LYNETTE BURNS V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
LYNETTE BURNS,
FOR PUBLICATION
November 1, 2002
9:05 a.m.
Plaintiff-Appellee,
v
CITY OF DETROIT, a Municipal Corporation;
DERECK HICKS, Individually and in his Official
Capacity; TERRENCE HILL, Individually and in
his Official Capacity; and DARRYL HOPSON,
Individually and in his Official Capacity, Jointly
and Severally,
Defendants-Appellants.
No. 213029
Wayne Circuit Court
LC No. 95-529767-CL
ON REMAND
Updated Copy
January 31, 2003
Before: Meter, P.J., and Griffin and Saad, JJ.
METER, P.J.
This opinion addresses whether certain comments that formed the basis for a jury verdict
of workplace sexual harassment constitute protected speech under the United States and
Michigan Constitutions and whether the imposition of liability for the comments under the Civil
Rights Act, MCL 37.2101 et seq., raises concerns of vagueness and overbreadth. We conclude
that the comments at issue do not constitute protected speech and that the imposition of liability
does not raise concerns of vagueness and overbreadth. We therefore uphold the finding of sexual
harassment.
I. Facts and Procedural History
Plaintiff, who was a fingerprint technician for the Detroit Police Department, claimed that
two male co-workers on the midnight shift, defendants Terrence Hill and Darryl Hopson,1
sexually harassed her and that her supervisors did not take appropriate remedial actions after she
1
We note that the names of the individual defendants have been spelled various ways in the
briefs, transcripts, and lower court documents. This opinion employs the spelling used in the
caption of the original unpublished opinion issued in this case. See Burns v Detroit, unpublished
opinion per curiam of the Court of Appeals, issued October 31, 2000 (Docket No. 213029).
-1-
reported the harassment. Plaintiff sued for sexual harassment, retaliation, defamation, and
tortious interference with a business relationship, and the jury found for plaintiff on all four
claims. Defendants appealed as of right to this Court from the judgment. We2 upheld the jury's
verdict with regard to sexual harassment and retaliation, reversed the verdict with regard to the
two remaining claims, and remanded the matter for a new trial regarding damages.
Subsequently, defendants sought leave to appeal to the Supreme Court, which, in lieu of granting
leave to appeal, remanded the case back to this Court and asked us to consider whether the
remarks that formed the basis for the sexual harassment verdict constitute protected speech under
the United States and Michigan Constitutions and whether the liability imposed raises concerns
of vagueness and overbreadth. 465 Mich 946 (2002).
Hill and Hopson made the following comments, among others, while plaintiff performed
her job:3
"[D]on't lie on me bitch."
"[She's a] fucking [b]itch . . . ."
"[B]itch bring [your] ass back . . . ."
"[Your] problem [is you] don't have a man. You don't have a man that
fucks your ass every night. One good time you would be all right. That's why me
and Darryl hated working around a bunch of bitches."
"[T]hese fucking females up in here will drive you out of your goddamn
mind. That's what you can't let them do."
"You got to understand that these females in Ident[4] are unhappy women
who don't have men in their lives. For a woman who don't have a man to be
friends with another woman who don't have a man and getting advice from each
other don't make any sense[.] What kind of shit is that? These women don't have
nothing else in their lives."
"[I]f she had a man she wouldn't care if she is called a bitch or not. Man,
if somebody messed with my job knowing I got a wife and two kids, I'll stump
them. I'll follow her ass out to her car and stump the shit out of the bitch."
2
The original panel consisted of Presiding Judge Meter and Judges Gribbs and Griffin.
3
We note that we have deviated from this Court's usual practice of editing obscenities in
opinions because the specific subject matter of the instant remand is the abusive remarks
themselves and whether they constitute protected speech. Accordingly, viewing the remarks in
their entirety, although unpleasant, is critical to an understanding of this case.
4
This abbreviation refers to the Identification Bureau of the Detroit Police Department.
