
explained in Koester:
[U]nlike the general language of title VII,
the CRA specifically defines “sexual harassment” as
unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or
communication of a sexual nature. The
Legislature’s choice of language forecloses our
reliance on title VII precedents to interpret
sexual harassment under the CRA. [213 Mich App
668-669.]
13
of a sexual nature . . . .”13 Accordingly, plaintiff clearly
has not established a claim of sexual harassment under the
CRA.
IV. STARE DECISIS
Overruling precedent must, of course, be undertaken with
caution and must only be done after careful consideration of
the effect of stare decisis. That is, courts must consider
“(a) whether the earlier decision was wrongly decided, and (b)
whether overruling such decision would work an undue hardship
because of reliance interests or expectations that have
arisen.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 757;
13
The dissent states that “[p]laintiff alleged that
decedent Rich . . . suffered . . . harassment of a ‘sexual’
nature,” post at 2, that plaintiff’s hostile-work-environment
action is “allegedly nonsexual,” id. at 6, and that
“[p]laintiff’s counsel did allege harassment of a sexual
nature,” id. at 25. However, no allegations of harassment of
a sexual nature can be found in plaintiff’s complaint.
Further, at the hearing on defendant’s motion for summary
disposition, plaintiff’s counsel specifically stated that the
alleged harassment was not sexual in nature. The dissent
mistakenly looks to plaintiff’s motion for reconsideration and
its accompanying affidavits for support for its assertion that
plaintiff alleged harassment of a sexual nature. The trial
court denied plaintiff’s motion for reconsideration and the
merits of that decision are not presently before this Court.
Instead, what is before this Court is whether the trial court
erred in granting summary disposition to defendants on
plaintiff’s sexual-harassment claim. Only the pleadings may
be considered when a motion for summary disposition is based,
as this one was, on MCR 2.116(C)(8). MCR 2.116(G)(5).
Therefore, there is absolutely no basis to look to plaintiff’s
motion for reconsideration and its accompanying affidavits to
determine whether the trial court erred in concluding that
plaintiff’s pleadings “failed to state a claim on which relief
can be granted.” MCR 2.116(C)(8).
14
641 NW2d 567 (2002).
With regard to the first inquiry, we believe, as we have
already observed, that Koester was wrongly decided. The CRA,
MCL 37.2103(i), specifically defines “sexual harassment” as
“unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct or communication of a sexual
nature . . . .” Therefore, the conclusion reached in Koester
that gender-based harassment that is not at all sexual in
nature can constitute sexual harassment is clearly wrong.
With regard to the second inquiry, we must examine
“whether the previous decision has become so embedded, so
accepted, so fundamental, to everyone’s expectations that to
change it would produce not just readjustments, but practical
real-world dislocations.” Robinson v Detroit, 462 Mich 439,
466; 613 NW2d 307 (2000). We conclude that the decision in
Koester has not become “so embedded, so accepted, so
fundamental” within our legal system that overruling it will
interfere with any legitimate reliance or expectation
interests. “[T]o have reliance, the knowledge must be of the
sort that causes a person or entity to attempt to conform his
conduct to a certain norm before the triggering event.” Id.
at 467. Overruling Koester will not disrupt any reliance
interests as neither the plaintiff’s decedent nor the
defendants could conceivably have relied on our decision in
15
Koester to their detriment. In no respect did any of them
alter conduct in an attempt to conform such conduct to our
decision in Koester. That is, assuming that the employer here
did harass the plaintiff’s decedent on the basis of gender, it
certainly did not do so in reliance on our decision in
Koester, which concluded that such conduct, in fact,
constituted sexual harassment under the CRA. Nor could the
plaintiff’s decedent here have altered her conduct in any way
in detrimental reliance on Koester.14 Moreover, it is hard to
envision how any employer or employee conceivably could have
altered their conduct in any way in detrimental reliance on
Koester. Further, as this Court stated in Robinson, supra at
467:
[I]t is well to recall in discussing reliance,
when dealing with an area of the law that is
statutory . . . , that it is to the words of the
statute itself that a citizen first looks for
guidance in directing his actions. This is the
essence of the rule of law: to know in advance what
the rules of society are. Thus, if the words of
the statute are clear, the actor should be able to
14
Contrary to the dissent’s contention, we do not
“ignore[] the effect on this particular plaintiff[’s
decedent], and any plaintiff with a pending hostile
environment claim that is not specifically sexual in nature.”
Post at 17. Rather, we have specifically considered and
addressed this issue and, as explained above, have concluded
that plaintiff’s decedent could not have possibly changed her
conduct in any way in reliance on our decision in Koester.
Further, we are not deciding here that plaintiff is not
entitled to any relief. Rather, we are simply deciding that
plaintiff is not entitled to relief for the claim of hostile
work environment based on sexual harassment.
16
expect . . . that they will be carried out by all
in society, including the courts. In fact, should
a court confound those legitimate citizen
expectations by misreading or misconstruing a
statute, it is that court itself that has disrupted
the reliance interest.[15]
Accordingly, our decision today, that gender-based harassment
that is not sexual in nature does not constitute sexual
harassment under the plain language of the CRA, will not
create any “practical real-world dislocations.”16
15
The dissent criticizes us for “ignor[ing] the
instability that results from this Court’s weak adherence to
the principle of stare decisis.” Post at 17. However, the
dissent seems oblivious to the instability that results from
courts of law failing to accord serious consideration to the
clear words of the law. While the majority in this case, at
least, has sought to balance these respective instabilities,
the dissent appears not to recognize the latter. Nor does the
dissent appear to recognize that a recurrent source of
disagreement between this majority and the dissent arises from
the majority’s determination to give meaning to the clear
words of the law. A principal rationale for doing this, of
course, is to limit the extent to which this Court in the
future must contribute to either of these potential sources of
legal instability. To conclude, as the dissent does, that
sexual harassment includes conduct or communication of a
nonsexual nature, even though MCL 37.2103(i) clearly defines
“sexual harassment” as “conduct or communication of a sexual
nature,” would be, in our judgment, to disregard the words
enacted by the Legislature and, not incidentally, create
future instability in the law.
16
During oral argument, plaintiff’s counsel, himself,
admitted that an overruling of Koester will not cause any
“practical real-world dislocations”:
Justice YOUNG : Do you anticipate that
employers, if Koester is trimmed in terms of its
broad implication, or overturned, that employers
generally are going to change their personnel
policies to reflect an ability—change from what
(continued...)
