____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

 

Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr.

Stephen J. Markman 

FILED JUNE 11, 2003
 

CAROL HAYNIE, Personal


Representative for the ESTATE OF


VIRGINIA RICH, Deceased,
 

Plaintiff-Appellee,
 

v No. 120426
 

THE STATE OF MICHIGAN and THE 


MICHIGAN DEPARTMENT OF STATE
 

POLICE,
 

Defendants-Appellants,
 

and
 

DANIEL KECHAK and DANIEL PAYNE,
 

Defendants.
 

BEFORE THE ENTIRE BENCH
 

MARKMAN, J.
 

We granted leave to appeal in this case to consider
 

whether gender-based harassment that is not at all sexual in
 

nature is sufficient to establish a claim of sexual harassment
 
under the Civil Rights Act (CRA), MCL 37.2101 et seq. The
 

circuit court granted summary disposition in favor of
 

defendants, concluding that plaintiff had failed to establish
 

a prima facie case of hostile work environment based on sexual
 

harassment. The Court of Appeals reversed, concluding that
 

gender-based harassment is sufficient to establish a claim of
 

sexual harassment.1 We disagree. The CRA prohibits sexual
 

harassment, which is defined in that act as “unwelcome sexual
 

advances, requests for sexual favors, and other verbal or
 

physical conduct or communication of a sexual nature . . . .”
 

MCL 37.2103(i). Accordingly, conduct or communication that is
 

gender-based, but is not sexual in nature, does not constitute
 

sexual harassment as that term is clearly defined in the CRA.2
 

Therefore, we reverse the judgment of the Court of Appeals and
 

reinstate the circuit court’s order granting summary
 

disposition in favor of defendants.
 

I. FACTS AND PROCEDURAL HISTORY
 

Two capitol security officers with the Michigan State
 

Police, Virginia Rich and Canute Findsen, shot and killed each
 

other, while on duty. After the incident, plaintiff, the
 

1 Unpublished opinion per curiam, issued September 28,


2001 (Docket No. 221535).
 

2 The proper recourse for conduct or communication that
 

is gender-based, but not sexual in nature, is a sexdiscrimination claim, not a sexual-harassment claim. 


2
 
 

personal representative of the estate of decedent Rich,
 

brought suit under the CRA against the state of Michigan, the
 

Michigan Department of State Police, and two state police
 

supervisors. Plaintiff claimed that Findsen had sexually
 

harassed Rich by making hostile and offensive comments about
 

her gender, thus creating a hostile work environment that
 

caused Rich to complain to her supervisors, who failed to take
 

remedial action.3
 

Defendants filed a motion for summary disposition under
 

MCR 2.116(C)(7) and (8), arguing that the alleged conduct was
 

not sexual in nature and, thus, not sufficient to establish a
 

claim of sexual harassment. Although plaintiff conceded that
 

the alleged offensive conduct was not sexual in nature, she
 

argued that the conduct was gender-based and that allegations
 

of gender-based harassment are also sufficient to establish a
 

claim of sexual harassment. The circuit court granted
 

defendants summary disposition, concluding that plaintiff had
 

failed to plead three of the five necessary elements to
 

establish a prima facie case of hostile work environment based
 

on sexual harassment.4 Specifically, it concluded that
 

3 Although the harassment of Rich allegedly came
 

primarily from Findsen, who may have held the belief that


females did not belong in law enforcement, he was not the only


officer who allegedly harassed Rich.
 

4
 The circuit court also dismissed plaintiff’s claims


(continued...)
 

3
 
 

plaintiff had failed to plead that Rich was subjected to
 

unwelcome sexual conduct or communication; that the unwelcome
 

sexual conduct or communication was intended to, or, in fact,
 

did, substantially interfere with Rich’s employment or create
 

an intimidating, hostile, or offensive work environment; and
 

respondeat superior.5
 

The Court of Appeals reversed the circuit court’s order
 

granting summary disposition for defendants. The Court relied
 

4(...continued)


against the two state police supervisors, and the Court of


Appeals affirmed that decision. In addition, plaintiff


voluntarily accepted the dismissal of a weight-discrimination


claim.
 

5 As discussed below, the five necessary elements to


establish a prima facie case of hostile work environment based


on sexual harassment are:
 

(1) the employee belonged to a protected group;
 

(2) the employee was subjected to
 

communication or conduct on the basis of sex;
 

(3) the employee was subjected to unwelcome


sexual conduct or communication;
 

(4) the unwelcome sexual conduct or
 

communication was intended to or in fact did
 

substantially interfere with the employee’s


employment or created an intimidating, hostile, or


offensive work environment; and
 

(5) respondeat superior. [Radtke v Everett,


442 Mich 368, 382-83; 501 NW2d 155 (1993); see also


Chambers v Trettco, Inc, 463 Mich 297, 311; 614
 

NW2d 910 (2000).]
 

The circuit court concluded that plaintiff had failed to plead


the last three elements.
 

4
 
on Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998), which held
 

that allegations of gender-based harassment can establish a
 

claim of sexual harassment under the CRA. Defendants, the
 

state of Michigan and the Michigan Department of State Police,
 

applied for leave to appeal to this Court, which we granted.6
 

II. STANDARD OF REVIEW
 

“The decision to grant or deny summary disposition is a
 

question of law that is reviewed de novo.” Veenstra v
 

Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643
 

(2002). Also reviewed de novo are questions of statutory
 

interpretation, such as the question at issue here—whether
 

harassment that is not sexual in nature, but is gender-based,
 

is sufficient to establish a claim of sexual harassment under
 

the CRA. Id.
 

III. ANALYSIS
 

The CRA, MCL 37.2202(1), provides in relevant part:
 

An employer shall not do any of the following:
 

(a) Fail or refuse to hire or recruit,


discharge, or otherwise discriminate against an


individual with respect to employment,


compensation, or a term, condition, or privilege of


employment, because of religion, race, color,


national origin, age, sex, height, weight, or


marital status.
 

Accordingly, it is unlawful for employers to discriminate
 

against an individual with respect to a condition of
 

6 466 Mich 889 (2002).
 

5
 
employment because of sex. The CRA, MCL 37.2103(i), further
 

provides:
 

Discrimination because of sex includes sexual
 

harassment. Sexual harassment means unwelcome
 

sexual advances, requests for sexual favors, and


other verbal or physical conduct or communication


of a sexual nature under the following conditions:
 

(i) Submission to the conduct or communication


is made a term or condition either explicitly or


implicitly to obtain employment, public


accommodations or public services, education, or


housing.
 

(ii) Submission to or rejection of the conduct


or communication by an individual is used as a


factor in decisions affecting the individual’s


employment, public accommodations or public


services, education, or housing.
 

(iii) The conduct or communication has the


purpose or effect of substantially interfering with


an individual’s employment, public accommodations


or public services, education, or housing, or


creating an intimidating, hostile, or offensive


employment, public accommodations, public services,


educational, or housing environment.[7]
 

Plaintiff alleges that the conduct in this case violated
 

subsection iii by creating a hostile work environment. To
 

establish a prima facie case of hostile work environment based
 

on sexual harassment, plaintiff must show the following:
 

(1) the employee belonged to a protected


group;
 

(2) the employee was subjected to
 

communication or conduct on the basis of sex;
 

7 Subsections i and ii are commonly known as quid pro quo


sexual harassment, and subsection iii is commonly known as


hostile work environment sexual harassment.
 

6
 
(3) the employee was subjected to unwelcome


sexual conduct or communication;
 

(4) the unwelcome sexual conduct or
 

communication was intended to or in fact did
 

substantially interfere with the employee’s


employment or created an intimidating, hostile, or


offensive work environment; and
 

(5) respondeat superior. [Radtke v Everett,


442 Mich 368, 382-383; 501 NW2d 155 (1993); see


also Chambers v Trettco, Inc, 463 Mich 297, 311;


614 NW2d 910 (2000).]
 

The first element is easily met because “all employees
 

are inherently members of a protected class in hostile work
 

environment cases because all persons may be discriminated
 

against on the basis of sex.” Radtke, supra at 383. In this
 

case, plaintiff meets the first element because Rich was an
 

employee who was allegedly discriminated against on the basis
 

of sex. 


This Court concluded that, in order to meet the second
 

element, a plaintiff need not show that the conduct at issue
 

was sexual in nature; rather, a plaintiff need only show that
 

“‘but for the fact of her sex, she would not have been the
 

object of harassment.’” Id. (citation omitted). This second
 

element is derived from the language of MCL 37.2202(1), which
 

prohibits an employer from discriminating against an employee
 

“because of” sex. Obviously, an employer cannot be said to
 

have discriminated against an employee “because of” sex
 

unless, but for the fact of the employee’s sex, the employer
 

7
 
 

would not have discriminated against the employee. In this
 

case, plaintiff alleges that Findsen sexually harassed Rich by
 

making hostile and offensive comments about her gender.
 