-2-
"[I]f you catch her ass out there . . . and stump the living shit out of her
fucking ass . . . [n]obody will see you and I'll drive pas[t] like I didn't see
anything. If you don't wanna do it I got some partners from my old neighborhood
who could do it for you."
"[She's a] male hating female."
Hill and Hopson also said that plaintiff was abnormal for being over thirty years old and without
a man. Moreover, plaintiff testified that she had received irritating, romantic notes from Hopson
throughout her years at her job and that Hill sometimes blew in her ear and asked her why she
covered her body.
After plaintiff reported these comments and threats, a meeting took place to discuss
various workplace issues. At this meeting, defendant Dereck Hicks, one of the fingerprint
technician supervisors, stated that women are apt to "cry sexual harassment" because of
premenstrual syndrome. Hicks also warned that "[a]nything a man says to a woman he can end
up in court." Defendants admitted that as a result of plaintiff 's sexual harassment claim, they
transferred her to the day shift. Plaintiff testified that this transfer caused her hardship with
childcare and a pay reduction.
II. Nature of the Case
Our Supreme Court raised the constitutional issue on remand sua sponte and asked us to
address whether the statements in question constitute protected speech and whether the liability
imposed raises concerns of vagueness and overbreadth. The Court framed the issue as
whether the remarks that supported the "hostile environment" sexual harassment
claims cannot form the basis for liability because they are protected speech under
US Const, Am I, and Const 1963, art 1, § 5, and because basing a finding of
liability on such remarks would raise vagueness and overbreadth concerns under
the same constitutional provisions.[5]
III. Legal Discussion
A. Forfeiture of the Issue
We decline to reverse our decision in favor of plaintiff for two reasons. First, no
defendant should get the benefit of this review because no defendant raised the issue of a
possible constitutional violation below.6 As noted in Booth Newspapers, Inc v Univ of Michigan
5
We note that Justices Weaver, Cavanagh, and Kelly dissented from this order of remand, noting
that verbal conduct constituting sexual discrimination is specifically actionable under Michigan
law.
6
It is not surprising that this issue was not raised below or on appeal, given the lack of case law
supporting the existence of a free speech violation in circumstances analogous to those present
(continued…)
-3-
Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993), "Issues raised for the first time on
appeal are not ordinarily subject to review." The Booth Court further stated:
This Court has repeatedly declined to consider arguments not presented at
a lower level, including those relating to constitutional claims. In re Forfeiture of
Certain Personal Property, 441 Mich 77, 84; 490 NW2d 322 (1992); Butcher v
Treasury Dep't, 425 Mich 262, 276; 389 NW2d 412 (1986); Dagenhardt v Special
Machine & Engineering, Inc, 418 Mich 520; 345 NW2d 164 (1984); Ohio Dep't
of Taxation v Kleitch Bros, Inc, 357 Mich 504, 516; 98 NW2d 636 (1959). We
have only deviated from that rule in the face of exceptional circumstances. Perin
v Peuler, 373 Mich 531, 534; 130 NW2d 4 (1964)[, overruled on other grounds in
McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999)] (issue resolution was
necessary to quell confusion generated by the Court's earlier opinions); People v
Snow, 386 Mich 586, 591; 194 NW2d 314 (1972) (addressed the issue to prevent
a miscarriage of justice). There exist no exigent circumstances in this case that
require our review of the board's constitutional argument. [Booth, supra at 234, n
23.]
See also People v Viano, 467 Mich 856 (2002). Moreover, the Michigan Court of Appeals
"functions as a court of review that is principally charged with the duty of correcting errors" that
occurred below and thus should decline to address unpreserved issues. See Michigan Up & Out
of Poverty Now Coalition v Michigan, 210 Mich App 162, 167-168; 533 NW2d 339 (1995).