17
For these reasons, we conclude that Koester was wrongly
decided and that overruling it will not interfere with
legitimate reliance or expectation interests. Accordingly,
after considering the imperatives of stare decisis, we believe
that it is appropriate to overrule Koester to the extent that
it is inconsistent with our decision here today, and with the
CRA, that harassment on the basis of gender that is not at all
sexual in nature does not constitute sexual harassment.
V. RESPONSE TO THE DISSENT
First and foremost, the dissent seems to be confused
about what this case is and is not about. This confusion has
led the dissent to construe our opinion to mean something that
it clearly does not mean. That is, the dissent repeatedly
mischaracterizes our opinion as concluding that hostile-work
16
(...continued)
they’re doing now?
Mr. Boog: No because I think most employers
want their employees to be free of any type of
harassment.
Justice YOUNG : I’m asking do you anticipate,
given your experience, that they’ll change their
policies.
Mr. Boog: I would tell them to keep the same
policies for the sake of employee morality [sic].
Further, employers will still have to consider the
possibility of liability under the different language of title
VII of the federal civil rights act.
18
environment actions are limited to claims of a sexual nature.
At no point in this opinion do we draw such a conclusion.
Rather, the only conclusion that we reach is the unremarkable
one that, because the CRA specifically defines sexual
harassment as “conduct or communication of a sexual nature,”
MCL 37.2103(i), in order to establish a hostile-work
environment case based on sexual harassment, a plaintiff must
show that the conduct complained of was sexual in nature.
That is sexual harassment means sexual harassment. The
dissent would construe sexual harassment to mean harassment of
any kind.
The dissent argues that we should reach this conclusion
because, since an employer cannot discriminate against an
employee on the basis of gender, MCL 37.2202(1)(a), it
necessarily follows that “an employer may not turn a blind eye
to conduct that creates a hostile work atmosphere,” post at 8,
on the basis of gender. However, we do not even address the
substance of this argument because plaintiff’s only allegation
here is that the employee was sexually harassed and that this
sexual harassment created a hostile work environment.17
17
Contrary to the dissent’s contention, it is clear from
plaintiff’s complaint that she is seeking recovery on the
basis of a sexual-harassment claim. Specifically, plaintiff’s
complaint states, “[t]his is an action primarily for offensive
work environment-sexual and weight harassment . . . ;”
“[t]hroughout the course of Decedent Rich’s employment, and
(continued...)
19
Therefore, the only issue before us is whether plaintiff has
established a prima facie case of sexual harassment.
Accordingly, there is no need for us to reach out and address
whether the CRA recognizes a claim for hostile work
environment based on anything other than sexual harassment.18
17
(...continued)
including, but not limited to within three years of her death,
Decedent Rich was sexually harassed . . . ;” and “[t]he
conduct of Defendants, and the agents, employees and
representatives of Defendants State of Michigan and Michigan
Department of State Police in sexually harassing Decedent Rich
. . . .” [Emphasis added.] In addition, as the dissent
recognizes, during oral argument, when specifically asked if
the only claim that was alleged was one based on sexual
harassment, plaintiff’s counsel answered in the affirmative.
18
Contrary to the dissent’s overheated assertions, our
opinion does not “oversimplif[y] the Civil Rights Act’s
hostile-work-environment proscription,” “necessarily confine[]
hostile-work-environment claims to those authorized by MCL
37.2103(i)(iii),” “severely constrict[] the scope of
Michigan’s Civil Rights Act,” or “eviscerate[] Michigan’s
hostile-work-environment jurisprudence” by “necessarily
precluding the recognition of actions for hostile work
environments based on religion, race, color, national origin,
age, sex (inasmuch as the harassment is not overtly ‘sexual’),
height, weight, or marital status under § 2202 of Michigan’s
Civil Rights Act.” Post at 2, 6, 8. Instead, our opinion
does not even address whether Michigan’s Civil Rights Act
creates a hostile-work-environment action based on something
other than sexual harassment because, as explained above, all
that is before us today is a hostile-work-environment action
that is based on sexual harassment. Plaintiff has not even
attempted to bring a hostile-work-environment action based on
anything other than sexual harassment. Contrary to the
dissent’s assertion, we are not concluding that “victims of
discrimination [may no longer] assert hostile-work-environment
claims unless the activity at issue is ‘sexual’ in nature,”
post at 16; instead, what we are concluding here today is that
a plaintiff may not assert a hostile-work-environment claim
based on sexual harassment without showing that the complained
(continued...)
20
See n 9.
Further, we disagree with the dissent’s assertion that
this Court is somehow bound to interpret Michigan’s Civil
Rights Act in accordance with the federal courts’
interpretation of the federal civil rights act. See n 11.
Even if, as the dissent states, the Michigan Legislature
relied heavily on the federal civil rights act in drafting
Michigan’s Civil Rights Act, the Michigan Legislature was
clearly not bound by the federal civil rights act. That is,
the Michigan Legislature was free to adopt a civil rights act
that differed from the federal civil rights act, and although,
as the dissent points out, there are many similarities between
the two acts, the Michigan Legislature did, in fact, choose to
adopt an act that is different from the federal act. Despite
the dissent’s determination not to allow them to do so, the
18
(...continued)
of conduct was of a sexual nature.
The dissent further criticizes us for failing to
recognize that in a hostile-work-environment action a
plaintiff need not prove that she suffered a “tangible
employment action” or an “economic loss.” Post at 10, 26. We
are baffled by this criticism because nowhere in this opinion
do we even suggest that a plaintiff in a hostile-work
environment action must prove that she suffered a tangible
employment action or an economic loss. Instead, we simply
conclude that, because it is uncontested that the conduct
complained of here was not at all sexual in nature, plaintiff
has not established a prima facie case of hostile work
environment based on sexual harassment because the CRA clearly
defines sexual harassment as “conduct or communication of a
sexual nature . . . .” MCL 37.2103(i).
21
Michigan Legislature is allowed to determine for itself the
extent to which it wishes to track the language of the federal
law. In particular, Michigan’s Civil Rights Act is different
from the federal civil rights act with regard to its treatment
of sexual harassment. The dissent fails to respect this
difference and, instead, concludes that because these acts are
nearly identical they must be construed to mean exactly the
same thing. We cannot agree that any time the Michigan
Legislature creates a law that is “similar” to a federal law,
it must be made identical, and the two laws must be
interpreted to mean exactly the same thing.19
19
The dissent criticizes us for “depart[ing] from this
sound tradition, and in doing so mak[ing] sweeping changes to
our employment-discrimination jurisprudence.” Post at 6. To
say the least, it is no “sweeping change” to construe
different laws in a different manner. Unlike the dissent, we
refuse to ignore the Michigan Legislature’s express definition
of “sexual harassment,” and, instead, to adopt the federal
courts’ definition of “sexual harassment” pursuant to an
altogether different law. This refusal is not based on a
preference for one definition over the other, but on our
recognition of our obligation to adhere to the clear language
of the law.
