ON REMAND
Before: Meter, RJ., 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.
1. facts and procedural history
Plaintiff, who was a fingerprint technician for the Detroit Police Department, claimed that two male coworkers on the midnight shift, defendants Terrence Hill and Darryl Hopson,
sexually harassed her and that her supervisors did not take appropriate remedial actions after she 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. We
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 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 over-breadth. 465 Mich 946 (2002).
Hill and Hopson made the following comments, among others, while plaintiff performed her job:
“[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[
] 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.”
“[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.”
HiU 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 plaintiffs sexual harassment claim, they transferred her to the day shift. Plaintiff testified that this transfer caused her hardship with child care and a pay reduction.
H. 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.[
]
m. 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.
As noted in
Booth Newspapers, Inc v Univ of Michigan 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 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 “[segregate, 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.
(ivi)
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;
(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.[
] 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.
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
seocually
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 speech under the Michigan and federal constitutions
axe 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.[
] 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 co-worker 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:
Another valid basis for according differential treatment to even a content-defined subclass of prescribable 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 Con
sumer 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 VITs 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 Bights 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)(m). 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.
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).
Moreover, “[vjagueness 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.
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 plaintiffs employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.”
Id.
at 394 (emphasis added).
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 over-breadth. 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 impopular 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 Trea
sury,
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; 655 NW2d 255 (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.
Caterpillar, supra
at 413.
We once again affirm the jury’s verdict with regard to the sexual harassment claim.