____________________________________________________________________________________________

____________________________________________________________________________________________________________________________ Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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 c ase to consider whether gender-based harassment that is not at all sexual in nature is sufficient to establish a claim of sexual harassmentunder the Civil Rig hts Act (C RA), 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 Cou rt o f Appeals reversed, concluding that gender-based harassment is sufficient to establish a claim of

sexu al 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 ver bal 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. F ACTS AND P ROCEDURAL H ISTORY Two capitol security officers with the Michigan State Police, Virginia Richand 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1 Unpublished opinion per curiam, issued September 28, 2001 (Docket No. 221535).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 sexua l i n nature, is a sexdiscrimination claim, not a sexual-harassment claim. 2personal representative of the estate of dec edent Rich, brought suit under the CRA against the state of Michigan, the MichiganDepartment of State Police, and two stat e police supervisors. Plaintiff claimed that Findsen had s exually harassed Rich by making hostile and offensive comments about her gender, thus creating a hostile work envi ronm ent that caused Rich to complain to her supervisors, who failed to take remedial action. 3 Defendants filed a motion for summary disposition under MCR2.116(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 o ffensi ve 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 th ree of the five necessary elements to establisha prima facie case of hostile work environment based

onsexual harassment. 4 Specifi ca lly, it concluded that

3 Although the harassment of Rich allegedly cam e 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.

4The cir cuit court also dismissed plaintiff’s claims (continued...) 3plaintiff had fa iled t o plead that Rich was subjected to unwelcome sexual conduct or communication; that the unwelcome sexual conduct or communicationwas 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 additi on, plaintiff voluntarily accepted the dismissal of a weight-discrimination claim.

5 As d iscu ssed below, the five necessary elements to establisha 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 communicationwa s i ntended 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 Mic h 29 7, 311; 614 NW2d 910 (2000).] The circuit court concluded that plaintiff had failed to plead the last three elements. 4on Koester v Novi , 458 Mich 1; 580 NW2d 835 (1998), which held that allegations of gender-based harassment can establish a claim of sex ual harassment under the CRA. Defendants, the state of Michiganand the MichiganDepartment of State Police, applied for leave to appeal to this Court, whichwe granted. 6 II. S TANDARD OF R EVIEW “The decision to grant or deny summary disposition is a questionof law that is reviewed de novo.” Veenstra v Was hte naw 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 establisha claim of sexual harassment under the CRA. Id . III. A NALYSIS 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. Ac cordingly, it is unlawful for employers to discrimi nat e against an individual with respect to a condition of

6 466 Mich 889 (2002). 5employment 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 anindividual’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 subsectioni ii by creating a hostile work environment. To establisha 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 communic ati onwas 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 emplo yee s
are inherently members of a protected class in hostil e work environment cases because all persons may be discriminated against onthe 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, i n orde r 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 anemployer from discriminating against an employee “because of” sex. Obviously, an employer cannot be said to have d iscrim inated against an employee “because of” sex unless, but for the fact of the employee’s sex, the employer

7would not have discriminated against the employee. In t his case, plaintiff alleges that Findsen sexually harassed Rich by makin g host ile 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 haras sm ent, 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 communicationof a sexual nature . . . .” In this case, p lainti ff 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 genderbased 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 pr egnancy is sexual harassment.” Again, the CRA, MC L

837.2202(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, discriminationbecause 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 tha t “[d]iscriminationbecause of sex includes sexual harassment.” Accordingly, sexual harassment is another type of discrimination because of sex. Although Koester , supra at 11, correctly recognized that “discriminationon the basis of a woman’s pregnancy and sexual harassment are ‘two subsets of sex discr iminat ion,’” it inc orrectly concluded, in our judgment, that “harassment o n the basis of a woman’s pregnancy is sexual harassment.” Id. at 10. Even assuming that harassment based on pregnancy may constitute discriminationbased on pregnancy, and thus sex discrimination , harassment based on pregnancy that is not at all sexual in nature simply is not sexual hara ssme nt. 8 That