Accordingly, plaintiff has sufficiently alleged that, but for
 

the fact of Rich’s sex, she would not have been the object of
 

harassment, and thus plaintiff meets the second element. 


However, in order to recover for sexual harassment,
 

plaintiff must not only show that the employee was
 

discriminated against because of sex, she must also show that
 

the employee was “subjected to unwelcome sexual conduct or
 

communication.” Radtke, supra at 382. This third element is
 

derived from MCL 37.2103(i), which provides that “[s]exual
 

harassment means unwelcome sexual advances, requests for
 

sexual favors, and other verbal or physical conduct or
 

communication of a sexual nature . . . .” In this case,
 

plaintiff concedes that there were no “unwelcome sexual
 

advances, requests for sexual favors, [or] other verbal or
 

physical conduct or communication of a sexual nature . . . .”
 

Plaintiff argues, instead, that the communication was 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
 

pregnancy is sexual harassment.” Again, the CRA, MCL
 

8
 
37.2202(1), prohibits employers from discriminating against
 

individuals on the basis of sex with respect to a condition of
 

employment. The CRA, MCL 37.2201(d), further provides that
 

“‘[s]ex’ includes, but is not limited to, pregnancy . . . .”
 

Accordingly, discrimination because of a woman’s pregnancy is
 

a form of discrimination because of sex. However, it is
 

obviously not the only type of discrimination because of sex
 

under the CRA. MCL 37.2103(i) also provides that
 

“[d]iscrimination because of sex includes sexual harassment.”
 

Accordingly, sexual harassment is another type of
 

discrimination because of sex. 


Although Koester, supra at 11, correctly recognized that
 

“discrimination on the basis of a woman’s pregnancy and sexual
 

harassment are ‘two subsets of sex discrimination,’” it
 

incorrectly concluded, in our judgment, that “harassment on
 

the basis of a woman’s pregnancy is sexual harassment.” Id.
 

at 10. Even assuming that harassment based on pregnancy may
 

constitute discrimination based on pregnancy, and thus sex
 

discrimination, harassment based on pregnancy that is not at
 

all sexual in nature simply is not sexual harassment.8 That
 

8

 When we refer to harassment based on pregnancy and


pregnancy discrimination in this opinion, we are referring to


conduct or communication that is pregnancy-based and that is


not sexual in nature. This sort of conduct or communication
 

is not sexual harassment. However, contrary to the dissent’s
 

contention, we do not foreclose the possibility that
 

(continued...)
 

9
 
is, although harassment based on pregnancy and sexual
 

harassment may both constitute sex discrimination, they
 

clearly do not both constitute sexual harassment.9
 

Pregnancy discrimination is sex discrimination, but it is
 

not sexual harassment. In order to prove pregnancy
 

discrimination, one must show that the employer discriminated
 

against the employee on the basis of a pregnancy. However, in
 

order for one to prove sexual harassment, one must show that
 

there was either “unwelcome sexual advances, requests for
 

sexual favors, [or] other verbal or physical conduct or
 

communication of a sexual nature . . . .”10 MCL 37.2103(i).
 

8

(...continued)


pregnancy-based comments may rise to the level of sexual


harassment where they are also of a “sexual nature.”
 

9

 The Court of Appeals panel in Koester v Novi concluded
 

that, even though evidence of harassment based on plaintiff’s


pregnancy is not proof of sexual harassment, it may be proof


of sex discrimination. 213 Mich App 653, 670 n 5; 540 NW2d


765 (1995). In the present case, we do not address whether
 

harassment based on pregnancy may constitute sex
 

discrimination because, even assuming that it does, that does


not change the fact that harassment based on pregnancy is not


sexual harassment, and thus, that the Supreme Court in Koester
 

erred in holding otherwise. Likewise, because the plaintiff


in the present case only asserts a claim of sexual harassment,
 

we do not address whether harassment based on sex may


constitute sex discrimination. 


10 As Justice Weaver in her partial dissent in Koester
 

explained:
 

While sexual harassment technically may be a


“subset” of sexual discrimination, a claim for


sexual harassment requires different proofs


(continued...)
 

10
 
Accordingly, pregnancy discrimination and sexual harassment
 

consist of substantially different elements, and thus a person
 

asserting a claim of sexual harassment must prove something
 

considerably different from a person asserting a claim of
 

pregnancy discrimination.
 

Further, although article two of the CRA, MCL 37.2201(d),
 

defines “sex” to include pregnancy, the Supreme Court in
 

Koester erred in applying this definition of “sex” to the
 

definition of “sexual harassment” found in article one of the
 

CRA, MCL 37.2103(i). Koester stated, “to say that comments of
 

a ‘sexual nature’ do not include comments about a woman’s
 

pregnancy ignores the specific definition of sex as contained
 

in the act.” Koester, 458 Mich 10-11. However, the
 

definition of “sex” found in article two, which includes
 

pregnancy, is preceded by the language, “As used in this
 

article . . . .” MCL 37.2201 (emphasis added). Therefore,
 

this definition of “sex” is only applicable to article two.
 

That is, although “sex” includes pregnancy for the purposes of
 

article two, “sex” does not include pregnancy for the purposes
 

10(...continued)


including proof of “unwelcome sexual advances,


requests for sexual favors, and other verbal or


physical conduct or communication of a sexual
 

nature.” Thus, while sexual harassment is always a
 

form of sex discrimination, all cases of sex


discrimination do not necessarily amount to sexual


harassment. [458 Mich 22-23.]
 

11
 
of article one, the article at issue here. Accordingly, the
 

Koester Court erred in applying article two’s definition of
 

“sex” to the definition of “sexual harassment” found in
 

article one.
 

To recapitulate, the CRA, MCL 37.2202(1)(a), prohibits
 

employment discrimination because of sex. The CRA, MCL
 

37.2201(d), defines “sex” to include pregnancy. Therefore, by
 

concluding that harassment based on pregnancy is sexual
 

harassment, the Koester Court also concluded that harassment
 

based on gender is sexual harassment, even though such
 

harassment is not at all of a sexual nature. However, the
 

CRA, MCL 37.2103(i), defines “sexual harassment” as “unwelcome
 

sexual advances, requests for sexual favors, and other verbal
 

or physical conduct or communication of a sexual nature
 

. . . .” It is clear from this definition of sexual
 

harassment that only conduct or communication that is sexual
 

in nature can constitute sexual harassment, and thus conduct
 

or communication that is gender-based, but that is not sexual
 

in nature, cannot constitute sexual harassment.11 Accordingly,
 

11 The dissent misconstrues our opinion as concluding that


“gender-based harassment ‘is not at all sexual in nature


. . . .’” Post at 2. To the contrary, our conclusion is not


that conduct cannot be both gender-based and sexual in nature,


and thus that conduct that is gender-based can never
 

constitute sexual harassment; rather, our conclusion is simply


that “conduct or communication that is gender-based, but is
 

not sexual in nature, does not constitute sexual harassment as


(continued...)
 

12
 
we overrule Koester to the extent that it concludes that
 

harassment based on gender that is not at all sexual in nature
 

constitutes sexual harassment under the CRA.12
 

The CRA, MCL 37.2103(i), clearly defines a hostile-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 no “unwelcome sexual advances, requests for sexual
 

favors, [or] other verbal or physical conduct or communication
 

11(...continued)


that term is clearly defined in the CRA.” See p 2. However,


if conduct is gender-based and sexual in nature, it may well


constitute sexual harassment.
 

12 The Supreme Court in Koester erred in relying on a


United States Supreme Court case that concluded that under


title VII (now title 42) “[a] trier of fact may find sexual


harassment when ‘the harasser is motivated by general


hostility to the presence of women in the workplace.’”


Koester, supra at 15, quoting Oncale v Sundowner Offshore
 

Services, Inc, 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 201
 

(1998). The CRA specifically defines “sexual harassment,”


while title VII does not. Therefore, while the United States


Supreme Court may not be bound by any specific definition of


“sexual harassment,” this Court is. As the Court of Appeals


explained in Koester:
 

[U]nlike the general language of title VII,


the CRA specifically defines “sexual harassment” as


unwelcome sexual advances, requests for sexual


favors, and other verbal or physical conduct or


communication of a sexual nature. The
 

Legislature’s choice of language forecloses our


reliance on title VII precedents to interpret


sexual harassment under the CRA. [213 Mich App
 

668-669.]
 

13
 
 

of a sexual nature . . . .”13 Accordingly, plaintiff clearly
 

has not established a claim of sexual harassment under the
 

CRA.
 

IV. STARE DECISIS
 

Overruling precedent must, of course, be undertaken with
 

caution and must only be done after careful consideration of
 

the effect of stare decisis. That is, courts must consider
 

“(a) whether the earlier decision was wrongly decided, and (b)
 

whether overruling such decision would work an undue hardship
 

because of reliance interests or expectations that have
 

arisen.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 757;
 

13 The dissent states that “[p]laintiff alleged that


decedent Rich . . . suffered . . . harassment of a ‘sexual’
 

nature,” post at 2, that plaintiff’s hostile-work-environment


action is “allegedly nonsexual,” id. at 6, and that
 

“[p]laintiff’s counsel did allege harassment of a sexual


nature,” id. at 25. However, no allegations of harassment of


a sexual nature can be found in plaintiff’s complaint.


