Radtke v. Everett

RADTKE v EVERETT (Calendar 4). 12, Argued January Decided No. No. Docket 92582. 2, June 1993. brought in Traverse Tamara J. Radtke an action the Grand Everett, D.V.M., individually, against Circuit B. Court Stuart P.C., Dog Hospital, alleging and Clarke-Everett and Cat creating by a hostile work environment violation Rights Act, seq.; et MSA of the Civil MCL 37.2101 3.548(101) sex, discharge seq., et constructive on the basis Brown, J., court, battery. and The R. assault and William defendants, disposition finding granted summary upon single because the hostile environment claim based law, harassment, matter incident of sexual as a did severity persistence recovery, permit rise to the level and discharge it was dismissed the constructive count because environment, dependent upon finding a hostile work and found remedy Disability provision that the of the exclusive Workers’ Act, 418.131; 17.237(131), Compensation MCL MSA barred battery allege assault claim because of the failure to and Neff, P.J., Appeals, intent to harm. The Court of and Maher JJ., rights claim, finding Hood, and reversed the civil single under the reasonable woman standard incident could finding sufficiently support be severe to of a hostile work environment, that, case, totality in this concluded trial, permit circumstances was sufficient to reversed the dis- claim, discharge missal reversed the of the constructive battery assault and claim because the defendant was named individually perpetrator, making inapplicable as the the wdca 121611). (Docket appeal. No. defendants opinion joined Riley, In an Justice Chief Justice References 2d, seq; Compensation Am Jur Civil 154 et Workers’ §§ 79. §§ against compensation precluding employee’s law Workers’ as suit person’s 926. for third criminal attack. ALR4th hostile, offensive, intimidating, so When work environment to Rights in violation VII of constitute sexual harassment of Title (42 seq). Act of as amended USCS sec. 2000e et ALR Fed 252. Radtke v Everett Cavanagh, Levin, Brickley, Boyle, and Justices Mallett, Supreme Court held: objective An reasonableness standard must be used deter- mining whether a hostile work environment exists under the Rights Civil Act. A hostile work environment claim is action- only that, able when the work environment is so tainted in the circumstances, totality person of the a reasonable the plaintiff’s position perceived would have the conduct at issue as substantially interfering employment having pur- with or pose creating intimidating, hostile, or effect of an or offensive employment Although single environment. a incident of sexual generally is insufficient to constitute a hostile work environment, may perpe- be sufficient if severe harassment employer closely working trated an in a knit environment. Appeals improperly The Court of reached the issue whether the remedy provision Disability Compen- exclusive of the Workers’ battery sation Act bars an alternative claim of assault and allege when the claim does not that the defendant intended to plaintiff. harm the Rights prejudices 1. The Act is aimed at the against persons membership and biases borne because of classes, certain and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, employer and biases. An may against respect not discriminate an individual with to employment, compensation, term, condition, privilege or a or of employment act, because of sex. Under the sexual discrimina- broadly tion is defined to include sexual harassment. prima 2. To establish a facie case of a hostile work environ- ment, employee belonged protected group, an must have to a subjected must have been to communication or conduct on the sex, subjected basis of and must have been to unwelcome sexual conduct or communication that was intended to or in fact did substantially employee’s employment interfere with the or intimidating, hostile, environment, created an or offensive work employer theory respondeat and the must be liable under a of superior. Whether a hostile work environment existed is to be person, totality determined whether a reasonable in the of circumstances, perceived would have the conduct at issue substantially interfering employment having with or purpose creating hostile, intimidating, or effect of or offen- employment sive environment. imposes liability 3. The Civil Act whenever sexual environment, single harassment creates a hostile work and a may However, plaintiff incident create such an environment. a usually required prove employer to will be that the failed to 442 Mich 368 problem adequate rectify after notice and that a continuous a repetition episode periodic problem or a of an was existed likely to occur. case, plaintiff alleged prima of a 4. a facie case In this protected of environment. is a member a class hostile work She sex), against (persons on the basis of was sub- discriminated sex, subjected jected on to to harassment the basis was person have sexual conduct that a reasonable would unwelcome addition, perceived environment. In created hostile work perpetrator, single was the incident because the satisfy theory respondeat superior and to was sufficient to permit jury sufficient to determine whether conduct was a hostile created work environment. have appli- appeal the 5. Because the did not trial court’s Appeals, to her in the Court cation of the wdca claim requested permission to her com- because she never amend court, plaint trial the issue whether the exclusive in the remedy provision of the bars an alternative claim wdca battery allege plaintiff fails to that the assault and where the upon injury defendant intended inflict an preserved appeal. part. part in Affirmed in and reversed part, Griffin, dissenting in stated the cause of Justice contemplated of sex under action for discrimination because 103(h)(iii) Rights requires Act more than subsection the Civil single the incident in-this case. For sexual harass- brief actionable, sufficiently perva- ment it or to be must be severe employment sive the and create an to alter conditions advance, environment. An isolated sexual without abusive work more, satisfy requirement. employer does not status closely working defendant knit environ- individual or particular ment in this case did not make the conduct more pervasive. severe or separate Although with em- claim of substantial interference 103(h)(iii), ployment might have been under asserted subsection work, plaintiff resigned than to because the rather return premised only theory be on a constructive such a claim could discharge, severely plaintiff’s undercut an assertion correctly deposition testimony. The that the trial court ruled acts to the not rise the level of attributed defendant did to persistence permit recovery severity under the and that would act. 346; part App and NW2d 660 affirmed part. reversed in Radtke v Everett Rights — — Hostile Work Environ- 1. Civil Sexual Harassment Single — — Standard Incident. ment Reasonableness objective standard must be used determin- An reasonableness ing under the Civil whether a hostile work environment exists Act; only Rights environment claim is actionable a hostile work tainted, totality of the environment is so in the when work circumstances, plaintiff’s posi- person in the that a reasonable substantially perceived the conduct at issue as tion would have interfering employment having purpose or effect of with or hostile, employment creating intimidating, envi- an offensive ronment; although single incident of sexual harassment generally environ- is insufficient to constitute a hostile work ment, perpetrated may if severe harassment bé sufficient (MCL closely working in a knit environment seq.). seq.; et 37.2101 et MSA 3.548[101] Battery Compensation — — Exclusive 2. Workers’ Assault and Remedy Allege — Failure Intent to Harm. remedy provision Disability The exclusive of the Workers’ Com- battery pensation an alternative claim of assault and Act bars allege when the claim does not that the defendant intended (MCL 418.131; 17.237[131]). MSA harm Haughey, Roegge (by Smith, Mark D. Rice & Williams) plaintiff. for the Dykema, (by Lloyd Gossett Seth M. and Niemela) Cunningham, Nancy Davison, L. Davison) Rogers Beeby, (by & Alward William M. for the defendants.