8 When we refer to harassment b ased o n pregnancy and pregnancy discriminationin 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 foreclos e th e possibility that (continued...) 9is, 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 sexdiscrimination, but it is not sexual harassment. In order to prove pregnanc y 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, re quest s for sexual f avor s, [or] other verbal or physical conduct or communicationof a sexual natu re . . . .” 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 ). I n the present case, we do not address whether harassment based on pregnancy may constitute sex discriminationbecause, evenassuming 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 inthe present case only asserts a claim of sexual harassment , we do not ad dress 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...) 10Accordingly, pregnancy discrimination and sexual harassment consist of substantially different elements, and thus a person asserting a claim of sexual harass ment must prove something considerably different from a person assertin g 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 definitionof “sexual harassment” found inarticle 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 definitionof sex as contained inthe act.” Koester, 458 Mich 10-11. However, the definitionof “sex” found in article two, which includes pregnancy, is preceded by th e language, “As used in this

ar ticle . . . .” MCL 37.2201 (emphasis added). Theref ore , this definition of “sex” is only applicable to a rticle 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 v erbal or physical conduct or communication of a sexual nature.” Thus, while sexual harassment is always a form o f s ex discrimination, all cases of sex discrimination do not necessarily amount to sexual harassment. [458 Mich 22-23.]

11of article one, the article at issue here. Accordingly, the Koester Court erred in applying article two ’s d efinition of “sex” t o th e definition of “sexual harassment” found in article one. To recapitulate, the CRA, MCL 37.2202(1)(a), prohibits employment discrimination becau se o f sex. The CRA, MCL 37.2201(d), defines “sex” to include pregnancy. Therefore, by concluding that harassment based on pregnancy i s sexu al 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 sexu al n ature

. . . .” 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 innature, cannot constitute sexual harassment. 11 Accordingly,

11 The dissent misconstrues our opinionas 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 t hat “conduct or communication that is gender-based, but is not sexual innature , does not constitute sexual harassment as (continued...) 12we overrule Koest er to the extent that it concludes that harassment based on gender that is not at all sexual innature constitutes sexual harassment under the CRA. 12 The CRA, MCL 37.2103(i), clearly defines a hostile-workenvironment 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 n o “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 Su preme Court in Koester erred in relying on a United States Supreme Court case that concluded that under title VI I (no w 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.’” Koes ter, supra at 15, quoting Oncale v Sundowner Offshore Services, Inc , 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 2 01 (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 communicationof a sexual nature. The Legislature’s choice of language forecloses our reliance on title VII precedents to interpret sex ual harassment under the CRA. [213 Mich App 668-669.] 13of a sexual nature . . . .” 13 Accordingly, plaintiff clearly has not establ ish ed a claim of sexual harassment under the CRA. IV. S TARE D ECISIS 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 r eliance interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp , 465 Mich732, 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 actionis “allegedly non sexual,” id. at 6, and that “[p]laintiff’s counsel di d 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. Furt her, 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 motionfor 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 r econ sideration 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 defendant s o n 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 motionfor 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). 14641 NW2d 567 (2002). Withregard 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 ad vanc es, 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. Withregard to the second inquiry, we mu st e xamine “whether the previous decision has become so embe dded , 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 d efendants could conceivably have relied on our decisio n i n

15Koester to their de triment. In no respect did any of them alter conduct in an attempt to conform such conduct to our decisionin 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, constitu ted se xual harassment under the CRA. Nor could the plaintiff’s decedent here have altered her conduct in any way indetrimental 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 det riment al reliance on

whendealing with an area of the law that is Koester . Further, as this Court stated in Robinson, supra at 467: [I]t is well to recall in discussing reliance, statutory . . . , that it is to the words of the statute itself that a citiz en fir st looks for guida nce 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 dec edent], and any plaintiff with a pending hostileenvironment claim that is not specifically sexual in nature.” Pos t at 17. Rather, we have specifically considered an d 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 a re 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. 16expect . . . 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 nat ure does not constitute sexual harassment under the plain language of the C RA, will not create any “practical real-world dislocations .” 16

15 The dissent criticiz es us for “ignor[ing] the instability that results from this Court’s weak adherence to the pri nciple 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 d etermination to give meaning to the clear words of the law. A prin cipal rationale for doing this, of course, is t o li mit the extent to which this Court in the future must contribute to either of these potential sources of legal instability. To conclude, as the d iss ent does, that sexual harassment includes conduct or communica ti on 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 judgmen t, 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 Y OUNG : Do you an ticipate 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...) 17For 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. R ESPONSE TO THE D ISSENT Firs t 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-work16 (...continued) they’re doing now? Mr. Boog : No because I think most employers want t heir employees to be free of any type of harassment. Justice Y OUNG : I’m asking do you anticipate, givenyour experience, that they’ll change their policies. Mr. B oog : I would tell them to keep the same policies for the sake of employee morality [sic]. Furthe r, employers will still have to consider the possibility of liability under the different language of title VII of the federal civil rights act.