Further, at the hearing on defendant’s motion for summary


disposition, plaintiff’s counsel specifically stated that the


alleged harassment was not sexual in nature. The dissent
 

mistakenly looks to plaintiff’s motion for reconsideration and


its accompanying affidavits for support for its assertion that


plaintiff alleged harassment of a sexual nature. The trial
 

court denied plaintiff’s motion for reconsideration and the


merits of that decision are not presently before this Court.


Instead, what is before this Court is whether the trial court
 

erred in granting summary disposition to defendants on


plaintiff’s sexual-harassment claim. Only the pleadings may


be considered when a motion for summary disposition is based,


as this one was, on MCR 2.116(C)(8). MCR 2.116(G)(5).


Therefore, there is absolutely no basis to look to plaintiff’s


motion for reconsideration and its accompanying affidavits to


determine whether the trial court erred in concluding that


plaintiff’s pleadings “failed to state a claim on which relief


can be granted.” MCR 2.116(C)(8). 


14
 
641 NW2d 567 (2002). 


With regard to the first inquiry, we believe, as we have
 

already observed, that Koester was wrongly decided. The CRA,
 

MCL 37.2103(i), specifically defines “sexual harassment” as
 

“unwelcome sexual advances, requests for sexual favors, and
 

other verbal or physical conduct or communication of a sexual
 

nature . . . .” Therefore, the conclusion reached in Koester
 

that gender-based harassment that is not at all sexual in
 

nature can constitute sexual harassment is clearly wrong.
 

With regard to the second inquiry, we must examine
 

“whether the previous decision has become so embedded, so
 

accepted, so fundamental, to everyone’s expectations that to
 

change it would produce not just readjustments, but practical
 

real-world dislocations.” Robinson v Detroit, 462 Mich 439,
 

466; 613 NW2d 307 (2000). We conclude that the decision in
 

Koester has not become “so embedded, so accepted, so
 

fundamental” within our legal system that overruling it will
 

interfere with any legitimate reliance or expectation
 

interests. “[T]o have reliance, the knowledge must be of the
 

sort that causes a person or entity to attempt to conform his
 

conduct to a certain norm before the triggering event.” Id.
 

at 467. Overruling Koester will not disrupt any reliance
 

interests as neither the plaintiff’s decedent nor the
 

defendants could conceivably have relied on our decision in
 

15
 
Koester to their detriment. In no respect did any of them
 

alter conduct in an attempt to conform such conduct to our
 

decision in Koester. That is, assuming that the employer here
 

did harass the plaintiff’s decedent on the basis of gender, it
 

certainly did not do so in reliance on our decision in
 

Koester, which concluded that such conduct, in fact,
 

constituted sexual harassment under the CRA. Nor could the
 

plaintiff’s decedent here have altered her conduct in any way
 

in detrimental reliance on Koester.14 Moreover, it is hard to
 

envision how any employer or employee conceivably could have
 

altered their conduct in any way in detrimental reliance on
 

when dealing 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 citizen first looks for
 

guidance in directing his actions. This is the
 

essence of the rule of law: to know in advance what
 

the rules of society are. Thus, if the words of


the statute are clear, the actor should be able to
 

14 Contrary to the dissent’s contention, we do not


“ignore[] the effect on this particular plaintiff[’s
 

decedent], and any plaintiff with a pending hostileenvironment claim that is not specifically sexual in nature.”


Post at 17. Rather, we have specifically considered and


addressed this issue and, as explained above, have concluded


that plaintiff’s decedent could not have possibly changed her


conduct in any way in reliance on our decision in Koester.
 

Further, we are not deciding here that plaintiff is not


entitled to any relief. Rather, we are simply deciding that


plaintiff is not entitled to relief for the claim of hostile


work environment based on sexual harassment.
 

16
 
expect . . . that they will be carried out by all


in society, including the courts. In fact, should
 

a court confound those legitimate citizen
 

expectations by misreading or misconstruing a
 

statute, it is that court itself that has disrupted


the reliance interest.[15]
 

Accordingly, our decision today, that gender-based harassment
 

that is not sexual in nature does not constitute sexual
 

harassment under the plain language of the CRA, will not
 

create any “practical real-world dislocations.”16
 

15 The dissent criticizes us for “ignor[ing] the
 

instability that results from this Court’s weak adherence to


the principle of stare decisis.” Post at 17. However, the


dissent seems oblivious to the instability that results from


courts of law failing to accord serious consideration to the


clear words of the law. While the majority in this case, at


least, has sought to balance these respective instabilities,


the dissent appears not to recognize the latter. Nor does the
 

dissent appear to recognize that a recurrent source of


disagreement between this majority and the dissent arises from


the majority’s determination to give meaning to the clear


words of the law. A principal rationale for doing this, of


course, is to limit the extent to which this Court in the


future must contribute to either of these potential sources of


legal instability. To conclude, as the dissent does, that


sexual harassment includes conduct or communication of a
 

nonsexual nature, even though MCL 37.2103(i) clearly defines


“sexual harassment” as “conduct or communication of a sexual
 

nature,” would be, in our judgment, to disregard the words


enacted by the Legislature and, not incidentally, create


future instability in the law.
 

16 During oral argument, plaintiff’s counsel, himself,


admitted that an overruling of Koester will not cause any


“practical real-world dislocations”:
 

Justice YOUNG: Do you anticipate that
 

employers, if Koester is trimmed in terms of its
 

broad implication, or overturned, that employers


generally are going to change their personnel


policies to reflect an ability—change from what


(continued...)
 

17
 
For these reasons, we conclude that Koester was wrongly
 

decided and that overruling it will not interfere with
 

legitimate reliance or expectation interests. Accordingly,
 

after considering the imperatives of stare decisis, we believe
 

that it is appropriate to overrule Koester to the extent that
 

it is inconsistent with our decision here today, and with the
 

CRA, that harassment on the basis of gender that is not at all
 

sexual in nature does not constitute sexual harassment.
 

V. RESPONSE TO THE DISSENT
 

First and foremost, the dissent seems to be confused
 

about what this case is and is not about. This confusion has
 

led the dissent to construe our opinion to mean something that
 

it clearly does not mean. That is, the dissent repeatedly
 

mischaracterizes our opinion as concluding that hostile-work16(...continued)


they’re doing now?
 

Mr. Boog: No because I think most employers


want their employees to be free of any type of


harassment.
 

Justice YOUNG: I’m asking do you anticipate,


given your experience, that they’ll change their


policies.
 

Mr. Boog: I would tell them to keep the same


policies for the sake of employee morality [sic].
 

Further, employers will still have to consider the


possibility of liability under the different language of title


VII of the federal civil rights act. 


18
 
environment actions are limited to claims of a sexual nature.
 

At no point in this opinion do we draw such a conclusion.
 

Rather, the only conclusion that we reach is the unremarkable
 

one that, because the CRA specifically defines sexual
 

harassment as “conduct or communication of a sexual nature,”
 

MCL 37.2103(i), in order to establish a hostile-workenvironment case based on sexual harassment, a plaintiff must
 

show that the conduct complained of was sexual in nature.
 

That is sexual harassment means sexual harassment. The
 

dissent would construe sexual harassment to mean harassment of
 

any kind.
 

The dissent argues that we should reach this conclusion
 

because, since an employer cannot discriminate against an
 

employee on the basis of gender, MCL 37.2202(1)(a), it
 

necessarily follows that “an employer may not turn a blind eye
 

to conduct that creates a hostile work atmosphere,” post at 8,
 

on the basis of gender. However, we do not even address the
 

substance of this argument because plaintiff’s only allegation
 

here is that the employee was sexually harassed and that this
 

sexual harassment created a hostile work environment.17
 

17 Contrary to the dissent’s contention, it is clear from


plaintiff’s complaint that she is seeking recovery on the


basis of a sexual-harassment claim. Specifically, plaintiff’s


complaint states, “[t]his is an action primarily for offensive


work environment-sexual and weight harassment . . . ;”


“[t]hroughout the course of Decedent Rich’s employment, and


(continued...)
 

19
 
Therefore, the only issue before us is whether plaintiff has
 

established a prima facie case of sexual harassment.
 

Accordingly, there is no need for us to reach out and address
 

whether the CRA recognizes a claim for hostile work
 

environment based on anything other than sexual harassment.18
 

17(...continued)


including, but not limited to within three years of her death,


Decedent Rich was sexually harassed . . . ;” and “[t]he


conduct of Defendants, and the agents, employees and
 

representatives of Defendants State of Michigan and Michigan


Department of State Police in sexually harassing Decedent Rich
 

. . . .” [Emphasis added.] In addition, as the dissent


recognizes, during oral argument, when specifically asked if


the only claim that was alleged was one based on sexual


harassment, plaintiff’s counsel answered in the affirmative.
 