Amici Curiae: Kelley, Attorney General, L.

Frank J. Thomas Casey, General, Willis, Jr., L. Solicitor Robert Attorneys Rubin, General, Dianne Assistant and Michi- Commission gan Department Rights. of Civil Dwight (by

Clark, H. Vin- Klein & Beaumont Silberberg, Henry, cent, J. Rachelle G. Walker Bordman) Michigan Manufactur- and Patricia ers Association. for Opinion of the Court (by M. Miller, Canñeld, Stone Diane Paddock & Willems) Soubly H. for Soci- and John American Employers, ety of Vehicle Manufacturers Motor Association, of Com- Greater Detroit Chamber Michigan merce, of Commerce. Chamber Chiamp (by M. Associates, & P.C. Charlene Snow), Lawyers of Michi- for Women Association gan. Suellyn

Julie Field Scarnecchia Kunce University and the Law Clinic Women Michigan. Lawyers Association Women Stark) (by J. for Michi- Stark & Gordon Sheldon gan Lawyers Trial Association. prima a J. At issue are the elements of Riley, case a hostile work environment under

facie Michigan seq.; Act, MCL 37.2101 et 3.548(101) seq. hostile MSA et We hold that a environment claim is actionable when work that, is so in the total work environment tainted person ity circumstances, a reasonable perceived plaintiff’s position have would interfering substantially with conduct at issue employment creating having purpose effect of or or intimidating, hostile, em an offensive Additionally, ployment although we hold environment. single is a incident of sexual harassment generally work insufficient to constitute hostile single may if environment, incident be sufficient perpetrated by is severe working closely also in a knit environment.1 We discharged by constructively Plaintiff also she was finding is a of sexual harassment defendants’ conduct. Because necessary predicate claim, to such a we need in the instant case complaint this time. must first count n of her Plaintiff consider establish statutory requisite a claim of harassment before aggravating circumstances additional considered. 373 Radtke v Everett Opinion the Court of Appeals improperly reached of that the Court hold remedy provision the exclusive the whether issue Compensation Disability Act, MCL the of Workers’ 17.237(131), an alternative bars 418.131; MSA battery does the claim and when of assault claim not allege to harm intended the defendant plaintiff. the opinion of the Court