18environment actions are limited to claims of a sexual nature. At no point in this opinion do we draw such a con clusion. Rather, the only conclusionthat we reachis 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-workenvironment case based on sexual harassment, a plaintiff must show that the conduct complained of was sexual in nature. Tha t 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 again st 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 p lain tiff’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, a n d (continued...) 19Therefore, the only issue before us is whether plaintiff has established a prima facie case of sexual hara ssme nt. Accordingly, there is no need for us to reach out and address whether the CRA recognizes a c laim 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 agen ts, 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 ove rheate d assertions, our opiniondoes not “oversimplif[y] the Civil Rights Act’s hostile-work-environment proscription,” “n ecessarily 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 fo r h ostile work environments based onreligion, 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 doe s 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 actionbased on a nything other than sexual harassment. Contrary to th e dissent’s assert ion, we are not concluding that “victims of discrimination[may no longer] assert hostile-work-environment claims u nless the activity at issue is ‘sexual’ in nature,” post at 16; instead, what we are concluding here today is that a pla intiff may not assert a hostile-work-environment claim based on sexual harassment without showing that the complained (continued...) 20See n 9. Further, we disagree with the diss ent’s assertion that this Court is somehow bound to interpret Mich igan ’s Civil Rights Act in ac cordance with the federal courts’ interpretationof the federal civil rights act. See n 11. Evenif, as the dissent states, the Michigan Legislature relied heavily on the federal civil rights act in dr aft ing Michigan’s Civil Rights Act, the Michigan Leg islat ure 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-workenvironment action must prove that she suffered a tangible employme nt action or an economic loss. Instead, we simply co nclu de 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 def ines sexual harassment as “conduct or communication of a sexual nature . . . .” MCL 37.2103(i). 21MichiganLegislature is allowed to determine for i tsel f 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 disse nt fai ls to respect this difference and, instead, concludes that because these acts are

ne arlyi dentical 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 indoing so mak[ing] sweeping changes to our employment-discrimination jurisprudence.” Post at 6. To say the l east, 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 har as sment” pursuant to an altogether different law. This refu sal is not based on a preference for one definition over th e othe r, but on our recognitionof 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 communicationof 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...) 22Tit le VII of the federal civil rights act, like the MichiganCivil Rights Act, prohibits discrimination because of

sex. However, unlike our civil rights act, title VII does not specif i cally 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 discriminationbecause of sex and the federal cou rts 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) communicationof a nonsexual nature. If, as the dissent seems to believe, sexual harassment includes conduct or communicationof 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 t hat 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 Co urt of Appeals decision in Koester, 213 Mich App 668-669, and in the partial dissent to this Court’s decision in (continued...) 23VI. C ONCLUSION The CRA prohibits sexual harassment, which is defined in that act as “unwelcome sexual adva nces , 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 , bu t 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 innature, but contends that it was g ende r-based, plaintiff has not set fortha claim of sexual harassment under the CRA. For these reasons, we reverse the judgment of the Court of Appeals an d 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. 24S 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 d o not join in part V, “Response to the Dissent.” Elizabeth A. WeaverS 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]. ” An te at 2. By dismissing plaintiff’s claim, the majority severely constricts the scope of M ichi gan’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 harass ment 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 thantwenty-five years as a capital security officer withthe MichiganState Police, suffered weight- and gender-based harassment, as well as harassment of a “sexual” nature. 1 The trial court summarily disposed of plaintiff’s sexualharassment claim on defendant’s motion, concluding tha t 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 affi davit 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 Recon side ration, filed May 5, 1998, in the Ingham Circuit (continued...) 2repeatedly and continually received sexually explicit cartoons and other material of a sexual nature inher mailbox, to which her supervisors failed to adequately respond. 3 Counsel also attached a grievance filed by decedent against a coworker, claiming the colle ague p ushed 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 a t de cedent. 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