Because of the blatant and highly offensive harassment to which plaintiff was subjected,
and because Michigan's sexual harassment law is well defined and unambiguous, we see no
exigent circumstances, particularly in this case, that require our review of the constitutional issue
raised by the Supreme Court. Booth, supra at 234, n 23. In fact, this case presents a much
stronger case than Booth for declining to address the constitutional issue, because in Booth, a
party had at least raised the issue on appeal. Id. Here, no party raised the constitutional issue
either below or on appeal. Moreover, no errors with regard to the trial court's rulings or the
jury's findings concerning sexual harassment occurred below in this case, and therefore there is
nothing for us to correct. Up & Out of Poverty, supra at 167-168. While we respect our
Supreme Court's authority to raise the issue on remand sua sponte, we believe that invoking this
constitutional issue to benefit a party who failed to raise the issue would be entirely
inappropriate.
B. Constitutional Questions
Second, and more importantly, we find that the comments at issue here do not constitute
protected speech under the United States and Michigan Constitutions and that the imposition of
liability for the comments does not raise valid concerns of vagueness and overbreadth. We note
(…continued)
here. Indeed, one of defendants' attorneys conceded during oral arguments on remand that she
could not locate a single case in support of her position.
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that our review of constitutional questions such as these is de novo. See Armstrong v Ypsilanti
Charter Twp, 248 Mich App 573, 582; 640 NW2d 321 (2001).
i. Free Speech Analysis
Sexual harassment claims of the hostile work environment type are based on certain
provisions of the Civil Rights Act. Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155
(1993). Specifically, MCL 37.2202(1)(a) states that an employer shall not "[f]ail 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." MCL
37.2202(1)(c) states that an employer shall not "[s]egregate, classify, or otherwise discriminate
against a person on the basis of sex with respect to a term, condition, or privilege of employment,
including, but not limited to, a benefit plan or system." MCL 37.2102(1) states that "[t]he
opportunity to obtain employment . . . without discrimination because of . . . sex . . . as
prohibited by this act, is recognized and declared to be a civil right." Finally, MCL 37.2103(i)
states:
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. [Emphasis added.]
In Radtke, supra at 382-383, our Supreme Court relied on the provisions of the Civil
Rights Act to fashion five necessary elements for establishing a prima facie case of sexual
harassment based on a hostile work environment. These elements are:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis
of sex;
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(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. [Id.]
As noted in our prior opinion, plaintiff satisfied these elements. Because the prior opinion was
not published, we restate it here in relevant part:
Defendants' arguments are directed toward elements 2, 3, 4, and 5.
To establish elements 2 and 3, plaintiff had to show she was subject to
unwanted sexual communication because of her gender. Id. at 383. Defendants
contend that the comments allegedly directed toward plaintiff by defendants
Terr[e]nce Hill and Darryl Hopson had nothing to do with sex or with her gender
as a female but were simply the result of a disagreement among coworkers.
However, Hill and Hopson's comments, as testified to by plaintiff and her
coworker Elaine Davis, were of a sexual nature and did occur, at least in part, as a
result of plaintiff 's gender.[7] Particularly, Hill and Hopson referred to plaintiff as
a "b---h" and a "f-----g female" and indicated that plaintiff needed to "get her a-f----d by a man every night." They further indicated that plaintiff was abnormal
for being over thirty years old and without a man. Thereafter, at a meeting held to
discuss various issues about the workplace, one of the fingerprint technician
supervisors, defendant Dereck Hicks, indicated in plaintiff 's presence that women
will "cry sexual harassment" because of premenstrual syndrome. This evidence
showed that plaintiff was indeed subjected to abuse of a sexual nature because of
her gender as a female. While some witnesses denied that Hill, Hopson, and
Hicks made the comments at issue, the evidence was nearly balanced such that the
sexual harassment verdict was not against the great weight of the evidence.