18 Contrary to the dissent’s overheated assertions, our


opinion does not “oversimplif[y] the Civil Rights Act’s


hostile-work-environment proscription,” “necessarily confine[]


hostile-work-environment claims to those authorized by MCL


37.2103(i)(iii),” “severely constrict[] the scope of
 

Michigan’s Civil Rights Act,” or “eviscerate[] Michigan’s


hostile-work-environment jurisprudence” by “necessarily


precluding the recognition of actions for hostile work


environments based on religion, race, color, national origin,


age, sex (inasmuch as the harassment is not overtly ‘sexual’),


height, weight, or marital status under § 2202 of Michigan’s


Civil Rights Act.” Post at 2, 6, 8. Instead, our opinion


does not even address whether Michigan’s Civil Rights Act


creates a hostile-work-environment action based on something


other than sexual harassment because, as explained above, all


that is before us today is a hostile-work-environment action


that is based on sexual harassment. Plaintiff has not even
 

attempted to bring a hostile-work-environment action based on


anything other than sexual harassment. Contrary to the


dissent’s assertion, we are not concluding that “victims of


discrimination [may no longer] assert hostile-work-environment


claims unless the activity at issue is ‘sexual’ in nature,”


post at 16; instead, what we are concluding here today is that


a plaintiff may not assert a hostile-work-environment claim


based on sexual harassment without showing that the complained


(continued...)
 

20
 
See n 9.
 

Further, we disagree with the dissent’s assertion that
 

this Court is somehow bound to interpret Michigan’s Civil
 

Rights Act in accordance with the federal courts’
 

interpretation of the federal civil rights act. See n 11.
 

Even if, as the dissent states, the Michigan Legislature
 

relied heavily on the federal civil rights act in drafting
 

Michigan’s Civil Rights Act, the Michigan Legislature was
 

clearly not bound by the federal civil rights act. That is,
 

the Michigan Legislature was free to adopt a civil rights act
 

that differed from the federal civil rights act, and although,
 

as the dissent points out, there are many similarities between
 

the two acts, the Michigan Legislature did, in fact, choose to
 

adopt an act that is different from the federal act. Despite
 

the dissent’s determination not to allow them to do so, the
 

18(...continued)


of conduct was of a sexual nature.
 

The dissent further criticizes us for failing to
 

recognize that in a hostile-work-environment action a
 

plaintiff need not prove that she suffered a “tangible


employment action” or an “economic loss.” Post at 10, 26. We
 

are baffled by this criticism because nowhere in this opinion


do we even suggest that a plaintiff in a hostile-workenvironment action must prove that she suffered a tangible


employment action or an economic loss. Instead, we simply


conclude that, because it is uncontested that the conduct


complained of here was not at all sexual in nature, plaintiff


has not established a prima facie case of hostile work


environment based on sexual harassment because the CRA clearly


defines sexual harassment as “conduct or communication of a
 

sexual nature . . . .” MCL 37.2103(i).
 

21
 
Michigan Legislature is allowed to determine for itself the
 

extent to which it wishes to track the language of the federal
 

law. In particular, Michigan’s Civil Rights Act is different
 

from the federal civil rights act with regard to its treatment
 

of sexual harassment. The dissent fails to respect this
 

difference and, instead, concludes that because these acts are
 

nearly identical they must be construed to mean exactly the
 

same thing. We cannot agree that any time the Michigan
 

Legislature creates a law that is “similar” to a federal law,
 

it must be made identical, and the two laws must be
 

interpreted to mean exactly the same thing.19
 

19 The dissent criticizes us for “depart[ing] from this


sound tradition, and in doing so mak[ing] sweeping changes to


our employment-discrimination jurisprudence.” Post at 6. To
 

say the least, it is no “sweeping change” to construe


different laws in a different manner. Unlike the dissent, we


refuse to ignore the Michigan Legislature’s express definition


of “sexual harassment,” and, instead, to adopt the federal


courts’ definition of “sexual harassment” pursuant to an


altogether different law. This refusal is not based on a
 

preference for one definition over the other, but on our


recognition of our obligation to adhere to the clear language


of the law.
 

The dissent characterizes our attempt to give effect to


the Legislature’s express definition of “sexual harassment” as


“a perfunctory textual analysis that misconstrues our
 

Legislature’s intent.” Post at 8. It is unfortunate that the
 

dissent feels this way because we do not know how the


Legislature could have made its intent any more clear. The
 

Legislature defined “sexual harassment” as “conduct or
 

communication of a sexual nature . . . .” MCL 37.2103(i). In
 

light of this clear definition, we are at a loss to know how


the dissent can conclude with a straight face that the


Legislature intended sexual harassment to include conduct or


(continued...)
 

22
 
 

Title VII of the federal civil rights act, like the
 

Michigan Civil Rights Act, prohibits discrimination because of
 

sex. However, unlike our civil rights act, title VII does not
 

specifically prohibit and define “sexual harassment.” Our
 

civil rights act specifically defines “sexual harassment” as
 

“conduct or communication of a sexual nature . . . .” MCL
 

37.2103(i). Title VII, on the other hand, simply prohibits
 

discrimination because of sex and the federal courts have
 

construed this to include sexual harassment. Meritor Savings
 

Bank, FSB v Vinson, 477 US 57, 66-67; 106 S Ct 2399; 91 L Ed
 

2d 49 (1986). That is, “federal case law has created a cause
 

of action for sexual harassment under the general prohibition
 

against gender discrimination,” Koester, 213 Mich App 668,
 

while, the Michigan Legislature has specifically created a
 

cause of action for both sex discrimination and sexual
 

harassment.20
 

19(...continued)


communication of a nonsexual nature. If, as the dissent seems


to believe, sexual harassment includes conduct or
 

communication of a sexual and of a nonsexual nature, wouldn’t


that mean that sexual harassment simply includes all conduct
 

or communication? Unlike the dissent, we are comfortable in


concluding that the Legislature intended what it said.


Further, we do not find the Legislature’s intent that “sexual


harassment” means harassment that is sexual in nature to be in
 

the slightest bit surprising or unexpected.
 

20 For these reasons, we agree with the analysis in the


Court of Appeals decision in Koester, 213 Mich App 668-669,


and in the partial dissent to this Court’s decision in


(continued...)
 

23
 
VI. CONCLUSION
 

The CRA prohibits sexual harassment, which is defined in
 

that act as “unwelcome sexual advances, requests for sexual
 

favors, and other verbal or physical conduct or communication
 

of a sexual nature . . . .” MCL 37.2103(i). Accordingly,
 

conduct or communication that is gender-based, but is not
 

sexual in nature, does not constitute “sexual harassment” as
 

that term is defined in the CRA. Therefore, in this case,
 

where plaintiff concedes that the communication was not sexual
 

in nature, but contends that it was gender-based, plaintiff
 

has not set forth a claim of sexual harassment under the CRA.
 

For these reasons, we reverse the judgment of the Court of
 

Appeals and reinstate the circuit court’s order granting
 

summary disposition in favor of defendants.
 

Stephen J. Markman


Maura D. Corrigan


Clifford W. Taylor


Robert P. Young, Jr.
 

20(...continued)


Koester, 458 Mich 23-24, concluding that we should not rely on


title VII precedents to interpret sexual harassment under the


language of our very different civil rights act. 


24
 
 

 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

CAROL HAYNIE, Personal


Representative for the ESTATE OF


VIRGINIA RICH, Deceased,
 

Plaintiff-Appellee,
 

v No. 120426
 

THE STATE OF MICHIGAN and THE 


MICHIGAN DEPARTMENT OF STATE
 

POLICE,
 

Defendants-Appellants,
 

and
 

DANIEL KECHAK and DANIEL PAYNE,
 

Defendants.
 

WEAVER, J. (concurring).
 

I concur in the result and reasoning of the majority,
 

except that I do not join in part V, “Response to the
 

Dissent.” 


Elizabeth A. Weaver
 
S T A T E O F M I C H I G A N
 

SUPREME COURT
 

CAROL HAYNIE, Personal

Representative for the ESTATE

OF VIRGINIA RICH, Deceased, 

Plaintiff-Appellee, 

v No. 120426 

THE STATE OF MICHIGAN and 

THE MICHIGAN DEPARTMENT OF 

STATE POLICE, 

Defendants-Appellants, 

and 

DANIEL KECHAK and DANIEL PAYNE, 

Defendants. 

___________________________________ 

CAVANAGH, J. (dissenting). 

Today the majority rejects plaintiff’s sex-based 

hostile-work-environment claim because it is not sexual in
 

nature. According to the majority, “conduct or communication
 

that is gender-based, but is not sexual in nature, does not
 

constitute sexual harassment as that term is clearly defined
 

in [MCL 37.2103(i) of] the [Civil Rights Act].” Ante at 2.
 