anappeal 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. 3The Elliott-Larsen Civil Rights Act Whenthe Michigan Legislature draf ted our Civil Rights Act, MCL 37.2101 et seq ., it relied heavily on the original federal title VII statutes banning workplace discrimination. Reviewi ng 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 o f 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 fo r employment in any way whichwould de priv e 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 4national origin. [42 USC 2000e-2.] But for the additionof 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 t he ne cessary elements of statutory claims. Because Michigan’s employmentdiscriminationstatute so closely mirrors fed eral law, we oftenrely 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, 4 27 Mich 50 5, 525; 398 NW2d 368 (1986) (“While this Court is not compelled to follow federal precedent or guidelines ininterpreting Michigan law, this Court may, ‘as we have done inthe 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 1 9; 579 NW2d 906 (1998), citing McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1 817; 36 L Ed 2d 668 (1973) (observing that Michigan adopted the four-part disparate­ (continued...) 5Regrettably, the majority now departs from this sound traditionand, in doing so, makes sweeping changes to our employment-discriminationjurisprudence. Hostile-workenvironment actions, available on the basis o f an y ground

ar tic ulated in the federal statute, will now be limited to claims of a sexual nature under our state Civil Rights Act. Bydismissing plaintiff’s allegedly nonsexual hostilework-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 wo uld not dismiss plaintiff’s sex-based claim if it recognized that hostilework-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 fr om the United States Supreme Court's McDonnell Douglas test to prove a pri ma fac ie 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 40 5, 4 25; 95 S Ct 2362; 45 L Ed 2d 280 (1975) (articulating disparate-impact action as prescribed by the Supreme Court). 6of discrimination, but experiences no tangible employment action. No longer will an employee subject to a sex-based (but not overtly sexual) hostile work envi ronment find redress, eventho ugh 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 recogn ize d that such claims may be asserted on the basis of any ground enumerated inMichigan’s Civil Rights Act in M CL 37.2202. Malan v Gen Dynamics Land Sys, Inc , 212 Mich Ap p 585, 587 ; 538 NW2d 76 (1995) (holding that a hostile-work-environment claim is actionable on the basis of a ny 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 supervisor s 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 Jacksonv Quanex Corp, 191 F3d 647 (CA 6, 1999) (recognizing race-based, hostileenvironment 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 disa bility-bas ed, hostile-work-environmen t 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 Mic hig an’s Civil Rights Act expressly prohibits acts that “discriminate against an individual with respect to employment, compen satio n, 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 a n e mployee of an oppo rtunity 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 th e gr ounds

8enumerated above. The United States Supreme C ou rt 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 onthe basis of any ground enumerated in 42 USC 2000e-2. According to that Co urt, 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 VI I] i s an expansive concept whichsweeps 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 stab ilit y of minority group workers . . . .

9[ Meritor, supra at 66, citing Rogers v E qual Employment Opportunity Comm, 454 F2d 234 , 23 8 (CA 5, 1971).] With this recognition, the Supreme Court clarified that the plai n t ext of the federal statute prohibits severe and pervasive employment discrimination—what we often refer to as
a hostile work environment —wi thout regard to whether a plai ntif f suffers a tangible employment action. Instead of acknowledging our identical legislative directive in § 2202, whichimposes no economic-loss requirement, the majority ignores its relevance and focuses exclu sive ly on subsection 2103(i), which simply clarifies that sex discrimination includes sexual harassment. While I agree that subsection 21 03( i) clarifies which forms of sexual harassment are prohibited, it does not narrow MCL 37.2202, whi ch o utlaws 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, hostilework-environment claims, while the federal statute contains no similar statutory counterpart. Apparently, th e maj ority

assumes the legislative directive with regard to sexua l 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 emplo yees on the basis of, inter alia, race, religion, or sex, it would have stated as much. Howev er, 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 indi cates, 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 violationof 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 fo r 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.