The dissent characterizes our attempt to give effect to
the Legislature’s express definition of “sexual harassment” as
“a perfunctory textual analysis that misconstrues our
Legislature’s intent.” Post at 8. It is unfortunate that the
dissent feels this way because we do not know how the
Legislature could have made its intent any more clear. The
Legislature defined “sexual harassment” as “conduct or
communication of a sexual nature . . . .” MCL 37.2103(i). In
light of this clear definition, we are at a loss to know how
the dissent can conclude with a straight face that the
Legislature intended sexual harassment to include conduct or
(continued...)
22
Title VII of the federal civil rights act, like the
Michigan Civil Rights Act, prohibits discrimination because of
sex. However, unlike our civil rights act, title VII does not
specifically prohibit and define “sexual harassment.” Our
civil rights act specifically defines “sexual harassment” as
“conduct or communication of a sexual nature . . . .” MCL
37.2103(i). Title VII, on the other hand, simply prohibits
discrimination because of sex and the federal courts have
construed this to include sexual harassment. Meritor Savings
Bank, FSB v Vinson, 477 US 57, 66-67; 106 S Ct 2399; 91 L Ed
2d 49 (1986). That is, “federal case law has created a cause
of action for sexual harassment under the general prohibition
against gender discrimination,” Koester, 213 Mich App 668,
while, the Michigan Legislature has specifically created a
cause of action for both sex discrimination and sexual
harassment.20
19
(...continued)
communication of a nonsexual nature. If, as the dissent seems
to believe, sexual harassment includes conduct or
communication of a sexual and of a nonsexual nature, wouldn’t
that mean that sexual harassment simply includes all conduct
or communication? Unlike the dissent, we are comfortable in
concluding that the Legislature intended what it said.
Further, we do not find the Legislature’s intent that “sexual
harassment” means harassment that is sexual in nature to be in
the slightest bit surprising or unexpected.
20
For these reasons, we agree with the analysis in the
Court of Appeals decision in Koester, 213 Mich App 668-669,
and in the partial dissent to this Court’s decision in
(continued...)
23
VI. CONCLUSION
The CRA prohibits sexual harassment, which is defined in
that act as “unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or communication
of a sexual nature . . . .” MCL 37.2103(i). Accordingly,
conduct or communication that is gender-based, but is not
sexual in nature, does not constitute “sexual harassment” as
that term is defined in the CRA. Therefore, in this case,
where plaintiff concedes that the communication was not sexual
in nature, but contends that it was gender-based, plaintiff
has not set forth a claim of sexual harassment under the CRA.
For these reasons, we reverse the judgment of the Court of
Appeals and reinstate the circuit court’s order granting
summary disposition in favor of defendants.
Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
20
(...continued)
Koester, 458 Mich 23-24, concluding that we should not rely on
title VII precedents to interpret sexual harassment under the
language of our very different civil rights act.
24
S T A T E O F M I C H I G A N
SUPREME COURT
CAROL HAYNIE, Personal
Representative for the ESTATE OF
VIRGINIA RICH, Deceased,
Plaintiff-Appellee,
v No. 120426
THE STATE OF MICHIGAN and THE
MICHIGAN DEPARTMENT OF STATE
POLICE,
Defendants-Appellants,
and
DANIEL KECHAK and DANIEL PAYNE,
Defendants.
WEAVER, J. (concurring).
I concur in the result and reasoning of the majority,
except that I do not join in part V, “Response to the
Dissent.”
Elizabeth A. Weaver
S T A T E O F M I C H I G A N
SUPREME COURT
CAROL HAYNIE, Personal
Representative for the ESTATE
OF VIRGINIA RICH, Deceased,
Plaintiff-Appellee,
v No. 120426
THE STATE OF MICHIGAN and
THE MICHIGAN DEPARTMENT OF
STATE POLICE,
Defendants-Appellants,
and
DANIEL KECHAK and DANIEL PAYNE,
Defendants.
___________________________________
CAVANAGH, J. (dissenting).
Today the majority rejects plaintiff’s sex-based
hostile-work-environment claim because it is not sexual in
nature. According to the majority, “conduct or communication
that is gender-based, but is not sexual in nature, does not
constitute sexual harassment as that term is clearly defined
in [MCL 37.2103(i) of] the [Civil Rights Act].” Ante at 2.
By dismissing plaintiff’s claim, the majority severely
constricts the scope of Michigan’s Civil Rights Act,
necessarily precluding the recognition of actions for hostile
work environments based on religion, race, color, national
origin, age, sex (inasmuch as the harassment is not overtly
“sexual”), height, weight, or marital status under § 2202 of
Michigan’s Civil Rights Act.
Because the majority oversimplifies the Civil Rights
Act’s hostile-work-environment proscription and mistakenly
concludes that gender-based harassment “is not at all sexual
in nature,” I must respectfully dissent. Ante at 1.
Facts & Proceedings
Plaintiff alleged that decedent Rich, employed for more
than twenty-five years as a capital security officer with the
Michigan State Police, suffered weight- and gender-based
harassment, as well as harassment of a “sexual” nature.1
The trial court summarily disposed of plaintiff’s sexual
harassment claim on defendant’s motion, concluding that the
alleged conduct was gender-based and, thus, not of a “sexual”
nature, as required by § 2103(i)(iii).
Plaintiff’s counsel submitted a motion for
reconsideration, which was supported by an affidavit from
decedent’s sister.2 The affidavit alleged that decedent had
1
Joint Appendix, p 19a (para 31), citing MCL 37.2101.
2
Brief in Support of Plaintiff’s Motion for Rehearing and
Reconsideration, filed May 5, 1998, in the Ingham Circuit
(continued...)
2
repeatedly and continually received sexually explicit cartoons
and other material of a sexual nature in her mailbox, to which
her supervisors failed to adequately respond.3 Counsel also
attached a grievance filed by decedent against a coworker,
claiming the colleague pushed and hit her, and used “sexual
harassment talk” to make her look like “one of the guys” in
front of the new recruits.4 In addition, the grievance
alleged that the same individual directed additional unwelcome
sexual comments at decedent.5 The trial judge denied
plaintiff’s motion for reconsideration and refused to allow
plaintiff’s counsel to amend the complaint.
