*611 ON REMAND
This opinion addresses whether certain comments that formed the basis for a jury verdict of workplace sexual harassment constitute protected speech under the United States and Michigan Constitutions and whether the imposition of liability for the comments under the Civil Rights Act, MCL 37.2101 et seq., raises concerns of vagueness and overbreadth. We conclude that the comments at issue do not constitute protected speech and that the imposition of liability does not raise concerns of vagueness and overbreadth. We therefore uphold the finding of sexual harassment.
1. facts and procedural history
Plaintiff, who was a fingerprint technician for the Detroit Police Department, claimed that two male coworkers on the midnight shift, defendants Terrence Hill and Darryl Hopson,
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sexually harassed her and that her supervisors did not take appropriate remedial actions after she reported the harassment. Plaintiff sued for sexual harassment, retaliation, defamation, and tortious interference with a business relationship, and the jury found for plaintiff on all four claims. Defendants appealed as of right to this Court from
*612
the judgment. We
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upheld the jury’s verdict with regard to sexual harassment and retaliation, reversed the verdict with regard to the two remaining claims, and remanded the matter for a new trial regarding damages. Subsequently, defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the case to this Court and asked us to consider whether the remarks that formed the basis for the sexual harassment verdict constitute protected speech under the United States and Michigan Constitutions and whether the liability imposed raises concerns of vagueness and over-breadth.
Hill and Hopson made the following comments, among others, while plaintiff performed her job: 3
“[D]on’t lie on me bitch.”
“[She’s a] fucking [b]itch . . . .”
“[B]itch bring [your] ass back . . . .”
“[Your] problem [is you] don’t have a man. You don’t have a man that fucks your ass every night. One good time you would be all right. That’s why me and Darryl hated working around a bunch of bitches.”
“[T]hese fucking females up in here will drive you out of your goddamn mind. That’s what you can’t let them do.”
“You got to understand that these females in Ident[ 4 ] are unhappy women who don’t have men in their lives. For a woman who don’t have a man to be friends with another *613 woman who don’t have a man and getting advice from each other don’t make any sense [.] What kind of shit is that? These women don’t have nothing else in their lives.”
“[I]f she had a man she wouldn’t care if she is called a bitch or not. Man, if somebody messed with my job knowing I got a wife and two kids, I’ll stump them. I’ll follow her ass out to her car and stump the shit out of the bitch.”
“[I]f you catch her ass out there . . . and stump the living shit out of her fucking ass . . . [n]obody will see you and I’ll drive pas[t] like I didn't see anything. If you don’t wanna do it I got some partners from my old neighborhood who could do it for you.”
“[She’s a] male hating female.”
HiU and Hopson also said that plaintiff was abnormal for being over thirty years old and without a man. Moreover, plaintiff testified that she had received irritating, romantic notes from Hopson throughout her years at her job and that Hill sometimes blew in her ear and asked her why she covered her body.
After plaintiff reported these comments and threats, a meeting took place to discuss various workplace issues. At this meeting, defendant Dereck Hicks, one of the fingerprint technician supervisors, stated that women are apt to “cry sexual harassment” because of premenstrual syndrome. Hicks also warned that “[a]nything a man says to a woman he can end up in court.” Defendants admitted that as a result of plaintiffs sexual harassment claim, they transferred her to the day shift. Plaintiff testified that this transfer caused her hardship with child care and a pay reduction.
H. NATURE OF THE CASE
Our Supreme Court raised the constitutional issue on remand sua sponte and asked us to address *614 whether the statements in question constitute protected speech and whether the liability imposed raises concerns of vagueness and overbreadth. The Court framed the issue as
whether the remarks that supported the “hostile environment” sexual harassment claims cannot form the basis for liability because they are protected speech under US Const, Am I, and Const 1963, art 1, § 5, and because basing a finding of liability on such remarks would raise vagueness and overbreadth concerns under the same constitutional provisions.[ 5 ]
m. LEGAL DISCUSSION
A. FORFEITURE OF THE ISSUE
We decline to reverse our decision in favor, of plaintiff for two reasons. First, no defendant should get the benefit of this review because no defendant raised the issue of a possible constitutional violation below.