7
Defendants argue that by making this statement in our prior opinion, we acknowledged that not
all the statements were based on plaintiff 's gender. Defendants contend that because some of the
statements were not based on gender, the entire liability finding must be vacated under NAACP v
Claiborne Hardware Co, 458 US 886; 102 S Ct 3409; 73 L Ed 2d 1215 (1982). Defendant's
contention is without merit. In NAACP, the Court vacated an award of damages because it could
not be determined which of the damages had wrongly been attributed to nonviolent,
constitutionally protected activity. Id. at 922-924. Here, the remarks viewed in their entirety
damaged plaintiff and the remarks viewed in their entirety had a gender-based origin. Our
statement in our prior opinion that the comments occurred "at least in part[] as a result of
plaintiff's gender" indicated merely that the comments may have been based to a certain extent
on personal animosity towards plaintiff as well as on plaintiff 's gender.
-6-
The evidence also supported the jury's finding with regard to element 4.
As stated in Radtke, supra at 394-395, even a single incident of sexual
harassment, if extreme, will support a hostile work environment sexual
harassment claim. Here, there was more than a single incident. In addition to the
initial harassing conduct that occurred on November 14th and 15th, 1994, plaintiff
testified that she had received numerous, irritating, romantic notes from Hopson
over the years and that Hill sometimes blew in her ear and asked why she covered
her body. Keeping in mind that plaintiff worked within a small group of
individuals and could not avoid seeing either Hill or Hopson if she continued
working on the midnight shift, we conclude that a reasonable person, in the
totality of the circumstances, would have felt extremely disrupted by the
comments and actions directed at plaintiff. See Radtke, supra at 394 (indicating
that whether a hostile work environment existed is determined by the "reasonable
person" standard). The jury's finding regarding element 4 was not against the
great weight of the evidence.
Nor was the jury's finding regarding element 5 against the great weight of
the evidence. As stated in Radtke, supra at 396, to establish respondeat superior a
plaintiff must show that her employer, after receiving notice of alleged sexual
harassment, failed to adequately investigate the claim and take prompt and
appropriate remedial action. Here, plaintiff and others testified that plaintiff told
one of her supervisors, Nola Hitchens, that she had been sexually harassed and
that in response, the city (1) counseled Hill for using vulgar language, (2) entered
a demerit on Hill and Hopson's annual evaluations for an "altercation with a
coworker;" (3) reissued a sexual harassment policy; and (4) held a meeting at
which claims of sexual harassment were belittled. The jury, based on this
evidence, could reasonably have concluded that the city's efforts failed to
adequately address plaintiff 's claim. Indeed, there was no evidence that anyone
spoke to Hill or Hopson about their use of sexually abusive language, they
received no suspension for it, the meeting purporting to address it only furthered
the harassment, and plaintiff, instead of Hill and Hopson, was subsequently
removed from the midnight shift. The jury's verdict with respect to plaintiff 's
sexual harassment claim was not against the great weight of the evidence. [Burns
v Detroit, unpublished opinion per curiam of the Court of Appeals, issued October
31, 2000 (Docket No. 213029) (emphasis in original).]
Despite plaintiff 's clear establishment of a sexual harassment case under applicable
Michigan law, the Supreme Court asks us to determine whether the comments at issue cannot
support a finding of liability because they constitute protected speech under Const 1963, art 1, §
5, and US Const, Am I.
The Michigan Constitution states that "[e]very person may freely speak, write, express
and publish his views on all subjects, being responsible for the abuse of such right; and no law
shall be enacted to restrain or abridge the liberty of speech or of the press." Const 1963, art 1, §
5. The First Amendment of the United States Constitution similarly states that "Congress shall
make no law . . . abridging the freedom of speech . . . ." US Const, Am I. The rights to free
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speech under the Michigan and federal constitutions are coterminous. Up & Out of Poverty,
supra at 168. Thus, federal authority construing the First Amendment may be used in construing
the Michigan Constitution's free speech guarantee. See id. at 168-169.
In Chaplinsky v New Hampshire, 315 US 568, 571; 62 S Ct 766; 86 L Ed 1031 (1942),
the United States Supreme Court noted that "the right of free speech is not absolute at all times
and under all circumstances." The Court stated:
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or "fighting" words—those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.[8] It has
been well observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality. "Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument."