Plaintiff filed an interlocutory appeal, which the Court
of Appeals denied. After the parties stipulated the dismissal
of plaintiff’s weight-based harassment claim, plaintiff filed
an appeal as of right with the Court of Appeals, which
reversed, holding that plaintiff alleged facts sufficient to
support a sexual-harassment claim.
2
(...continued)
Court.
3
Perreault Affidavit, paragraphs 5, 10, p 2.
4
See attachment to plaintiff’s motion for
reconsideration, filed May 5, 1998.
5
Id.
3
The Elliott-Larsen Civil Rights Act
When the Michigan Legislature drafted our Civil Rights
Act, MCL 37.2101 et seq., it relied heavily on the original
federal title VII statutes banning workplace discrimination.
Reviewing the text of each confirms this design. MCL
37.2202(1) of Michigan’s Civil Rights Act provides:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual with respect to employment,
compensation, or a term, condition, or privilege of
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
(b) Limit, segregate, or classify an employee
or applicant for employment in a way that deprives
or tends to deprive the employee or applicant of an
employment opportunity, or otherwise adversely
affects the status of an employee or applicant
because of religion, race, color, national origin,
age, sex, height, weight, or marital status.
Similarly, the federal statute provides:
(a) It shall be an unlawful employment
practice for an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any way
which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or
4
national origin. [42 USC 2000e-2.]
But for the addition of age, height, weight, and marital
status as prohibited grounds of discrimination, as well as a
few minor drafting variations, MCL 37.2202(1) and 42 USC
2000e-2 would be identical.
As with any statute subject to judicial review, our
courts have developed rules that articulate the necessary
elements of statutory claims. Because Michigan’s employment
discrimination statute so closely mirrors federal law, we
often rely on federal precedent for guidance. See Radtke v
Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993), quoting
Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 525; 398
NW2d 368 (1986) (“While this Court is not compelled to follow
federal precedent or guidelines in interpreting Michigan law,
this Court may, ‘as we have done in the past in discrimination
cases, turn to federal precedent for guidance in reaching our
decision.’”). As a result, employment-discrimination actions
under state law are nearly identical to federal actions. For
example, our courts have recognized both disparate-treatment
and disparate-impact actions identical to those articulated by
the United States Supreme Court.6
6
See Lytle v Malady (On Rehearing), 458 Mich 153, 173 n
19; 579 NW2d 906 (1998), citing McDonnell Douglas Corp v
Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)
(observing that Michigan adopted the four-part disparate
(continued...)
5
Regrettably, the majority now departs from this sound
tradition and, in doing so, makes sweeping changes to our
employment-discrimination jurisprudence. Hostile-work
environment actions, available on the basis of any ground
articulated in the federal statute, will now be limited to
claims of a sexual nature under our state Civil Rights Act.
By dismissing plaintiff’s allegedly nonsexual hostile
work-environment action, the majority necessarily confines
hostile-work-environment claims to those authorized by MCL
37.2103(i)(iii) and rejects federal precedent that recognizes
hostile-work-environment actions on the basis of statutory
text nearly identical to our own, i.e., § 2202. Although the
majority has not acknowledged the effect of its holding, it is
important to emphasize that the Court would not dismiss
plaintiff’s sex-based claim if it recognized that hostile
work-environment actions could be brought under § 2202.
Today’s ruling is particularly significant because a
hostile-work-environment claim is the only statutory remedy
cognizable when an employee suffers pervasive and severe forms
(...continued)
treatment proof from the United States Supreme Court's
McDonnell Douglas test to prove a prima facie case of
discrimination); Smith v Consolidated Rail Corp, 168 Mich App
773, 776; 425 NW2d 220 (1988), citing Albemarle Paper Co v
Moody, 422 US 405, 425; 95 S Ct 2362; 45 L Ed 2d 280 (1975)
(articulating disparate-impact action as prescribed by the
Supreme Court).
6
of discrimination, but experiences no tangible employment
action. No longer will an employee subject to a sex-based
(but not overtly sexual) hostile work environment find
redress, even though an employer may fail to adequately
respond.
Hostile-Work-Environment Actions
Although this Court has never before expressly analyzed
the origin of nonsexual hostile-work-environment claims under
our Civil Rights Act, our courts have recognized that such
claims may be asserted on the basis of any ground enumerated
in Michigan’s Civil Rights Act in MCL 37.2202. Malan v Gen
Dynamics Land Sys, Inc, 212 Mich App 585, 587; 538 NW2d 76
(1995) (holding that a hostile-work-environment claim is
actionable on the basis of any one of the enumerated
classifications in MCL 37.2202), citing Rasheed v Chrysler
Corp, 445 Mich 109; 517 NW2d 19 (1994) (religion-based
harassment from coworkers and supervisors); Sumner, supra at
538 (race-based harassment from supervisors as a continuing
violation); Meek v Michigan Bell Co, 193 Mich App 340,
342-343; 483 NW2d 407 (1992) (sex-based and religion-based
harassment from supervisors); see also Jackson v Quanex Corp,
191 F3d 647 (CA 6, 1999) (recognizing race-based, hostile
environment action under the Civil Rights Act); Downey v
Charlevoix Co Bd of Rd Comm’rs, 227 Mich App 621; 576 NW2d 712
7
(1998) (recognizing disability-based, hostile-work-environment
action). These rulings both identify and effectuate our
Legislature’s intent to prohibit prejudicial discrimination in
the employment realm.
Lamentably, the majority now eviscerates Michigan’s
hostile-work-environment jurisprudence with a perfunctory
textual analysis that misconstrues our Legislature’s intent.
To clarify the errors present in the majority’s reasoning, I
will examine the text of the statute in light of its history
and context.
MCL 37.2202
The broad language of Michigan’s Civil Rights Act
expressly prohibits acts that “discriminate against an
individual with respect to employment, compensation, or a
term, condition, or privilege of employment . . . .” MCL
37.2202(1)(a). Neither may an employer “[l]imit, segregate,
or classify an employee . . . in a way that deprives or tends
to deprive the employee . . . of an employment opportunity, or
otherwise adversely affects the status of an employee . . . .”
MCL 37.2202(1)(b). This mandate prohibits employment
conditions that are likely to deprive an employee of an
opportunity or negatively affect her employment status. In
other words, an employer may not turn a blind eye to conduct
that creates a hostile work atmosphere on the grounds
8
enumerated above.