By dismissing plaintiff’s claim, the majority severely
 

constricts the scope of Michigan’s Civil Rights Act,
 
necessarily precluding the recognition of actions for hostile
 

work environments based on religion, race, color, national
 

origin, age, sex (inasmuch as the harassment is not overtly
 

“sexual”), height, weight, or marital status under § 2202 of
 

Michigan’s Civil Rights Act. 


Because the majority oversimplifies the Civil Rights
 

Act’s hostile-work-environment proscription and mistakenly
 

concludes that gender-based harassment “is not at all sexual
 

in nature,” I must respectfully dissent. Ante at 1.
 

Facts & Proceedings
 

Plaintiff alleged that decedent Rich, employed for more
 

than twenty-five years as a capital security officer with the
 

Michigan State Police, suffered weight- and gender-based
 

harassment, as well as harassment of a “sexual” nature.1
 

The trial court summarily disposed of plaintiff’s sexualharassment claim on defendant’s motion, concluding that the
 

alleged conduct was gender-based and, thus, not of a “sexual”
 

nature, as required by § 2103(i)(iii).
 

Plaintiff’s counsel submitted a motion for
 

reconsideration, which was supported by an affidavit from
 

decedent’s sister.2 The affidavit alleged that decedent had
 

1Joint Appendix, p 19a (para 31), citing MCL 37.2101.
 

2Brief in Support of Plaintiff’s Motion for Rehearing and


Reconsideration, filed May 5, 1998, in the Ingham Circuit


(continued...)
 

2
 
 

repeatedly and continually received sexually explicit cartoons
 

and other material of a sexual nature in her mailbox, to which
 

her supervisors failed to adequately respond.3 Counsel also
 

attached a grievance filed by decedent against a coworker,
 

claiming the colleague pushed and hit her, and used “sexual
 

harassment talk” to make her look like “one of the guys” in
 

front of the new recruits.4 In addition, the grievance
 

alleged that the same individual directed additional unwelcome
 

sexual comments at decedent.5 The trial judge denied
 

plaintiff’s motion for reconsideration and refused to allow
 

plaintiff’s counsel to amend the complaint. 


Plaintiff filed an interlocutory appeal, which the Court
 

of Appeals denied. After the parties stipulated the dismissal
 

of plaintiff’s weight-based harassment claim, plaintiff filed
 

an appeal as of right with the Court of Appeals, which
 

reversed, holding that plaintiff alleged facts sufficient to
 

support a sexual-harassment claim. 


2(...continued)


Court.
 

3Perreault Affidavit, paragraphs 5, 10, p 2.
 

4See attachment to plaintiff’s motion for
 

reconsideration, filed May 5, 1998.
 

5Id.
 

3
 
The Elliott-Larsen Civil Rights Act
 

When the Michigan Legislature drafted our Civil Rights
 

Act, MCL 37.2101 et seq., it relied heavily on the original
 

federal title VII statutes banning workplace discrimination.
 

Reviewing the text of each confirms this design. MCL
 

37.2202(1) of Michigan’s Civil Rights Act provides:
 

An employer shall not do any of the following:


 (a) Fail or refuse to hire or recruit,


discharge, or otherwise discriminate against an


individual with respect to employment,


compensation, or a term, condition, or privilege of


employment, because of religion, race, color,


national origin, age, sex, height, weight, or


marital status. 


(b) Limit, segregate, or classify an employee


or applicant for employment in a way that deprives


or tends to deprive the employee or applicant of an


employment opportunity, or otherwise adversely


affects the status of an employee or applicant


because of religion, race, color, national origin,


age, sex, height, weight, or marital status. 


Similarly, the federal statute provides: 


(a) It shall be an unlawful employment


practice for an employer— 


(1) to fail or refuse to hire or to discharge
 

any individual, or otherwise to discriminate
 

against any individual with respect to his
 

compensation, terms, conditions, or privileges of


employment, because of such individual's race,


color, religion, sex, or national origin; or
 

(2) to limit, segregate, or classify his


employees or applicants for employment in any way


which would deprive or tend to deprive any


individual of employment opportunities or otherwise


adversely affect his status as an employee, because


of such individual's race, color, religion, sex, or
 

4
 
national origin. [42 USC 2000e-2.]
 

But for the addition of age, height, weight, and marital
 

status as prohibited grounds of discrimination, as well as a
 

few minor drafting variations, MCL 37.2202(1) and 42 USC
 

2000e-2 would be identical. 


As with any statute subject to judicial review, our
 

courts have developed rules that articulate the necessary
 

elements of statutory claims. Because Michigan’s employmentdiscrimination statute so closely mirrors federal law, we
 

often rely on federal precedent for guidance. See Radtke v
 

Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993), quoting
 

Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 525; 398
 

NW2d 368 (1986) (“While this Court is not compelled to follow
 

federal precedent or guidelines in interpreting Michigan law,
 

this Court may, ‘as we have done in the past in discrimination
 

cases, turn to federal precedent for guidance in reaching our
 

decision.’”). As a result, employment-discrimination actions
 

under state law are nearly identical to federal actions. For
 

example, our courts have recognized both disparate-treatment
 

and disparate-impact actions identical to those articulated by
 

the United States Supreme Court.6
 

6 See Lytle v Malady (On Rehearing), 458 Mich 153, 173 n
 

19; 579 NW2d 906 (1998), citing McDonnell Douglas Corp v
 

Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)


(observing that Michigan adopted the four-part disparate­

(continued...) 

5
 
Regrettably, the majority now departs from this sound
 

tradition and, in doing so, makes sweeping changes to our
 

employment-discrimination jurisprudence. Hostile-workenvironment actions, available on the basis of any ground
 

articulated in the federal statute, will now be limited to
 

claims of a sexual nature under our state Civil Rights Act.
 

By dismissing plaintiff’s allegedly nonsexual 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 would 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 from the United States Supreme Court's


McDonnell Douglas test to prove a prima facie case of
 

discrimination); Smith v Consolidated Rail Corp, 168 Mich App


773, 776; 425 NW2d 220 (1988), citing Albemarle Paper Co v
 

Moody, 422 US 405, 425; 95 S Ct 2362; 45 L Ed 2d 280 (1975)


(articulating disparate-impact action as prescribed by the


Supreme Court). 


6
 
of discrimination, but experiences no tangible employment
 

action. No longer will an employee subject to a sex-based
 

(but not overtly sexual) hostile work environment find
 

redress, even though an employer may fail to adequately
 

respond. 


Hostile-Work-Environment Actions 


 Although this Court has never before expressly analyzed
 

the origin of nonsexual hostile-work-environment claims under
 

our Civil Rights Act, our courts have recognized that such
 

claims may be asserted on the basis of any ground enumerated
 

in Michigan’s Civil Rights Act in MCL 37.2202. Malan v Gen
 

Dynamics Land Sys, Inc, 212 Mich App 585, 587; 538 NW2d 76
 

(1995) (holding that a hostile-work-environment claim is
 

actionable on the basis of any one of the enumerated
 

classifications in MCL 37.2202), citing Rasheed v Chrysler
 

Corp, 445 Mich 109; 517 NW2d 19 (1994) (religion-based
 

harassment from coworkers and supervisors); Sumner, supra at
 

538 (race-based harassment from supervisors as a continuing
 

violation); Meek v Michigan Bell Co, 193 Mich App 340,
 

342-343; 483 NW2d 407 (1992) (sex-based and religion-based
 

harassment from supervisors); see also Jackson v Quanex Corp,
 

191 F3d 647 (CA 6, 1999) (recognizing race-based, 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 disability-based, hostile-work-environment
 

action). These rulings both identify and effectuate our
 

Legislature’s intent to prohibit prejudicial discrimination in
 

the employment realm. 


Lamentably, the majority now eviscerates Michigan’s
 

hostile-work-environment jurisprudence with a perfunctory
 

textual analysis that misconstrues our Legislature’s intent.
 

To clarify the errors present in the majority’s reasoning, I
 

will examine the text of the statute in light of its history
 

and context. 


MCL 37.2202
 

The broad language of Michigan’s Civil Rights Act
 

expressly prohibits acts that “discriminate against an
 

individual with respect to employment, compensation, or a
 

term, condition, or privilege of employment . . . .” MCL
 

37.2202(1)(a). Neither may an employer “[l]imit, segregate,
 

or classify an employee . . . in a way that deprives or tends
 

to deprive the employee . . . of an employment opportunity, or
 

otherwise adversely affects the status of an employee . . . .”
 

MCL 37.2202(1)(b). This mandate prohibits employment
 

conditions that are likely to deprive an employee of an
 

opportunity or negatively affect her employment status. In
 

other words, an employer may not turn a blind eye to conduct
 

that creates a hostile work atmosphere on the grounds
 

8
 
enumerated above.
 