Cantwell v Connecticut, 310 US 296, 309-310; 60 S Ct 900, 906; 84 L Ed 1213
[(1940)]. [Chaplinsky, supra at 571-572.]
Clearly, the comments at issue here were "no essential part of any exposition of ideas . . .
." Id. at 572. Indeed, the comments were more akin to "fighting" words and essentially
constituted a vulgar, vituperative, ad hominem attack against an individual. Hill and Hopson
continually referred to plaintiff as a "bitch," called her a "fucking female," ridiculed her lack of a
man, and, importantly, threatened her with personal harm. These "epithets" and this "personal
abuse," directed toward a particular individual, were not "in any proper sense communication of
information or opinion safeguarded by the Constitution." Id.; Cantwell, supra at 310.
Accordingly, the language at issue simply does not reach the level of constitutionally protected
speech under the doctrine from Chaplinsky, and the sexual harassment judgment did not violate
Const 1963, art 1, § 5, or US Const, Am I. While defendants are free to express their views in
the workplace, the constitution does not shield them from liability for verbally attacking a coworker by use of ad hominem, sexually explicit vulgarities.
Second, the United States Supreme Court has noted, albeit in dicta, that the proscription
of sexually harassing words by way of sexual discrimination laws is permissible, because the
laws are essentially directed against conduct. See RAV v St Paul, Minnesota, 505 US 377, 389;
112 S Ct 2538; 120 L Ed 2d 305 (1992). Writing for the Court, Justice Scalia stated:
8
We note that this definition of "fighting" words has been somewhat modified. See UWM Post,
Inc v Univ of Wisconsin System Bd of Regents, 774 F Supp 1163, 1170 (ED Wis, 1991). It now
includes only the second half of the definition—words that tend to incite an immediate breach of
the peace—and it is now restricted to words "directed at the person of the hearer" and words that
"naturally tend to provoke violent resentment." Id.
-8-
Another valid basis for according differential treatment to even a contentdefined subclass of proscribable speech is that the subclass happens to be
associated with particular "secondary effects" of the speech, so that the regulation
is "'justified without reference to the content of the . . . speech,'" Renton v
Playtime Theatres, Inc, 475 US 41, 48; 106 S Ct 925; 89 L Ed 2d 29 (1986),
(quoting, with emphasis, Virginia State Bd of Pharmacy [v Virginia Citizens
Consumer Council, Inc, 425 US 748, 771; 96 S Ct 1817; 48 L Ed 2d 346 (1976)]).
. . . A State could, for example, permit all obscene live performances except those
involving minors. Moreover, since words can in some circumstances violate laws
directed not against speech but against conduct (a law against treason, for
example, is violated by telling the enemy the Nation's defense secrets), a
particular content-based subcategory of a proscribable class of speech can be
swept up incidentally within the reach of a statute directed at conduct rather than
speech. . . . Thus, for example, sexually derogatory "fighting words," among
other words, may produce a violation of Title VII's general prohibition against
sexual discrimination in employment practices. . . . Where the government does
not target conduct on the basis of its expressive content, acts are not shielded from
regulation merely because they express a discriminatory idea or philosophy.
[RAV, supra at 389-390 (emphasis added).]
The Michigan Civil Rights Act, like Title VII, prohibits sexual discrimination in employment
practices. It targets, among other things, the creation of an "intimidating, hostile, or offensive
employment . . . environment." See MCL 37.2103(i)(iii). The act is essentially directed toward
discriminatory conduct, and oral remarks such as those at issue here are "swept up incidentally
within the reach of a statute directed at conduct rather than speech." RAV, supra at 389.
Accordingly, the remarks are proscribable under the rationale of RAV.