The United States Supreme Court has interpreted the
analogous federal statute—containing language nearly identical
to MCL 37.2202 of our Civil Rights Act—and has concluded that
its text supports hostile-work-environment claims on the basis
of any ground enumerated in 42 USC 2000e-2. According to that
Court, the prohibition on discrimination “is not limited to
‘economic’ or ‘tangible’ discrimination.” Meritor Savings
Bank, FSB v Vinson, 477 US 57, 64; 106 S Ct 2399; 91 L Ed 2d
49 (1986). “The phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent ‘to strike at the
entire spectrum of disparate treatment of men and women,’” and
extends to all forms of discrimination prohibited by the
federal statute. Meritor, supra at 64, and at 66, citing
Firefighters Institute for Racial Equality v St Louis, 549 F2d
506 (CA 8, 1977) (race); Compston v Borden, Inc, 424 F Supp
157 (SD Ohio, 1976) (religion); and Cariddi v Kansas City
Chiefs Football Club, 568 F2d 87, 88 (CA 8, 1977) (national
origin).
The phrase terms, conditions or privileges of
employment in [title VII] is an expansive concept
which sweeps within its protective ambit the
practice of creating a working environment heavily
charged with ethnic or racial discrimination . . .
. One can readily envision working environments so
heavily polluted with discrimination as to destroy
completely the emotional and psychological
stability of minority group workers . . . .
9
[Meritor, supra at 66, citing Rogers v Equal
Employment Opportunity Comm, 454 F2d 234, 238 (CA
5, 1971).]
With this recognition, the Supreme Court clarified that
the plain text of the federal statute prohibits severe and
pervasive employment discrimination—what we often refer to as
a hostile work environment—without regard to whether a
plaintiff suffers a tangible employment action. Instead of
acknowledging our identical legislative directive in § 2202,
which imposes no economic-loss requirement, the majority
ignores its relevance and focuses exclusively on subsection
2103(i), which simply clarifies that sex discrimination
includes sexual harassment. While I agree that subsection
2103(i) clarifies which forms of sexual harassment are
prohibited, it does not narrow MCL 37.2202, which outlaws
employer-sanctioned work environments hostile to employees on
the basis of, inter alia, sex.
MCL 37.2103(i)
The majority rejects my interpretation because MCL
37.2103(i) expressly authorizes sexual-harassment, hostile
work-environment claims, while the federal statute contains no
similar statutory counterpart. Apparently, the majority
assumes the legislative directive with regard to sexual
harassment in subsection 2103(i) precludes hostile-environment
claims on other bases, i.e., if our Legislature had wanted to
10
prohibit work environments inhospitable to employees on the
basis of, inter alia, race, religion, or sex, it would have
stated as much. However, this often disfavored canon of
negative implication is less than persuasive, particularly
when the origin of MCL 37.2103(i) is understood in context.
As the text indicates, our Legislature enacted 1980 PA
202, later codified as MCL 37.2103(i), to clarify that sexual
harassment was, indeed, prohibited by Michigan’s Civil Rights
Act. In drafting the text, the Legislature relied heavily on
language used by the federal agency charged with enforcing the
federal employment rights act, the Equal Employment
Opportunity Commission.
As originally enacted, 29 CFR 1604.11 provided:
(a) Harassment on the basis of sex is a
violation of Sec. 703 of Title VII. [1] Unwelcome
sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature
constitute sexual harassment when
(1) submission to such conduct is made either
explicitly or implicitly a term or condition of an
individual's employment,
(2) submission to or rejection of such conduct
by an individual is used as the basis for
employment decisions affecting such individual, or
(3) such conduct has the purpose or effect of
unreasonably interfering with an individual's work
performance or creating an intimidating, hostile,
or offensive working environment.
[1]
The principles involved here continue to apply to
race, color, religion or national origin.
__________________________________________________
11
Our statute is nearly identical. MCL 37.2103(i) provides:
Discrimination because of sex includes sexual
harassment. Sexual harassment means unwelcome
sexual advances, requests for sexual favors, and
other verbal or physical conduct or communication
of a sexual nature under the following conditions:
(i) Submission to the conduct or communication
is made a term or condition either explicitly or
implicitly to obtain employment, public
accommodations or public services, education, or
housing.
(ii) Submission to or rejection of the conduct
or communication by an individual is used as a
factor in decisions affecting the individual's
employment, public accommodations or public
services, education, or housing.
(iii) The conduct or communication has the
purpose or effect of substantially interfering with
an individual's employment, public accommodations
or public services, education, or housing, or
creating an intimidating, hostile, or offensive
employment, public accommodations, public services,
educational, or housing environment.
By codifying the federal guidelines, our Legislature merely
clarified that the sexual-harassment protections in the
federal statutes were analogous in scope to those in
Michigan’s Civil Rights Act. Both those lobbying for and
against the bill agreed that harassment cases in general—and
sexual-harassment cases in particular—could be brought under
the current statute. House Analysis, HB 4407 (August 15,
1980). In fact, opponents of the bill argued the amendment
might cause confusion within the judicial branch:
12
The civil rights act’s coverage of sexual
harassment should not be changed as proposed by the
bill. The act currently covers sexual harassment
in the same manner as it is covered by the federal
government in Title VII cases. That is, sexual
harassment is covered under the general language
prohibiting sexual discrimination. There has been
a series of administrative and judicial cases
clearly enunciating the appropriateness of this
coverage, and it is feared that future anti-sexual
harassment court decisions based on federal
provisions and precedents would not be applicable
or have a significant impact on Michigan if this
state was prohibiting sexual harassment under
different statutory language than used on the
federal level. [Id. at 3.]
While acknowledging this concern, those in favor of the
provision felt that the amendment was “necessary to ‘motivate’
the [Michigan Department of Civil Rights] to treat sexual
harassment as a bona fide civil rights violation . . . .” Id.
at 2. Before this enactment, the Department of Civil Rights
often refused to pursue sexual-harassment claims unless the
victim was also a member of a minority group. Id.
Forebodingly, members of the Legislature worried that, with
the addition of MCL 37.2103(i), the Michigan judiciary might
reject the utility of federal precedent in nonsexual hostile
work-environment actions even though clearly authorized by MCL
37.2202(1). Unfortunately, this fear has come to pass.