Thus, of affirm we prima Appeals facie a has environment, on albeit work case of a hostile opinion grounds, reverse and we different Appeals the trial court’s reinstate and the Court regarding disposition granting summary order battery claim. assault

i harassment, dis- constructive Plaintiff’s sexual battery charge, sum- claims were assault and pursuant marily the trial court dismissed (10). 2.116(C)(8) Appeals Court of MCR begin analysis Accordingly, with our we reversed. applicable standards of the an examination disposition. granting summary

A 2.116(C)(8) disposition summary permits MCR "opposing party to state a has failed when granted.” MCR can be on which relief claim op- 2.116(C)(8), therefore, determines whether allege prima pleadings party’s posing facie case. a 700, 707; 433 Randlett, 431 Mich v Marrocco (1988). not act as Hence, the court "does 68 NW2d well-pleaded "accepts true all factfinder,” but Lilly 311, 324; Co, Mich Eli & facts.” Abel v (1984). allegations Only fail if the 343 NW2d disposition summary legal claim will to state op Opinion the Court 2.116(C)(8) pursuant Macenas v be valid. to MCR Village Michiana, 387; NW2d (1989). 2.116(C)(8) legal sufficiency tests MCR While 2.116(0(10) pleadings, tests the factual MCR plaintiff’s underlying Velmer claim. basis Baraga 385, 389-390; 424 Schools, 430 Mich Area 2.116(0(10) (1988). permits sum 770 MCR NW2d mary "[e]xcept

disposition as to the amount when any genuine damages, issue as to there is no of material moving party to fact, is entitled and the partial judgment judgment of law.”2 as a matter reviewing therefore, depositions, motion, must such a A court pleadings, affidavits, ad consider missions, any in favor of other evidence and grant opposing party motion, the benefit and opposing party. any doubt to reasonable 365, 370; 446 Steel, 433 Mich v McLouth Stevens (1989).3Accordingly, examines this Court NW2d and light in the in the instant case recites the facts plaintiff. to most favorable

B employed as an Tamara Radtke was Plaintiff unregistered veterinary for defendant technician begin Dog Hospital, P.C., and Cat Clarke-Everett hospital ning January, is owned 1984. equal and Dr. Stuart Everett shares defendant words, . . . that 'it the "court must be satisfied In other supported impossible trial because of or defense to be for the claim ” deficiency v McLouth overcome.’ Stevens some Steel, which cannot be (1989), 365, 370; quoting Rizzo v 433 Mich NW2d (1973). Kretschmer, 363, 372; 389 Mich 207 NW2d require of what has our abandonment The alternative would "truth-testing process of cross-examination” called the been by judges encourage invasion unwarranted and would Stahlin, 628, 651; jury’s province. exclusive [Durant (1965), quoting United Market- United States v 135 NW2d 392 (CA 8, 1961).] Ass’n, ing 853-854 291 F2d Radtke v Everett Opinion op the Court May, 1988, her duties As of Dr. James Clarke.4 assisting supervising staff, the doctors included scheduling, performing during surgery, minor and nearly janitorial each doctor She assisted tasks. [working] "good possessed equally, ship” relation of sexual no incidents There were with each. in issue. before the date Sunday, May 29, commonly occurred, on As working alone with defendant was emergency provide veterinar- weekend to Everett deposition that stated In her ian services. suggested lengthy day work, she after they pro- agreed. Plaintiff Everett take a break. lounge poured hospital’s them ceeded cup on the then relaxed coffee. She each leaning into its corner couch, with her back legs the sofa. her on joined finishing phone calls, Everett a few

After Plaintiff, proceeded her. next to sit her and inappropri- believing Everett’s behavior attempted minute he "the the couch ate, to leave physically Everett, however, restrained down.” sat placing firmly and by her neck his arm around her holding frightened and Plaintiff, both her down. surprised by behavior, what described Everett’s deposition: during her followed times, and, on up three pull my head I tried to to let time, going I he was third realized relaxed, I his arm finally, when go. And then me sprung him, want forward, "You don’t I told and this.” to do grip, escaped forcefully