The United States Supreme Court has interpreted the
 

analogous federal statute—containing language nearly identical
 

to MCL 37.2202 of our Civil Rights Act—and has concluded that
 

its text supports hostile-work-environment claims on the basis
 

of any ground enumerated in 42 USC 2000e-2. According to that
 

Court, the prohibition on discrimination “is not limited to
 

‘economic’ or ‘tangible’ discrimination.” Meritor Savings
 

Bank, FSB v Vinson, 477 US 57, 64; 106 S Ct 2399; 91 L Ed 2d
 

49 (1986). “The phrase ‘terms, conditions, or privileges of
 

employment’ evinces a congressional intent ‘to strike at the
 

entire spectrum of disparate treatment of men and women,’” and
 

extends to all forms of discrimination prohibited by the
 

federal statute. Meritor, supra at 64, and at 66, citing
 

Firefighters Institute for Racial Equality v St Louis, 549 F2d
 

506 (CA 8, 1977) (race); Compston v Borden, Inc, 424 F Supp
 

157 (SD Ohio, 1976) (religion); and Cariddi v Kansas City
 

Chiefs Football Club, 568 F2d 87, 88 (CA 8, 1977) (national
 

origin).
 

The phrase terms, conditions or privileges of


employment in [title VII] is an expansive concept


which sweeps within its protective ambit the
 

practice of creating a working environment heavily


charged with ethnic or racial discrimination . . .
 

. One can readily envision working environments so


heavily polluted with discrimination as to destroy


completely the emotional and psychological


stability of minority group workers . . . .
 

9
 
[Meritor, supra at 66, citing Rogers v Equal
 

Employment Opportunity Comm, 454 F2d 234, 238 (CA
 

5, 1971).]
 

With this recognition, the Supreme Court clarified that
 

the plain text of the federal statute prohibits severe and
 

pervasive employment discrimination—what we often refer to as
 

a hostile work environment—without regard to whether a
 

plaintiff suffers a tangible employment action. Instead of
 

acknowledging our identical legislative directive in § 2202,
 

which imposes no economic-loss requirement, the majority
 

ignores its relevance and focuses exclusively on subsection
 

2103(i), which simply clarifies that sex discrimination
 

includes sexual harassment. While I agree that subsection
 

2103(i) clarifies which forms of sexual harassment are
 

prohibited, it does not narrow MCL 37.2202, which outlaws
 

employer-sanctioned work environments hostile to employees on
 

the basis of, inter alia, sex.
 

MCL 37.2103(i)
 

The majority rejects my interpretation because MCL
 

37.2103(i) expressly authorizes sexual-harassment, hostilework-environment claims, while the federal statute contains no
 

similar statutory counterpart. Apparently, the majority
 

assumes the legislative directive with regard to sexual
 

harassment in subsection 2103(i) precludes hostile-environment
 

claims on other bases, i.e., if our Legislature had wanted to
 

10
 
__________________________________________________ 

prohibit work environments inhospitable to employees on the
 

basis of, inter alia, race, religion, or sex, it would have
 

stated as much. However, this often disfavored canon of
 

negative implication is less than persuasive, particularly
 

when the origin of MCL 37.2103(i) is understood in context. 


As the text indicates, our Legislature enacted 1980 PA
 

202, later codified as MCL 37.2103(i), to clarify that sexual
 

harassment was, indeed, prohibited by Michigan’s Civil Rights
 

Act. In drafting the text, the Legislature relied heavily on
 

language used by the federal agency charged with enforcing the
 

federal employment rights act, the Equal Employment
 

Opportunity Commission. 


As originally enacted, 29 CFR 1604.11 provided: 


(a) Harassment on the basis of sex is a


violation of Sec. 703 of Title VII. [1] Unwelcome
 

sexual advances, requests for sexual favors, and


other verbal or physical conduct of a sexual nature


constitute sexual harassment when
 

(1) submission to such conduct is made either


explicitly or implicitly a term or condition of an


individual's employment, 


(2) submission to or rejection of such conduct
 

by an individual is used as the basis for
 

employment decisions affecting such individual, or
 

(3) such conduct has the purpose or effect of


unreasonably interfering with an individual's work


performance or creating an intimidating, hostile,


or offensive working environment.
 

[1] The principles involved here continue to apply to


race, color, religion or national origin.
 

11
 
 

Our statute is nearly identical. MCL 37.2103(i) provides:
 

Discrimination because of sex includes sexual
 

harassment. Sexual harassment means unwelcome
 

sexual advances, requests for sexual favors, and


other verbal or physical conduct or communication


of a sexual nature under the following conditions:


 (i) Submission to the conduct or communication
 

is made a term or condition either explicitly or


implicitly to obtain employment, public


accommodations or public services, education, or


housing.


 (ii) Submission to or rejection of the conduct


or communication by an individual is used as a


factor in decisions affecting the individual's


employment, public accommodations or public


services, education, or housing.


 (iii) The conduct or communication has the
 

purpose or effect of substantially interfering with


an individual's employment, public accommodations


or public services, education, or housing, or


creating an intimidating, hostile, or offensive


employment, public accommodations, public services,


educational, or housing environment.
 

By codifying the federal guidelines, our Legislature merely
 

clarified that the sexual-harassment protections in the
 

federal statutes were analogous in scope to those in
 

Michigan’s Civil Rights Act. Both those lobbying for and
 

against the bill agreed that harassment cases in general—and
 

sexual-harassment cases in particular—could be brought under
 

the current statute. House Analysis, HB 4407 (August 15,
 

1980). In fact, opponents of the bill argued the amendment
 

might cause confusion within the judicial branch: 


12
 
The civil rights act’s coverage of sexual


harassment should not be changed as proposed by the


bill. The act currently covers sexual harassment


in the same manner as it is covered by the federal


government in Title VII cases. That is, sexual


harassment is covered under the general language


prohibiting sexual discrimination. There has been
 

a series of administrative and judicial cases


clearly enunciating the appropriateness of this


coverage, and it is feared that future anti-sexual


harassment court decisions based on federal
 

provisions and precedents would not be applicable


or have a significant impact on Michigan if this


state was prohibiting sexual harassment under
 

different statutory language than used on the


federal level. [Id. at 3.] 


While acknowledging this concern, those in favor of the
 

provision felt that the amendment was “necessary to ‘motivate’
 

the [Michigan Department of Civil Rights] to treat sexual
 

harassment as a bona fide civil rights violation . . . .” Id.
 

at 2. Before this enactment, the Department of Civil Rights
 

often refused to pursue sexual-harassment claims unless the
 

victim was also a member of a minority group. Id.
 

Forebodingly, members of the Legislature worried that, with
 

the addition of MCL 37.2103(i), the Michigan judiciary might
 

reject the utility of federal precedent in nonsexual 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 it
 

gives limited meaning to 1980 PA 202. After all, if the Civil
 

Rights Act already prohibited discriminatory and hostile work
 

environments, 1980 PA 202 added little. Adding little,
 

13
 
however, does not mean adding nothing. As noted in the House
 

Bill Analysis, the enactment did clarify that sexual
 

harassment was prohibited. This affirmation was necessary in
 

light of the number of federal district court decisions that
 

refused to acknowledge that quid pro quo sexual harassment
 

constituted discrimination based on sex. See Miller v Bank of
 

America, 418 F Supp 233, 234 (ND Cal, 1976) (“essentially the
 

isolated and unauthorized sex misconduct of one employee to
 

another” not recognizable under title VII), rev’d Miller v
 

Bank of America, 600 F2d 211 (CA 9, 1979) (finding as a matter
 

of law that conduct of a sexual nature constituted
 

discrimination based on sex). Because the Michigan Department
 

of Civil Rights, which was responsible for enforcing the act,
 

all but refused to pursue such claims, our Legislature could
 

not leave it to the agency to address the issue as Congress
 

could. Viewed in context, one has little doubt that 1980 PA
 

202 served a significant purpose, even if it merely reiterated
 

the scope of protections afforded by the Civil Rights Act.
 

Moreover, any alleged redundancy under my interpretation
 

of MCL 37.2103(i)(iii) is also present in the majority’s
 

interpretation of subsections 2103(i)(i) and 2103(i)(ii)
 

(often referred to as quid pro quo harassment). Unless the
 

majority would construe the discrimination ban in employment
 

(MCL 37.2202), public accommodations (MCL 37.2302), and
 

14
 
education (MCL 37.2402) in a manner that would otherwise
 

permit unwelcome conduct of a sexual nature, then it must
 

agree that subsection 2103(i) merely clarified what the Civil
 

Rights Act had already proscribed. To now construe MCL
 

37.2103(i) in a fashion that limits the scope of protections
 

present throughout the act ignores both its specific text and
 

overall structure. 


Although, on occasion, I have agreed with earlier
 

holdings that note that Michigan’s sexual-harassment doctrine
 

has a specific statutory basis in contrast to its federal
 

statutory counterpart,7 I find no legitimate reason to
 

conclude that hostile-work-environment claims should be
 

limited to incidents of harassment that are sexual in nature.
 

The plain text of the Michigan Civil Rights Act requires this
 

interpretation.
 