The majority would reject my construction, claiming it
gives limited meaning to 1980 PA 202. After all, if the Civil
Rights Act already prohibited discriminatory and hostile work
environments, 1980 PA 202 added little. Adding little,
13
however, does not mean adding nothing. As noted in the House
Bill Analysis, the enactment did clarify that sexual
harassment was prohibited. This affirmation was necessary in
light of the number of federal district court decisions that
refused to acknowledge that quid pro quo sexual harassment
constituted discrimination based on sex. See Miller v Bank of
America, 418 F Supp 233, 234 (ND Cal, 1976) (“essentially the
isolated and unauthorized sex misconduct of one employee to
another” not recognizable under title VII), rev’d Miller v
Bank of America, 600 F2d 211 (CA 9, 1979) (finding as a matter
of law that conduct of a sexual nature constituted
discrimination based on sex). Because the Michigan Department
of Civil Rights, which was responsible for enforcing the act,
all but refused to pursue such claims, our Legislature could
not leave it to the agency to address the issue as Congress
could. Viewed in context, one has little doubt that 1980 PA
202 served a significant purpose, even if it merely reiterated
the scope of protections afforded by the Civil Rights Act.
Moreover, any alleged redundancy under my interpretation
of MCL 37.2103(i)(iii) is also present in the majority’s
interpretation of subsections 2103(i)(i) and 2103(i)(ii)
(often referred to as quid pro quo harassment). Unless the
majority would construe the discrimination ban in employment
(MCL 37.2202), public accommodations (MCL 37.2302), and
14
education (MCL 37.2402) in a manner that would otherwise
permit unwelcome conduct of a sexual nature, then it must
agree that subsection 2103(i) merely clarified what the Civil
Rights Act had already proscribed. To now construe MCL
37.2103(i) in a fashion that limits the scope of protections
present throughout the act ignores both its specific text and
overall structure.
Although, on occasion, I have agreed with earlier
holdings that note that Michigan’s sexual-harassment doctrine
has a specific statutory basis in contrast to its federal
statutory counterpart,7 I find no legitimate reason to
conclude that hostile-work-environment claims should be
limited to incidents of harassment that are sexual in nature.
The plain text of the Michigan Civil Rights Act requires this
interpretation.
The majority’s failure to acknowledge the effect of its
decision is quite unfortunate. If plaintiff’s gender-based
hostile-work-environment claim must be dismissed because it is
not of an overtly “sexual” nature, then work environments
inimical to a reasonable person on the basis of religion,
race, color, national origin, age, sex (inasmuch as it refers
to “gender-based” discrimination), height, weight, or marital
7
See Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910
(2000); Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314
(1996).
15
status are no longer actionable. This interpretation cannot
be rationally construed from the text of Michigan’s Civil
Rights Act.
Stare Decisis
In its hasty attempt to explain Michigan’s civil-rights
jurisprudence, the majority continues by overruling Koester v
Novi, 458 Mich 1; 580 NW2d 835 (1998), and clarifying that
pregnancy, though not at issue here, is not of a sexual
nature. However, as I indicated in the Koester majority
opinion:
Under [that] reasoning, claims of racial
harassment would also fail (despite being
recognized by the federal courts), because the act
prohibits racial "discrimination" not "racial
harassment." This interpretation defies logic.
See Harrison v Metropolitan Gov't of Nashville &
Davidson Co, 80 F3d 1107 (CA 6, 1996), and Snell v
Suffolk Co, 782 F2d 1094 (CA 2, 1986) (allowing a
claim for racial harassment). [Koester, supra at
11 n 3.]
The majority purportedly justifies this shift by
attempting to clearly mark the boundaries of all things
“sexual.” In narrowly defining subsection 2103(i), the Court
attempts to foreclose actions previously recognized on the
basis of, inter alia, race, “gender,” national origin, or
religion. No longer may victims of discrimination assert
hostile-work-environment claims unless the activity at issue
is “sexual” in nature. This sweeping change is a direct
result of the majority’s rejection of Koester. Though the
16
majority opinion belies the significance of this shift,
Justice Taylor clarified the stakes at oral argument:
Justice TAYLOR: Wouldn't the distinction
between these two causes of action be that in the
case of discrimination the employee has to endure
certain kinds of unpleasant remarks until such time
as there is an adverse job action of some kind. In
the case of sexual harassment that isn't true. The
person who is the victim of that only need prove
that there has been a substantial interference with
the employee's employment or that this is creating
an intimidating, hostile or offensive work
environment.
[Attorney for Plaintiff]: I would agree with
that.
Justice TAYLOR: Isn't that the great sort of
overarching sort of written in neon understanding
of this.
[Attorney for Plaintiff]: I would agree with
that.
Although a majority now claims that overruling Koester
would work no “undue hardship because of reliance interests or
expectations that have arisen,” ante at 15, I suspect few
advocates in plaintiffs’ bar would agree. Robertson v
DaimlerChrysler Corp, 465 Mich 732, 757 (2002). Moreover, the
contention that overruling Koester would produce no “real
world dislocations,” ante at 17, ignores the effect on this
particular plaintiff, and any plaintiff with a pending
hostile-environment claim that is not specifically sexual in
nature. To claim that “it is hard to envision how any
employer or employee conceivably could have altered their
17
conduct in any way in detrimental reliance on Koester” ignores
the instability that results from this Court’s weak adherence
to the principle of stare decisis. Ante at 16 (emphasis in
original).8
To summarize, the majority overrules precedent and
rejects plaintiff’s claim because our Legislature did not
specifically articulate the parameters of hostile-work
environment claims for conduct not overtly sexual in nature.
In doing so, the Court relies on a rather weak canon of
negative implication9 and ignores the plain text of MCL
37.2202, which does not require an economic injury. The Court
also dismisses our Legislature’s intention to mimic the scope
8
To reassure its audience that overruling Koester is
appropriate, the majority quotes from Justice Young’s dialogue
with plaintiff’s counsel at oral argument. Ante at 18 n 16.
However, simply because counsel agreed that rejecting Koester
would produce no “practical real-world dislocations . . . .”,
it is important to note that only those employers subject to
the federal statutes will be forced to adhere to the higher
standards. Moreover, while employment handbooks provide
useful indicators of employers’ policies, few harassing work
environments are officially condoned. More often, employers
or their supervisors simply fail to respond adequately to
harassment from coworkers, as alleged by plaintiff in this
case. Therefore, although responsive to Justice Young’s
inquiry, I find little solace in counsel’s claim that he would
recommend employers retain their current employment
policies—in spite of their decreased liability pursuant to
this decision.