For these reasons, we hold that no violation of Const 1963, art 1, § 5, or US Const, Am I,
occurred in this case.9
9
Although not strictly necessary to our decision, we note that the words at issue could
potentially be considered as directed toward a captive audience. As noted in Hill v Colorado,
530 US 703, 716; 120 S Ct 2480; 147 L Ed 2d 597 (2000): "The right to free speech . . . may not
be curtailed simply because the speaker's message may be offensive to his audience. But the
protection afforded to offensive messages does not always embrace offensive speech that is so
intrusive that the unwilling audience cannot avoid it" (Emphasis added.). In Bonnell v Lorenzo,
241 F3d 800, 820-821 (CA 6, 2001), the court further explained this concept:
Plaintiff may have a constitutional right to use words such as "pussy,"
"cunt," and "fuck," but he does not have a constitutional right to use them in a
classroom setting where they are not germane to the subject matter, in
contravention of the College's sexual harassment policy. . . . This is particularly
so when one considers the unique context in which the speech is conveyed—a
classroom where a college professor is speaking to a captive audience of students
(continued…)
-9-
ii. Vagueness and Overbreadth
The Supreme Court's remand order also directed us to consider whether "basing a finding
of liability on such remarks would raise vagueness and overbreadth concerns under [Const 1963,
art 1, § 5, and US Const, Am I]." As noted in People v Howell, 396 Mich 16, 20; 238 NW2d 148
(1976):
A statute may be challenged for vagueness on three grounds:
1. It does not provide fair notice of the conduct proscribed.
2. It confers on the trier of fact unstructured and unlimited discretion to
determine whether an offense has been committed.
3. Its coverage is overbroad and impinges on First Amendment freedoms.
See also Woll v Attorney Gen, 409 Mich 500, 533; 297 NW2d 578 (1980), clarified 409 Mich
551; 300 NW2d 171 (1980).
(…continued)
. . . who cannot "effectively avoid further bombardment of their sensibilities
simply by averting their [ears]." Hill [, supra at 716].
Here, plaintiff was at her place of employment, attempting to do her job, when Hill and Hopson
used the term "bitch" and made derisive comments about her gender and her sex life. She could
no more avoid the disturbing comments than could the students in Bonnell, and the comments
most certainly were not germane to the subject matter of the workplace, i.e., fingerprinting. See
Bonnell, supra at 820-821.
Moreover, as noted in McLeod v Providence Christian Sch, 160 Mich App 333, 345; 408
NW2d 146 (1987), "elimination of discrimination on the basis of sex is a compelling state
interest." See also Radtke, supra at 387 ("the purpose of the [civil rights] act is to combat serious
demeaning and degrading conduct based on sex in the workplace, and to allow women the
opportunity to fairly compete in the marketplace"). Accordingly, there must be a balance
between eliminating workplace discrimination and safeguarding free speech protections. In
Roberts v United States Jaycees, 468 US 609, 615; 104 S Ct 3244; 82 L Ed 2d 462 (1984), the
Court considered whether a prohibition on male-only Jaycees clubs violated "the male members'
constitutional rights of free speech and association." The Court held that the compelling state
interest in eliminating discrimination against females justified the minimal impact on the male
Jaycees' free association rights. Id. at 628-629. It could potentially be argued that the
prohibition against the vulgar and harassing language used in the workplace in the instant case
serves to further the "compelling state interest" in eliminating workplace discrimination, see
McLeod, supra at 345, while minimally affecting the free speech rights of the speakers. They are
free to express their views; they are simply not free in the workplace to verbally attack a coworker by use of ad hominem, sexually explicit vulgarities.
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Moreover, "[v]agueness challenges that do not implicate First Amendment freedoms are
examined in light of the facts of each particular case." People v Lino, 447 Mich 567, 575; 527
NW2d 434 (1994); Howell, supra at 21; see also People v Rogers, 249 Mich App 77, 95; 641
NW2d 595 (2001), and People v Cavaiani, 172 Mich App 706, 714; 432 NW2d 409 (1988) ("A
defendant has standing to raise a vagueness challenge to a statute only if the statute is vague as
applied to his conduct."). In light of our conclusion above that the specific facts of the instant
case clearly and unequivocally supported a finding of sexual harassment, the relevant provisions
of the Civil Rights Act were not vague, in terms of the first two Howell grounds, as applied to
defendants' conduct.10 See, generally, Howell, supra at 21, and Cavaiani, supra at 714.