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As noted in
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
This Court has repeatedly declined to consider arguments not presented at a lower level, including those relating to *615 constitutional claims. In re Forfeiture of Certain Personal Property,441 Mich 77 , 84;490 NW2d 322 (1992); Butcher v Treasury Dep’t,425 Mich 262 , 276;389 NW2d 412 (1986); Dagenhardt v Special Machine & Engineering, Inc,418 Mich 520 ;345 NW2d 164 (1984); Ohio Dep’t of Taxation v Kleitch Bros, Inc,357 Mich 504 , 516;98 NW2d 636 (1959). We have only deviated from that rule in the face of exceptional circumstances. Perin v Peuler,373 Mich 531 , 534;130 NW2d 4 (1964) [, overruled on other grounds in McDougall v Schanz,461 Mich 15 ;597 NW2d 148 (1999)] (issue resolution was necessary to quell confusion generated by the Court’s earlier opinions); People v Snow,386 Mich 586 , 591;194 NW2d 314 (1972) (addressed the issue to prevent a miscarriage of justice). There exist no exigent circumstances in this case that require our review of the board’s constitutional argument. [Booth, supra at 234, n 23.]
See also
People v Viano,
Because of the blatant and highly offensive harassment to which plaintiff was subjected, and because Michigan’s sexual harassment law is well defined and unambiguous, we see no exigent circumstances, particularly in this case, that require our review of the constitutional issue raised by the Supreme Court. Booth, supra at 234, n 23. In fact, this case presents a much stronger case than Booth for declining to address the constitutional issue, because in Booth, a party had at least raised the issue on appeal. Id. Here, no party raised the constitutional issue either below or on appeal. Moreover, no errors with regard to the *616 trial court’s rulings or the jury’s findings concerning sexual harassment occurred below in this case, and therefore there is nothing for us to correct. Up & Out of Poverty, supra at 167-168. While we respect our Supreme Court’s authority to raise the issue on remand sua sponte, we believe that invoking this constitutional issue to benefit a party who failed to raise the issue would be entirely inappropriate.
B. CONSTITUTIONAL QUESTIONS
Second, and more importantly, we find that the comments at issue here do not constitute protected speech under the United States and Michigan Constitutions and that the imposition of liability for the comments does not raise valid concerns of vagueness and overbreadth. We note that our review of constitutional questions such as these is de novo. See
Armstrong v Ypsilanti Charter Twp,
i. FREE SPEECH ANALYSIS
Sexual harassment claims of the hostile work environment type are based on certain provisions of the Civil Rights Act.
Radtke v Everett,
Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing.
(ivi) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [Emphasis added.]
In Radtke, supra at 382-383, our Supreme Court relied on the provisions of the Civil Rights Act to fashion five necessary elements for establishing a prima facie case of sexual harassment based on a hostile work environment. These elements are:
(1) the employee belonged to a protected group;
*618 (2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior. [Id.]
As noted in our prior opinion, plaintiff satisfied these elements. Because the prior opinion was not published, we restate it here in relevant part:
Defendants’ arguments are directed toward elements 2, 3, 4, and 5.
To establish elements 2 and 3, plaintiff had to show she was subject to unwanted sexual communication because of her gender. Id. at 383. Defendants contend that the comments allegedly directed toward plaintiff by defendants Terr[e]nce Hill and Darryl Hopson had nothing to do with sex or with her gender as a female but were simply the result of a disagreement among coworkers. However, Hill and Hopson’s comments, as testified to by plaintiff and her coworker Elaine Davis, were of a sexual nature and did occur, at least in part, as a result of plaintiff’s gender.[ 7 ] Particularly, Hill and Hopson referred to plaintiff as a “b — h” *619 and a “f-g female” and indicated that plaintiff needed to “get her a— f — d by a man every night.” They further indicated that plaintiff was abnormal for being over thirty years old and without a man. Thereafter, at a meeting held to discuss various issues about the workplace, one of the fingerprint technician supervisors, defendant Dereck Hicks, indicated in plaintiff’s presence that women will “cry sexual harassment” because of premenstrual syndrome. This evidence showed that plaintiff was indeed subjected to abuse of a sexual nature because of her gender as a female. While some witnesses denied that Hill, Hopson, and Hicks made the comments at issue, the evidence was nearly balanced such that the sexual harassment verdict was not against the great weight of the evidence.
The evidence also supported the jury’s finding with regard to element 4. As stated in Radtke, supra at 394-395, even a single incident of sexual harassment, if extreme, will support a hostile work environment sexual harassment claim. Here, there was more than a single incident. In addition to the initial harassing conduct that occurred on November 14th and 15th, 1994, plaintiff testified that she had received numerous, irritating, romantic notes from Hopson over the years and that Hill sometimes blew in her ear and asked why she covered her body. Keeping in mind that plaintiff worked within a small group of individuals and could not avoid seeing either Hill or Hopson if she continued working on the midnight shift, we conclude that a reasonable person, in the totality of the circumstances, would have felt extremely disrupted by the comments and actions directed at plaintiff. See Radtke, supra at 394 (indicating that whether a hostile work environment existed is determined by the “reasonable person” standard). The jury’s finding regarding element 4 was not against the great weight of the evidence.