9
Eskridge, Frickey, & Garrett, Legislation and Statutory
Interpretation, (Foundation Press: New York, 2000) p 256
(“Descriptively, people do not necessarily intend their list
of directed activities to be comprehensive ones or even think
through all the permutations to which their directives might
be applied.”).
18
of protections afforded by federal antidiscrimination law, as
evident in the textual similarities of MCL 37.2202 and 42 USC
2000e-2. Finally, in a most ironic twist, the majority
overrules Koester under the guise of its respect for the rule
of law, i.e, statutory meaning should be predictable,
accessible, and neutrally applied. In light of the text
employed by our Legislature, which indicates a desire to
extend protections parallel in scope with federal law, our
Court’s reliance on federal precedent for guidance, and this
Court’s precedent in Koester, I cannot agree that the
majority’s interpretation furthers either our Legislature’s
intent or the rule of law.
Sexual Harassment Includes Gender-Based Discrimination
Though unnecessary to clarify the availability of
“gender-based” hostile-work-environment claims for the reasons
stated above, it is worth noting that the plain text of
subsection 2103(i) alone permits gender-based claims. When
“verbal or physical conduct or communication of a sexual
nature” is made a condition of or substantially interferes
with, inter alia, employment, the conduct is proscribed. Id.
This prohibition was enacted not because all things sexual are
inherently discriminatory when targeted at an individual on
the basis of her sex, but because sexual conduct that exploits
our socially constructed concepts of gender perpetuates
19
unlawful discrimination.
Our courts have recognized that conduct of a “sexual”
nature is not prohibited simply because it is “of or
pertaining to sex or the attribute of being either male or
female” or “existing or predicated with regard to sex.”
Oxford English Dictionary (2d ed). Rather, unwelcome sexual
conduct is prohibited because it risks exploiting gender-based
inequality.10 As noted in Radtke:
[S]exual harassment is prohibited in the
workplace because it violates civil liberty:
“Sexual harassment should be explicitly . . .
prohibited because it is a demeaning, degrading,
and coercive activity directed at persons on the
basis of their sex, the continuation of which is
often contingent on the harasser's economic control
over the person being harassed. It should be
outlawed because it violates basic human rights of
privacy, freedom, sexual integrity and personal
security.” [Radtke, supra at 380-381, quoting
House Bill Analysis 4407 (August 15, 1980).]
Just five years ago, in Koester, this Court acknowledged
10
Legal scholars have articulated this link:
[W]omen are socially defined as women largely
in sexual terms. The behaviors to which women are
subjected in sexual harassment are behaviors
specifically defined and directed toward the
characteristics which define women’s sexuality:
secondary sex characteristics and sex-role
behavior. It is no accident that the English
language uses the term sex ambiguously to refer
both to gender status (as in “the female sex”) and
to the activity of intercourse (as in “to have
sex”). The term sexual is used in both senses.
[MacKinnon, Sexual Harassment of Working Women
(Yale University Press: New Haven, 1979), p 182.]
20
that harassing conduct need not be specifically motivated by
sexual desire to support an inference of discrimination. It
is sufficient that the conduct “is motivated by general
hostility to the presence of women in the workplace.”
Koester, supra at 15, quoting Oncale, supra at 80.
“‘To be sure, the phrase "sexual harassment"
can be a misnomer. As several [federal] circuits
have now recognized, the touchstone of an
actionable . . . sexual harassment claim is not
whether the offensive conduct includes "sexual
advances or . . . other incidents with clearly
sexual overtones." . . . The critical inquiry "is
whether members of one sex are exposed to
disadvantageous terms or conditions of employment
to which members of the other sex are not exposed."
[Koester, supra at 13 (citations omitted), quoting
Mentch v Eastern Savings Bank, FSB, 949 F Supp
1236, 1245-1246 (D Md, 1997), quoting Harris v
Forklift Systems, Inc, 510 US 17, 25; 114 S Ct 367;
126 L Ed 2d 295 (1993).]
Contrary to the majority’s assertion, only by
acknowledging the link between sexual conduct and gender-based
inequality can the sexual-harassment provision, MCL
37.2103(i), be rationally applied.
Clarification of the Scope of this Action
The majority’s ardent response to my dissent suggests I
have misunderstood its position and the scope of its holding.
Ultimately, the reader will judge the accuracy of that
accusation. Nevertheless, I believe a certain degree of
clarification is required.
The majority claims that plaintiff only alleged a sexual
21
harassment claim and, therefore, “there is no need for [it] to
reach out and address whether the CRA recognizes a claim for
hostile work environment based on anything other than sexual
harassment.” Ante at 20. However, this position disregards
the allegations articulated in plaintiff’s complaint.
Plaintiff claimed the conduct of defendant’s employees, “in
sexually harassing [d]ecedent Rich, constitutes sexual
discrimination in violation of MCL 37.2101 . . . et seq.”
(Emphasis added.) Plaintiff stated that the “harassment
included, but was not limited to, frequent comments regarding
[d]ecedent Rich’s gender, weight and ability as a Capitol
Security Officer” and, “on many occasions, [Findsen] made
hostile and offensive comments to [d]ecedent Rich regarding
her sex, weight and ability as a Capitol Security Officer.”
Though the majority cannot dispute “sex discrimination,” as
proscribed by MCL 37.2202(1), has been alleged, it apparently
presumes that plaintiff seeks recovery only under a narrow
subcategory of “sex discrimination,” i.e., sexual harassment
as defined by MCL 37.2103(i)(iii). The majority claims that
this assumption justifies its refusal to entertain a hostile
work-environment claim based on sex, which includes gender.
Unfortunately, this interpretation deprives plaintiff of
a fair and honest reading of the complaint and altogether
ignores plaintiff’s position, as repeatedly documented in her
22
briefs to the circuit court, the Court of Appeals, and this
Court. Plaintiff noted that both federal and Michigan courts
“are increasingly recognizing claims for workplace harassment
that go beyond traditional sexual harassment cases.”11 To
support this claim, plaintiff’s counsel cited Michigan
precedent holding “that harassment based on any one of the
enumerated classifications [in MCL 37.2202] is an actionable
offense.” See n 11, each citing Malan v General Dynamics Land
Systems, Inc, 212 Mich App 585; 538 NW2d 76 (1995). I am
unable to identify what more plaintiff’s counsel could have
pleaded or argued in the written submissions to clarify
plaintiff’s theory for the majority.