The majority’s failure to acknowledge the effect of its
 

decision is quite unfortunate. If plaintiff’s gender-based
 

hostile-work-environment claim must be dismissed because it is
 

not of an overtly “sexual” nature, then work environments
 

inimical to a reasonable person on the basis of religion,
 

race, color, national origin, age, sex (inasmuch as it refers
 

to “gender-based” discrimination), height, weight, or marital
 

7 See Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910
 

(2000); Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314


(1996).
 

15
 
status are no longer actionable. This interpretation cannot
 

be rationally construed from the text of Michigan’s Civil
 

Rights Act.
 

Stare Decisis
 

In its hasty attempt to explain Michigan’s civil-rights
 

jurisprudence, the majority continues by overruling Koester v
 

Novi, 458 Mich 1; 580 NW2d 835 (1998), and clarifying that
 

pregnancy, though not at issue here, is not of a sexual
 

nature. However, as I indicated in the Koester majority
 

opinion:
 

Under [that] reasoning, claims of racial
 

harassment would also fail (despite being


recognized by the federal courts), because the act


prohibits racial "discrimination" not "racial
 

harassment." This interpretation defies logic.


See Harrison v Metropolitan Gov't of Nashville &
 

Davidson Co, 80 F3d 1107 (CA 6, 1996), and Snell v
 

Suffolk Co, 782 F2d 1094 (CA 2, 1986) (allowing a


claim for racial harassment). [Koester, supra at
 

11 n 3.]
 

The majority purportedly justifies this shift by
 

attempting to clearly mark the boundaries of all things
 

“sexual.” In narrowly defining subsection 2103(i), the Court
 

attempts to foreclose actions previously recognized on the
 

basis of, inter alia, race, “gender,” national origin, or
 

religion. No longer may victims of discrimination assert
 

hostile-work-environment claims unless the activity at issue
 

is “sexual” in nature. This sweeping change is a direct
 

result of the majority’s rejection of Koester. Though the
 

16
 
majority opinion belies the significance of this shift,
 

Justice Taylor clarified the stakes at oral argument: 


Justice TAYLOR: Wouldn't the distinction
 

between these two causes of action be that in the
 

case of discrimination the employee has to endure


certain kinds of unpleasant remarks until such time


as there is an adverse job action of some kind. In
 

the case of sexual harassment that isn't true. The
 

person who is the victim of that only need prove


that there has been a substantial interference with
 

the employee's employment or that this is creating


an intimidating, hostile or offensive work
 

environment.
 

[Attorney for Plaintiff]: I would agree with


that.
 

Justice TAYLOR: Isn't that the great sort of


overarching sort of written in neon understanding


of this.
 

[Attorney for Plaintiff]: I would agree with


that.
 

Although a majority now claims that overruling Koester
 

would work no “undue hardship because of reliance interests or
 

expectations that have arisen,” ante at 15, I suspect few
 

advocates in plaintiffs’ bar would agree. Robertson v
 

DaimlerChrysler Corp, 465 Mich 732, 757 (2002). Moreover, the
 

contention that overruling Koester would produce no “realworld dislocations,” ante at 17, ignores the effect on this
 

particular plaintiff, and any plaintiff with a pending
 

hostile-environment claim that is not specifically sexual in
 

nature. To claim that “it is hard to envision how any
 

employer or employee conceivably could have altered their
 

17
 
 

conduct in any way in detrimental reliance on Koester” ignores
 

the instability that results from this Court’s weak adherence
 

to the principle of stare decisis. Ante at 16 (emphasis in
 

original).8
 

To summarize, the majority overrules precedent and
 

rejects plaintiff’s claim because our Legislature did not
 

specifically articulate the parameters of hostile-workenvironment claims for conduct not overtly sexual in nature.
 

In doing so, the Court relies on a rather weak canon of
 

negative implication9 and ignores the plain text of MCL
 

37.2202, which does not require an economic injury. The Court
 

also dismisses our Legislature’s intention to mimic the scope
 

8To reassure its audience that overruling Koester is
 

appropriate, the majority quotes from Justice Young’s dialogue


with plaintiff’s counsel at oral argument. Ante at 18 n 16.
 

However, simply because counsel agreed that rejecting Koester
 

would produce no “practical real-world dislocations . . . .”,


it is important to note that only those employers subject to


the federal statutes will be forced to adhere to the higher


standards. Moreover, while employment handbooks provide


useful indicators of employers’ policies, few harassing work


environments are officially condoned. More often, employers


or their supervisors simply fail to respond adequately to


harassment from coworkers, as alleged by plaintiff in this


case. Therefore, although responsive to Justice Young’s


inquiry, I find little solace in counsel’s claim that he would


recommend employers retain their current employment


policies—in spite of their decreased liability pursuant to


this decision. 


9Eskridge, Frickey, & Garrett, Legislation and Statutory
 

Interpretation, (Foundation Press: New York, 2000) p 256


(“Descriptively, people do not necessarily intend their list


of directed activities to be comprehensive ones or even think


through all the permutations to which their directives might


be applied.”).
 

18
 
of protections afforded by federal antidiscrimination law, as
 

evident in the textual similarities of MCL 37.2202 and 42 USC
 

2000e-2. Finally, in a most ironic twist, the majority
 

overrules Koester under the guise of its respect for the rule
 

of law, i.e, statutory meaning should be predictable,
 

accessible, and neutrally applied. In light of the text
 

employed by our Legislature, which indicates a desire to
 

extend protections parallel in scope with federal law, our
 

Court’s reliance on federal precedent for guidance, and this
 

Court’s precedent in Koester, I cannot agree that the
 

majority’s interpretation furthers either our Legislature’s
 

intent or the rule of law. 


Sexual Harassment Includes Gender-Based Discrimination
 

Though unnecessary to clarify the availability of
 

“gender-based” hostile-work-environment claims for the reasons
 

stated above, it is worth noting that the plain text of
 

subsection 2103(i) alone permits gender-based claims. When
 

“verbal or physical conduct or communication of a sexual
 

nature” is made a condition of or substantially interferes
 

with, inter alia, employment, the conduct is proscribed. Id.
 

This prohibition was enacted not because all things sexual are
 

inherently discriminatory when targeted at an individual on
 

the basis of her sex, but because sexual conduct that exploits
 

our socially constructed concepts of gender perpetuates
 

19
 
unlawful discrimination. 


Our courts have recognized that conduct of a “sexual”
 

nature is not prohibited simply because it is “of or
 

pertaining to sex or the attribute of being either male or
 

female” or “existing or predicated with regard to sex.”
 

Oxford English Dictionary (2d ed). Rather, unwelcome sexual
 

conduct is prohibited because it risks exploiting gender-based
 

inequality.10 As noted in Radtke: 


[S]exual harassment is prohibited in the
 

workplace because it violates civil liberty:
 

“Sexual harassment should be explicitly . . .


prohibited because it is a demeaning, degrading,


and coercive activity directed at persons on the


basis of their sex, the continuation of which is


often contingent on the harasser's economic control


over the person being harassed. It should be
 

outlawed because it violates basic human rights of


privacy, freedom, sexual integrity and personal


security.” [Radtke, supra at 380-381, quoting


House Bill Analysis 4407 (August 15, 1980).] 


Just five years ago, in Koester, this Court acknowledged
 

10 Legal scholars have articulated this link: 


[W]omen are socially defined as women largely


in sexual terms. The behaviors to which women are
 

subjected in sexual harassment are behaviors
 

specifically defined and directed toward the
 

characteristics which define women’s sexuality:


secondary sex characteristics and sex-role
 

behavior. It is no accident that the English


language uses the term sex ambiguously to refer


both to gender status (as in “the female sex”) and


to the activity of intercourse (as in “to have


sex”). The term sexual is used in both senses.
 

[MacKinnon, Sexual Harassment of Working Women


(Yale University Press: New Haven, 1979), p 182.] 


20
 
that harassing conduct need not be specifically motivated by
 

sexual desire to support an inference of discrimination. It
 

is sufficient that the conduct “is motivated by general
 

hostility to the presence of women in the workplace.”
 

Koester, supra at 15, quoting Oncale, supra at 80.
 

“‘To be sure, the phrase "sexual harassment"


can be a misnomer. As several [federal] circuits


have now recognized, the touchstone of an
 

actionable . . . sexual harassment claim is not
 

whether the offensive conduct includes "sexual
 

advances or . . . other incidents with clearly


sexual overtones." . . . The critical inquiry "is


whether members of one sex are exposed to
 

disadvantageous terms or conditions of employment


to which members of the other sex are not exposed."


[Koester, supra at 13 (citations omitted), quoting


Mentch v Eastern Savings Bank, FSB, 949 F Supp


1236, 1245-1246 (D Md, 1997), quoting Harris v
 

Forklift Systems, Inc, 510 US 17, 25; 114 S Ct 367;


126 L Ed 2d 295 (1993).]
 

Contrary to the majority’s assertion, only by
 

acknowledging the link between sexual conduct and gender-based
 

inequality can the sexual-harassment provision, MCL
 

37.2103(i), be rationally applied.
 