11Our 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 condu ct or communication has the purpose or effect of substantially interfering with anindividual'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 mer ely 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:

12The civil rights act’s coverage of sexual harassment should not be changed as proposed by the bill. Th e 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 provisionfelt that the amendment was “necessary to ‘motivate’ the [Michigan Department of Civil Rights] to t reat sexual harassment as a bona fide civil rights violation . . . .” Id . at 2. Before this enactment, the Department of Civil Rights often re fused 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 hostilework-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 i t gives limited meaning to 1980 PA 202. After all, if the Civil Rights Act already prohibited discriminatory and hostile work environments, 198 0 PA202 added little. Adding little, 13however, does not mean adding nothing. As noted in the House Bill Analysis, the enactment did clarify that sex ual 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 isol ated 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 lea ve 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 interpretationof subsections 2103(i)(i) and 2103(i)(ii) (oftenreferred 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

14education(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 ha d a lready 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 ea rli er 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 le gitimate 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 decisionis quite unfortunate. If plain tiff ’s gender-based hostile-work-environment claim must be dismissed because it is not of an overtly “sexual” nature, then work envi ronments inimical to a reasonable person on the basis of religion, race, color, national origin, age, sex (inasmuchas 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). 15status are no longer actionable. This interpretation cannot be rationally construed from the text of Mich igan ’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 natu re. However, as I indicated in the Koester major it y 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 10 94 (CA2, 1986) (allowing a claim for racial harassment). [ Koester , su pra at 11 n 3.] The majority purportedly justifies this shift by attempting to clearly mar k the boundaries of all things “sexual.” In narrowly defining subsection 2103(i), the Court attempts to foreclose actions previously recognized on the bas is of, inter alia, race, “gender,” national origin, or rel igion. 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 . Tho ugh the 16majority opinion belies the significance of this s hift, Justice Taylor clarified the stakes at oral argument: Justice TAYLOR : Wouldn't the distinction betwe en the se two causes of action be that in the case of discriminatio n th e employee has to endure certainkinds of unpleasant remarks until suchtime as there is anadverse job action of some kind. In the case of sexual harassment that isn't true. The p ers onwho is the victim of that only need prove that there has beena substantial interference with the employee's employment or that this is creating anintimidating, hostile or offensive work environment. [ Attorney for Plaintiff ]: I would agree with that. Justice TAYLO R : I sn't that the great sort of overarching sort of written in neon understanding of this. [ Attorney for Plaintiff ]: I would agree with that. Althougha majori ty n ow 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 contentionthat overruling Koesterwould produce no “realworld dislocations,” ante at 17 , igno res the effect on this part icu lar 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 employ er or employee conceivably could have altered their

17conduct inany way indetrimental reliance on Koester ” ignores the instability that results from this Court’s weak adherence to the principle of stare decisis. Ante a t 16 (emphasis in original). 8 To summarize, the majority overrules precedent and rejects plaintiff’s claim because our Legislature did not specificallyarticulate the parameters of hostile-workenvironment claims for conduct not overtly sexual in nature. Indo ing so, the Court relies on a rather weak canon of negative i mpli cation 9 and ignores the plain text of MCL 37.2202, which does not require an economic injury. The Court also dismisses our Legislature’s intentionto 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, simplybecause 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 p rovid e useful indicators of employers’ policies, few harassing work environments are officially condoned. More often, employers or their supervisors simply fa il t o 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 Pres s: 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.”). 18of 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. Inlight 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 can not agree that the majority’s interpretation furthers either our Legislature’s intent or the rule of law. Sexual Harassment Includes Gender-Based Discrimination Thoughunnecessary 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 subsection2103(i) alone permits gender-base d cl aims. 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 inhere ntlydiscriminatory when targeted at an individual on the basis of her sex, but because sexual conduct that exploits