Nor was the jury’s finding regarding element 5 against the great weight of the evidence. As stated in Radtke, supra at 396, to establish respondeat superior a plaintiff must show that her employer, after receiving notice of alleged sexual harassment, failed to adequately investigate the claim and take prompt and appropriate remedial action. Here, plaintiff *620 and others testified that plaintiff told one of her supervisors, Nola Hitchens, that she had been sexually harassed and that in response, the city (1) counseled Hill for using vulgar language, (2) entered a demerit on Hill and Hopson’s annual evaluations for an “altercation with a coworker;” (3) reissued a sexual harassment policy; and (4) held a meeting at which claims of sexual harassment were belittled. The jury, based on this evidence, could reasonably have concluded that the city’s efforts failed to adequately address plaintiff’s claim. Indeed, there was no evidence that anyone spoke to Hill or Hopson about their use of seocually abusive language, they received no suspension for it, the meeting purporting to address it only furthered the harassment, and plaintiff instead of Hill and Hopson, was subsequently removed from the midnight shift. The jury’s verdict with respect to plaintiff’s sexual harassment claim was not against the great weight of the evidence. [Burns v Detroit, unpublished opinion per curiam of the Court of Appeals, issued October 31, 2000 (Docket No. 213029) (emphasis in original).]
Despite plaintiff’s clear establishment of a sexual harassment case under applicable Michigan law, the Supreme Court asks us to determine whether the comments at issue cannot support a finding of liability because they constitute protected speech under Const 1963, art 1, § 5, and US Const, Am I.
The Michigan Constitution states that “[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.” Const 1963, art 1, § 5. The First Amendment of the United States Constitution similarly states that “Congress shall make no law . . . abridging the freedom of speech . . . .” US Const, Am I. The rights to free speech under the Michigan and federal constitutions *621 axe coterminous. Up & Out of Poverty, supra at 168. Thus, federal authority construing the First Amendment may be used in construing the Michigan Constitution’s free speech guarantee. See id. at 168-169.
In
Chaplinsky v New Hampshire,
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.[ 8 ] It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Cantwell v Connecticut,310 US 296 , 309-310;60 S Ct 900 , 906;84 L Ed 1213 [(1940)]. [Chaplinsky, supra at 571-572.]
Clearly, the comments at issue here were “no essential part of any exposition of ideas . ...” Id. at *622 572. Indeed, the comments were more akin to “fighting” words and essentially constituted a vulgar, vituperative, ad hominem attack against an individual. Hill and Hopson continually referred to plaintiff as a “bitch,” called her a “fucking female,” ridiculed her lack of a man, and, importantly, threatened her with personal harm. These “epithets” and this “personal abuse,” directed toward a particular individual, were not “in any proper sense communication of information or opinion safeguarded by the Constitution.” Id.; Cantwell, supra at 310. Accordingly, the language at issue simply does not reach the level of constitutionally protected speech under the doctrine from Chaplinsky, and the sexual harassment judgment did not violate Const 1963, art 1, § 5, or US Const, Am I. While defendants are free to express their views in the workplace, the constitution does not shield them from liability for verbally attacking a co-worker by use of ad hominem, sexually explicit vulgarities.
Second, the United States Supreme Court has noted, albeit in dicta, that the proscription of sexually harassing words by way of sexual discrimination laws is permissible, because the laws are essentially directed against conduct. See
RAV v St Paul, Minnesota,
Another valid basis for according differential treatment to even a content-defined subclass of prescribable speech is that the subclass happens to be associated with particular “secondary effects” of the speech, so that the regulation is “ ‘justified, without reference to the content of the . . . speech,’ ” Renton v Playtime Theatres, Inc,475 US 41 , 48;106 S Ct 925 ;89 L Ed 2d 29 (1986), (quoting, with emphasis, Virginia State Bd of Pharmacy [v Virginia Citizens Con *623 sumer Council, Inc,425 US 748 , 771;96 S Ct 1817 ;48 L Ed 2d 346 (1976)]). ... A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. . . . Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VITs general prohibition against sexual discrimination in employment practices. . . . Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [RAV, supra at 389-390 (emphasis added).]
The Michigan Civil Bights Act, like Title VII, prohibits sexual discrimination in employment practices. It targets, among other things, the creation of an “intimidating, hostile, or offensive employment. . . environment.” See MCL 37.2103(i)(m). The act is essentially directed toward discriminatory conduct, and oral remarks such as those at issue here are “swept up incidentally within the reach of a statute directed at conduct rather than speech.” RAV, supra at 389. Accordingly, the remarks are proscribable under the rationale of RAV.