Clarification of the Scope of this Action 


The majority’s ardent response to my dissent suggests I
 

have misunderstood its position and the scope of its holding.
 

Ultimately, the reader will judge the accuracy of that
 

accusation. Nevertheless, I believe a certain degree of
 

clarification is required. 


The majority claims that plaintiff only alleged a sexual21
 
 

harassment claim and, therefore, “there is no need for [it] to
 

reach out and address whether the CRA recognizes a claim for
 

hostile work environment based on anything other than sexual
 

harassment.” Ante at 20. However, this position disregards
 

the allegations articulated in plaintiff’s complaint.
 

Plaintiff claimed the conduct of defendant’s employees, “in
 

sexually harassing [d]ecedent Rich, constitutes sexual
 

discrimination in violation of MCL 37.2101 . . . et seq.”
 

(Emphasis added.) Plaintiff stated that the “harassment
 

included, but was not limited to, frequent comments regarding
 

[d]ecedent Rich’s gender, weight and ability as a Capitol
 

Security Officer” and, “on many occasions, [Findsen] made
 

hostile and offensive comments to [d]ecedent Rich regarding
 

her sex, weight and ability as a Capitol Security Officer.”
 

Though the majority cannot dispute “sex discrimination,” as
 

proscribed by MCL 37.2202(1), has been alleged, it apparently
 

presumes that plaintiff seeks recovery only under a narrow
 

subcategory of “sex discrimination,” i.e., sexual harassment
 

as defined by MCL 37.2103(i)(iii). The majority claims that
 

this assumption justifies its refusal to entertain a 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 in her
 

22
 
briefs to the circuit court, the Court of Appeals, and this
 

Court. Plaintiff noted that both federal and Michigan courts
 

“are increasingly recognizing claims for workplace harassment
 

that go beyond traditional sexual harassment cases.”11 To
 

support this claim, plaintiff’s counsel cited Michigan
 

precedent holding “that harassment based on any one of the
 

enumerated classifications [in MCL 37.2202] is an actionable
 

offense.” See n 11, each citing Malan v General Dynamics Land
 

Systems, Inc, 212 Mich App 585; 538 NW2d 76 (1995). I am
 

unable to identify what more plaintiff’s counsel could have
 

pleaded or argued in the written submissions to clarify
 

plaintiff’s theory for the majority.
 

Perhaps because the written submissions are adequate to
 

establish plaintiff’s claim, the majority attempts to support
 

its narrow interpretation by shifting the focus to counsel’s
 

comments at oral argument. Ante at 20 n 17. Justice Markman
 

queried plaintiff’s counsel, asking him whether he agreed with
 

defense counsel that “all of [plaintiff’s] eggs in this case
 

are in the sexual harassment basket and that sexual
 

11 Plaintiff’s Brief in Opposition to Defendant’s Third


Motion for Summary Disposition, filed June 17, 1998 in the


Ingham Circuit Court, pp 4-7; Plaintiff-Appellant’s


Application for Leave to Appeal, filed June 29, 1998, with the


Court of Appeals, pp 7-10; Plaintiff-Appellant’s Brief, filed


December 3, 1999, in the Court of Appeals, pp 10-12;


Appellee’s Brief on Appeal, filed December 4, 2002, in the


Michigan Supreme Court, pp 6-10. 


23
 
discrimination other than sexual harassment hasn’t been
 

pleaded here.” Plaintiff’s counsel, Mr. Boog, responded. 


Mr. Boog: We haven’t been given an
 

opportunity to plead that because we could not


amend our complaint but at the time we did this it


was considered a sexual harassment based on gender


based on federal decisions that came down at that
 

time.
 

Justice Taylor continued this line of questioning.
 

Justice Taylor: Now, that being the case, you


are attempting to come under the sexual harassment,


is that right.
 

Mr. Boog: Yes, but with the understanding
 

that I don’t believe the statutory language


excludes other types of sexual harassment besides


what’s in Section 103 and 104, the definitions that


we’ve talked about.
 

* * * 


Justice Taylor: You’re not trying to suggest


that the activity here fell within the section 103


definition of sex harassment.
 

Mr. Boog: Yes I do your honor.
 

When viewed in context, this exchange clarifies that
 

plaintiff alleged a gender- or sex-harassment claim based on
 

MCL 37.2202(1) and MCL 37.2103(i). As noted above,
 

plaintiff’s counsel consistently relied on Malan, which
 

interpreted MCL 37.2202(1) in light of federal precedent.
 

Counsel’s response to Justice Markman concerning federal
 

precedent clarified plaintiff’s MCL 37.2202(1) gender-based
 

harassment theory, in light of the fact that the circuit court
 

granted defendant’s motion for summary disposition concerning
 

24
 
the sexual-harassment claim, thereby precluding an amendment
 

to the complaint that would have clarified the overtly sexual
 

nature of some of the conduct. 


In addition, before the Court of Appeals issued
 

plaintiff’s judgment, this Court issued Koester, which held
 

that harassment as proscribed by MCL 37.2103(i)(iii) need not
 

be overtly sexual in nature. Not wanting to minimize the
 

value of Koester (and unaware that a majority of this Court
 

intended to overrule it), plaintiff’s counsel clarified that
 

he did, in fact, allege a violation under MCL 37.2103(i)(iii)
 

when asked by Justice Taylor. The clarification, however,
 

does not negate plaintiff’s continued reliance on MCL
 

37.2202(1) or Malan.
 

Nor can the majority rely on plaintiff’s use of “sexual
 

harassment” rather than “gender harassment” to artificially
 

narrow the scope of plaintiff’s claim. Plaintiff’s counsel
 

did allege harassment of a sexual nature, providing specific
 

proof of unwanted sexual communication in the motion for
 

reconsideration submitted to the circuit court.12 Hence, the
 

12See n 2, Brief in Support of Plaintiff’s Motion for


Rehearing and Reconsideration, filed May 5, 1998, in the


Ingham Circuit Court, pp 2-3 and attached documents
 

(“Plaintiff has attached to her motion, the Affidavit of


Patricia Perreault, which confirms that the [d]ecedent


Virginia Rich was subjected to unwelcome sexual conduct and


communication. . . . Plaintiff also has attached several
 

documents that show that [d]ecedent Rich had filed a complaint


(continued...)
 

25
 
reference to MCL 37.2103(i)(iii) was not made simply as an
 

attempt to equate gender-based conduct with conduct of a
 

sexual nature—although the concepts are, at times, used
 

interchangeably by the bench and bar. Rather, plaintiff’s
 

counsel employed the term that best described the behavior to
 

which plaintiff was subjected, while also drawing upon the
 

protections afforded by MCL 37.2202(1) and Malan, supra, in
 

support of a hostile-environment claim not purely sexual in
 

nature.
 

In response, the majority might claim a narrow reading of
 

plaintiff’s briefs is required because plaintiff did not
 

specifically establish that “severe and pervasive harassment”
 

could constitute “discrimination.” Assuming this is an
 

accurate reflection of the majority’s position, the Court
 

apparently does not find it self-evident that repeated
 

exposure to derisive insults could constitute discrimination
 

—even if unaccompanied by a “tangible employment action.”
 

Hence, with the issuance of this opinion, no longer will a
 

victim of repeated racist, sexist, or otherwise offensive
 

conduct be permitted to bring a claim against a remiss
 

employer unless the victim has also been the target of a
 

12(...continued)


with her employer for sexual harassment as well as contacted


several different attorneys regarding allegations of sexual


harassment.”). 


26
 
tangible employment action or behavior of a sexual nature. 


In sum, the majority unfairly neglects plaintiff’s
 

arguments and attempts to ignore the difficult and inescapable
 

issue presented by this case, i.e., whether hostile-workenvironment actions may be alleged on the basis of nonsexual
 

conduct.
 

One wonders what the majority gains by adhering to an
 

artificially constrained reading of plaintiff’s theory of the
 

case. If done in an attempt to respect its role as a mere
 

interpreter of legislative intent, its decision today has the
 

opposite result, ignoring the text-based evidence that our
 

Civil Rights Act was intended to provide—at a minimum—those
 

protections afforded by federal law, in favor of a stilted
 

interpretation arguably motivated by policy considerations. 


Application
 

As acknowledged by the majority, plaintiff alleged that
 

her decedent suffered a hostile work environment because of
 

her status as a woman. She maintained that the decedent was
 

subjected to severe and pervasive conduct because of her
 

gender. The decedent’s employer purportedly did not resolve
 

the issues or adequately respond to her complaints. These
 

allegations of harassment, motivated by sex-based animus, are
 

sufficient to withstand a motion for summary disposition. 


Conclusion
 

27
 
Because the text of MCL 37.2202(1) indicates our
 

Legislature’s intent to track the scope of protections
 

provided by federal law, and because federal law recognizes
 

hostile-work-environment claims on any ground articulated in
 

42 USC 2000e-2, Meritor, supra, it is proper to conclude that
 

Michigan employees share the right to assert hostile-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
 

28