our socially constructed concepts of gender perpetuates

19unlawful discrimination. Our courts have recognized that conduct of a “sexual” nature is no t p rohibited simply because it is “of or pertaining to sex or the attribute of being either male or female” or “existing or p redicated 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 oftencontingent on the harasser's economic control over the person being harassed. I t sh ould 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 beha vior. It is no accident that the English language u ses t he 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.] 20that harassing conduct need not be specifically motivated by sexual desire to support an inference of discrimination. It is suff icie nt that the conduct “is motivated by general hostility to the presence of women in the wo rkpl ace.” Koester, supra at 15, quoting Oncale, supra at 80. “‘To be sure, the phrase "sexual harassment" canbe a m isnomer. As several [federal] circuits have now recognized, the touchstone of an actionable . . . sexual harassmen t cl aim is not whether the offensive conduct includes "sexual advances or . . . other incidents with clearly sexual overtones." . . . The critical inq uiry "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to whichmembers of the other sex are not exposed." [ Koester, supra at 13 (citations omitted), quoting Mentchv 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 positionand 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 sexual21harassment 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 cl aime d the conduct of defendant’s employees, “in sexually harassing [d]ecedent Rich, constitutes sexual discriminationin violation of MCL 37.2101 . . . et seq .” (Emphasis added.) Plaintiff stated that the “ha rass ment included, but was not limited to, frequent comments regarding [d]ecedent Rich’s gender, weight and ability as a Cap itol Security Officer” and, “on many occasions, [Finds en] m ade hostile and offen sive comments to [d]ecedent Rich regarding her sex, w eight and ability as a Capitol Security Officer.” Tho ugh 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 hostilework-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 inher

22briefs 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 pr ecedent 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 coun sel could have pleaded or argued in t he written submissions to clarify plaintiff’s theory for the majority. Perhaps because the written submissions are adequate to establishplaintiff’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 bask et a nd that sexual

11 Plaintiff’s Brief in Opposition to Defendant ’s Thi rd Motion for Summary Disposition, filed June 17, 1998 i n t he InghamCircuit 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 App eal s, pp 10-12; Appellee ’s Brief on Appeal, filed December 4, 2002, in the Michigan Supreme Court, pp 6-10. 23discrimination other than sexual harassment hasn’t been pleaded here.” Plaintiff’s counsel, Mr. Boog, responded. Mr. Boog : We ha ven’t been given an opportunity to pl ea d 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 understand in g 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. Whenviewed in context, thi s exc hange clarifies that plaintiff alleged a gender- or sex-harassment claim based on MCL 37.2202(1) and M CL 3 7.2103(i). As noted above, plaintiff’s counsel consistently relied on Malan , which interpreted MCL 37.2202(1) in light of federal prece dent . 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 24the sexual-harassment claim, thereby precluding an amendment to the complaint that would have clarified the overtly sexual nature of some of the conduct. Inaddition, bef ore the Court of Appeals issued plaintiff’s judgmen t, t his 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) whenasked 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 co unse l 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 InghamCircuit 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 subje cted to unwelcome sexual conduct and communication. . . . Plaintiff also has attached several documents that show that [d]ecedent Rich had filed a complaint (continued...) 25reference to MCL 3 7.2 103(i)(iii) was not made simply as an attempt to equate gender-based conduct with conduct of a sexual natu re—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 whichplaintiff was subjected, while also drawing upon the pro tect ions afforded by MCL 37.2202(1) and Malan, supra , in support of a hostile-environment claim not purely sexua l i n nature. Inresponse, the majority might claim a narrow reading of pl ai ntiff’s briefs is required because plaintiff did not specifically establish that “severe and pervasive harassment” could constitute “discrimination .” As suming this is an accurate reflection of the majority’s position, the Court apparently does not find i t s elf-evident that repeated exposure to derisive insults could constitute discrimination

—evenif unaccompanied by a “tangible employmen t act ion.” Hence, with the issuance of this opinion, no longer will a victim of repeated racist, sexist, or otherwise offe nsive 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.”). 26tangible employment action or behavior of a sexual nature. Insum, the majority unfairly neglects plaintiff’s arguments and attempts to ignore the difficult and inescapable issue presented by this case, i.e., whether h ostil e-workenvironment actions may be alleged on the basis of nonsexual conduct. One wonders what the majority gains by a dhering to an artificially constrained reading of plaintiff’s theory of the

case. If done in an attempt to respect its rol e 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 inte nded to provide—at a minimum—those protections afforded by fede ral 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 env ironment 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. T hes e allegations of harassment, motivated by sex-based animus, are sufficient to withstand a motion for summary disposition. Conclusion

27Because the text of MCL 37.2202(1) indicates our Legislature’s intent to track the scope of protections provided by federal law, and becau se f ederal law recognizes hostile-work-environment claims on any ground articulated in 42 USC 2000e-2, Meritor, supra, it is proper to conclude that M ichiganemployees share the right to assert hostile-workenvironment 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

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