For these reasons, we hold that no violation of Const 1963, art 1, § 5, or US Const, Am I, occurred in this case. 9
*625 ii. VAGUENESS AND OVERBREADTH
The Supreme Court’s remand order also directed us to consider whether “basing a finding of liability on such remarks would raise vagueness and overbreadth concerns under [Const 1963, art 1, § 5, and US Const, Am I].” As noted in
People v Howell,
A statute may be challenged for vagueness on three grounds:
1. It does not provide fair notice of the conduct proscribed.
2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
3. Its coverage is overbroad and impinges on First Amendment freedoms.
See also
Woll v Attorney Gen,
Moreover, “[vjagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case.”
People v Lino,
With regard to the third ground — overbreadth—the Court in Woll, supra at 534, stated:
A successful overbreadth challenge thus permits a person charged with speech or conduct violative of a statute to escape punishment based on the First Amendment rights of others impinged upon by the statute although under a narrower, properly drawn statute, his speech or conduct could be punished because it is not so protected.
In other words, “[l]itigants . . . are permitted to challenged a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”
Broadrick v Oklahoma,
In
Plymouth Charter Twp v Hancock,
As noted in Plymouth Twp, supra at 203, the use of a “reasonable person” standard limits the scope of a law and helps to avoid the danger of substantial over-breadth. We conclude that “a reasonable person would understand” that the Civil Rights Act does not prohibit constitutionally protected speech, such as the expression in general of impopular ideas, but instead prohibits communication of a sexual nature, like that at issue here, that substantially interferes with a person’s work or creates an intimidating, hostile, or offensive work environment. See, generally, id. In our opinion, the difference between these two types of speech is readily ascertainable.
Furthermore, we note that statutes are presumed to be constitutional.
Caterpillar, Inc v Dep’t of Trea
*628
sury,
We once again affirm the jury’s verdict with regard to the sexual harassment claim.
Notes
We note that the names of the individual defendants have been spelled various ways in the briefs, transcripts, and lower court documents. This opinion employs the spelling used in the caption of the original unpublished opinion issued in this case. See Burns v Detroit, unpublished opinion per curiam of the Court of Appeals, issued October 31, 2000 (Docket No. 213029).
The original panel consisted of Presiding Judge Meter and Judges Gribbs and Griffin.
We note that we have deviated from this Court’s usual practice of editing obscenities in opinions because the specific subject matter of the instant remand is the abusive remarks themselves and whether they constitute protected speech. Accordingly, viewing the remarks in their entirety, although unpleasant, is critical to an understanding of this case.
This abbreviation refers to the Identification Bureau of the Detroit Police Department.
We note that Justices Weaver, Cavanagh, and Kelly dissented from this order of remand, noting that verbal conduct constituting sexual discrimination is specifically actionable under Michigan law.
It is not surprising that this issue was not raised below or on appeal, given the lack of case law supporting the existence of a free speech violation in circumstances analogous to those present here. Indeed, one of defendants’ attorneys conceded during oral arguments on remand that she could not locate a single case in support of her position.
Defendants argue that by making this statement in our prior opinion, we acknowledged that not all the statements were based on plaintiffs gender. Defendants contend that because some of the statements were not based on gender, the entire liability finding must be vacated under
NAACP v Claiborne Hardware Co,
We note that this definition of “fighting” words has been somewhat modified. See
UWM Post, Inc v Univ of Wisconsin System Bd of Regents,
Although not strictly necessary to our decision, we note that the words at issue could potentially be considered as directed toward a captive audience. As noted in
Hill v Colorado,
Plaintiff may have a constitutional right to use words such as “pussy,” “cunt,” and “fuck,” but he does not have a constitutional right to use them in a classroom setting where they are not germane to the subject matter, in contravention of the College’s sexual harassment policy. . . . This is particularly so when one considers the unique context in which the speech is conveyed — a classroom where a college professor is speaking to a captive audience of students . . . who cannot “effectively avoid further bombardment of their sensibilities simply by averting their [ears].” Hill [, supra at 716].
Here, plaintiff was at her place of employment, attempting to do her job, when Hill and Hopson used the term “bitch” and made derisive comments about her gender and her sex life. She could no more avoid the disturbing comments than could the students in Bonnell, and the comments most certainly were not germane to the subject matter of the workplace, i.e., fingerprinting. See Bonnell, supra at 820-821.
Moreover, as noted in
McLeod v Providence Christian Sch,
Moreover, we note that unlike the statute involved in
People v Boomer,
like our anti-stalking law, MCL 750.411h and 750.411i, the prohibitions against sexual harassment contained in our civil rights statute do not unconstitutionally infringe on free speech rights. See
Staley v Jones,