With regard to the third ground—overbreadth—the Court in Woll, supra at 534, stated:
A successful overbreadth challenge thus permits a person charged with
speech or conduct violative of a statute to escape punishment based on the First
Amendment rights of others impinged upon by the statute although under a
narrower, properly drawn statute, his speech or conduct could be punished
because it is not so protected.
In other words, "[l]itigants . . . are permitted to challenged a statute not because their own rights
of free expression are violated, but because of a judicial prediction or assumption that the
statute's very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." Broadrick v Oklahoma, 413 US 601, 612; 93 S Ct 2908; 37 L
Ed 2d 830 (1973), superceded on other grounds by statute as stated in Bauers v Cornett, 865 F2d
1517 (CA 8, 1989).
In Plymouth Charter Twp v Hancock, 236 Mich App 197, 202; 600 NW2d 380 (1999),
this Court stated that "[w]hen considering whether an ordinance is overbroad, a court should
consider the realistic potential of the ordinance to chill constitutionally protected speech." For a
proper finding of unconstitutionality, "the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, supra
at 615. We conclude that the hostile-work-environment sexual harassment provisions of the
Civil Rights Act do not unconstitutionally chill a person's rights to free speech. Indeed, the
statute, as construed by the Michigan Supreme Court, prohibits unwelcome sexual conduct or
communication that "was intended to or in fact did substantially interfere with the employee's
employment or created an intimidating, hostile, or offensive work environment." Radtke, supra
at 382 (emphasis added). Moreover, "whether a hostile work environment existed shall be
determined by whether a reasonable person, in the totality of circumstances, would have
perceived the conduct at issue as substantially interfering with the plaintiff 's employment or
having the purpose or effect of creating an intimidating, hostile, or offensive employment
environment." Id. at 394 (emphasis added).
10
Moreover, we note that unlike the statute involved in People v Boomer, 250 Mich App 534,
539-540; ___ NW2d ___ (2002), the statute at issue here gives fair notice of the prohibited
conduct, and the "reasonable person" standard, discussed infra, serves to prevent the abuse of
enforcement discretion.
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As noted in Plymouth Twp, supra at 203, the use of a "reasonable person" standard limits
the scope of a law and helps to avoid the danger of substantial overbreadth. We conclude that "a
reasonable person would understand" that the Civil Rights Act does not prohibit constitutionally
protected speech, such as the expression in general of unpopular ideas, but instead prohibits
communication of a sexual nature, like that at issue here, that substantially interferes with a
person's work or creates an intimidating, hostile, or offensive work environment. See, generally,
id. In our opinion, the difference between these two types of speech is readily ascertainable.
Furthermore, we note that statutes are presumed to be constitutional. Caterpillar, Inc v
Dep't of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992). Courts must construe a statute as
constitutional unless its unconstitutionality is clearly apparent. Id. "The party challenging the
constitutionality of a statute bears the burden of proving its invalidity." People v Boomer, 250
Mich App 534, 538; ___ NW2d ___ (2002). The language of the Civil Rights Act and the way
the act has been construed by the Michigan Supreme Court as applied to hostile work
environment sexual harassment cases compels the conclusion that the act does not have the
"realistic potential" to chill constitutionally protected speech. See Plymouth Twp, supra at 202.
Unconstitutionality is not clearly apparent to us.11 Caterpillar, supra at 413.
We once again affirm the jury's verdict with regard to the sexual harassment claim.
/s/ Patrick M. Meter
/s/ Richard Allen Griffin
/s/ Henry William Saad
11
Like our anti-stalking law, MCL 750.411h and 750.411i, the prohibitions against sexual
harassment contained in our civil rights statute do not unconstitutionally infringe on free speech
rights. See Staley v Jones, 239 F3d 769, 784-788 (CA 6, 2001) (discussing anti-stalking law).
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