Perhaps because the written submissions are adequate to
establish plaintiff’s claim, the majority attempts to support
its narrow interpretation by shifting the focus to counsel’s
comments at oral argument. Ante at 20 n 17. Justice Markman
queried plaintiff’s counsel, asking him whether he agreed with
defense counsel that “all of [plaintiff’s] eggs in this case
are in the sexual harassment basket and that sexual
11
Plaintiff’s Brief in Opposition to Defendant’s Third
Motion for Summary Disposition, filed June 17, 1998 in the
Ingham Circuit Court, pp 4-7; Plaintiff-Appellant’s
Application for Leave to Appeal, filed June 29, 1998, with the
Court of Appeals, pp 7-10; Plaintiff-Appellant’s Brief, filed
December 3, 1999, in the Court of Appeals, pp 10-12;
Appellee’s Brief on Appeal, filed December 4, 2002, in the
Michigan Supreme Court, pp 6-10.
23
discrimination other than sexual harassment hasn’t been
pleaded here.” Plaintiff’s counsel, Mr. Boog, responded.
Mr. Boog: We haven’t been given an
opportunity to plead that because we could not
amend our complaint but at the time we did this it
was considered a sexual harassment based on gender
based on federal decisions that came down at that
time.
Justice Taylor continued this line of questioning.
Justice Taylor: Now, that being the case, you
are attempting to come under the sexual harassment,
is that right.
Mr. Boog: Yes, but with the understanding
that I don’t believe the statutory language
excludes other types of sexual harassment besides
what’s in Section 103 and 104, the definitions that
we’ve talked about.
* * *
Justice Taylor: You’re not trying to suggest
that the activity here fell within the section 103
definition of sex harassment.
Mr. Boog: Yes I do your honor.
When viewed in context, this exchange clarifies that
plaintiff alleged a gender- or sex-harassment claim based on
MCL 37.2202(1) and MCL 37.2103(i). As noted above,
plaintiff’s counsel consistently relied on Malan, which
interpreted MCL 37.2202(1) in light of federal precedent.
Counsel’s response to Justice Markman concerning federal
precedent clarified plaintiff’s MCL 37.2202(1) gender-based
harassment theory, in light of the fact that the circuit court
granted defendant’s motion for summary disposition concerning
24
the sexual-harassment claim, thereby precluding an amendment
to the complaint that would have clarified the overtly sexual
nature of some of the conduct.
In addition, before the Court of Appeals issued
plaintiff’s judgment, this Court issued Koester, which held
that harassment as proscribed by MCL 37.2103(i)(iii) need not
be overtly sexual in nature. Not wanting to minimize the
value of Koester (and unaware that a majority of this Court
intended to overrule it), plaintiff’s counsel clarified that
he did, in fact, allege a violation under MCL 37.2103(i)(iii)
when asked by Justice Taylor. The clarification, however,
does not negate plaintiff’s continued reliance on MCL
37.2202(1) or Malan.
Nor can the majority rely on plaintiff’s use of “sexual
harassment” rather than “gender harassment” to artificially
narrow the scope of plaintiff’s claim. Plaintiff’s counsel
did allege harassment of a sexual nature, providing specific
proof of unwanted sexual communication in the motion for
reconsideration submitted to the circuit court.12 Hence, the
12
See n 2, Brief in Support of Plaintiff’s Motion for
Rehearing and Reconsideration, filed May 5, 1998, in the
Ingham Circuit Court, pp 2-3 and attached documents
(“Plaintiff has attached to her motion, the Affidavit of
Patricia Perreault, which confirms that the [d]ecedent
Virginia Rich was subjected to unwelcome sexual conduct and
communication. . . . Plaintiff also has attached several
documents that show that [d]ecedent Rich had filed a complaint
(continued...)
25
reference to MCL 37.2103(i)(iii) was not made simply as an
attempt to equate gender-based conduct with conduct of a
sexual nature—although the concepts are, at times, used
interchangeably by the bench and bar. Rather, plaintiff’s
counsel employed the term that best described the behavior to
which plaintiff was subjected, while also drawing upon the
protections afforded by MCL 37.2202(1) and Malan, supra, in
support of a hostile-environment claim not purely sexual in
nature.
In response, the majority might claim a narrow reading of
plaintiff’s briefs is required because plaintiff did not
specifically establish that “severe and pervasive harassment”
could constitute “discrimination.” Assuming this is an
accurate reflection of the majority’s position, the Court
apparently does not find it self-evident that repeated
exposure to derisive insults could constitute discrimination
—even if unaccompanied by a “tangible employment action.”
Hence, with the issuance of this opinion, no longer will a
victim of repeated racist, sexist, or otherwise offensive
conduct be permitted to bring a claim against a remiss
employer unless the victim has also been the target of a
12
(...continued)
with her employer for sexual harassment as well as contacted
several different attorneys regarding allegations of sexual
harassment.”).
26
tangible employment action or behavior of a sexual nature.
In sum, the majority unfairly neglects plaintiff’s
arguments and attempts to ignore the difficult and inescapable
issue presented by this case, i.e., whether hostile-work
environment actions may be alleged on the basis of nonsexual
conduct.
One wonders what the majority gains by adhering to an
artificially constrained reading of plaintiff’s theory of the
case. If done in an attempt to respect its role as a mere
interpreter of legislative intent, its decision today has the
opposite result, ignoring the text-based evidence that our
Civil Rights Act was intended to provide—at a minimum—those
protections afforded by federal law, in favor of a stilted
interpretation arguably motivated by policy considerations.
Application
As acknowledged by the majority, plaintiff alleged that
her decedent suffered a hostile work environment because of
her status as a woman. She maintained that the decedent was
subjected to severe and pervasive conduct because of her
gender. The decedent’s employer purportedly did not resolve
the issues or adequately respond to her complaints. These
allegations of harassment, motivated by sex-based animus, are
sufficient to withstand a motion for summary disposition.
Conclusion
27
Because the text of MCL 37.2202(1) indicates our
Legislature’s intent to track the scope of protections
provided by federal law, and because federal law recognizes
hostile-work-environment claims on any ground articulated in
42 USC 2000e-2, Meritor, supra, it is proper to conclude that
Michigan employees share the right to assert hostile-work
environment claims on the basis of any ground articulated in
MCL 37.2202(1). The text of Michigan’s Civil Rights Act
cannot reasonably be construed to permit work environments
hostile to an employee’s religion, race, color, national
origin, age, sex, height, weight, or marital status. Further,
sexual harassment is not limited to conduct of a strictly
sexual nature. For these reasons, I would affirm the judgment
of the Court of Appeals. Any other interpretation violates
fundamental principles of equality.
Michael F. Cavanagh
Marilyn Kelly
28