Although plaintiff his began his rebuffed Plaintiff flatter her. Everett stating, by to do want "You don’t advances newest individually hospital Dr. Everett and named Plaintiff defendants. 442 Mich 368 Opinion of the Court I’m You’re married. I want to do this. this. married.” plaintiff’s don’t caressing responded Everett Again protested, but he sim neck. she attempted ignored pleas. ply Indeed, her he then pushing grabbing and his her her neck to kiss pushed successfully his hers. Plaintiff face towards away, couch, walked across the left the face then stated that she wished room.5 Plaintiff encouraged outside, Everett to accom smoke pany working day public, The her in which he did. incident. was finished without deposed that she further stated when Plaintiff defen- or could not know whether did not know trying her, he to hurt but she stated that dant was acknowledged have or could have.” She "would mistakenly might that he have believed she him he did not condition wished to kiss and that upon employment of her the terms or conditions acceptance of his advances. evening plaintiff discussed the incident That resigna husband, her and she tendered her with tion, along requests,6 to Everett’s with a list of morning.7 following day, Dr. the next office plaintiff cursorily discussed the inci Clarke and counseling began psychological dent. Plaintiff also day. Although plaintiff physical no suffered pain injuries, alleges emotional stem she severe ming from the incident.8 approximately alleges physically restrained one and She she was minutes, encounter on the couch lasted

one-half while the total approximately five minutes. 6Accompanying resignation requests payment the letter of were time, unemployment compensation, and sick of earned vacation hospital to zero. Plaintiff the reduction of her hospital approximately account owed $1,000. requests. Defendants met each of her again scheduled to work alone with Everett Plaintiff Day. following day it was Memorial because sleeping, periodically alleges difficulty and is Plaintiff that she has by "[m]ajor depression.” affected Radtke v Everett Opinion op the Court

C December, 1988, In filed a four-count against hospital civil suit Everett and the Traverse Plaintiff Grand Circuit Court. (1) sexually that she was harassed in violation of (2) Rights constructively discharged Act, the Civil (3) sex, on the basis victim assault and battery,9 personnel denied access to her Right Employee files in violation of the to Know 17.62(1) seq.; seq. Act, MCL 423.501 et et MSA The plaintiff’s crux of Everett’s case is that actions they constituted sexual harassment because ated a hostile work environment cre thereby forcing resignation. her Employee Right

The to Know Act count was by stipulation. August, 1989, In dismissed court the trial granted regarding summary disposition 2.116(C)(8) remaining pursuant to MCR counts (10). reviewing plaintiff’s complaint After and de position, the court ruled that she. had failed to state a violation of the Civil her hostile environment Act because upon a a claim was based single harassment, which, incident as severity law, matter of did "not rise to the level of persistence permit recovery which would Likewise, . . . .”10 the court the con dismissed discharge dependent structive count because was upon finding hostile work environment. remedy provi court also ruled that the exclusive Disability Compensation Act, sion of the Workers’ MCL 17.237(131), plaintiff’s 418.131; MSA barred 9, 1989, pretrial In statement of March states count her Moreover, hi "intentional infliction of emotional distress.” when acknowledged injury. deposed, plaintiff physical no Everett, County Trav- Radtke v Circuit Court for the of Grand erse, Summary Motion for Partial Decision and Order on Defendant’s 11,1989, Disposition, August p 2. 11Id. 442 Mich Opinion op the Court battery failed to because she of assault and

claim allege intended to harm her.12 that Everett Appeals all counts. reversed on

The Court of sponte, rejected prior Court, its utilization sua The person standard to determine a reasonable exists, and environment whether a hostile work ruled: claim an actionable female states [A] by hostile-environ- discrimination caused

for sex state Civil under ment sexual harassment alleges conduct of a sexual Rights Act where she consider to woman would nature that a reasonable pervasive to alter sufficiently be severe or substantially inter- employment by conditions of creating an fering employment her with hostile, intimidating, employment en- or offensive App 346, 355; 471 NW2d vironment. [189 (1991).] reasonable Court then found that under the "single standard, suffi- incident could be woman sup- ciently under circumstances severe some finding” port environment. Id. of a hostile work instant concluded that at 356. The Court case, totality sufficient of circumstances were permit regarding the issue of a hostile a trial Accordingly, 356-357. Id. at work environment. trial court’s dismissal Court also reversed the discharge at 357. claim. Id. the constructive Furthermore, the dismissal the Court reversed holding battery claim, assault individually, it named Everett because perpetrator. suing her not her but was reasoned, "[t]he The Court Id. at 357-358. wdca inapplicable to this claim and does therefore is recovery.” operate plaintiff’s 358. Id. at to bar 12 Id. 3. Radtke v Everett Opinion of the Court granted by appeal this Court.13

Leave to

D joined by curiae, Defendants, assert before amici (1) person standard the reasonable this Court hostile whether a utilized to determine should be (2) single existed, incident work environment prima of a facie case to establish a insufficient environment, dis- constructive work hostile (4) charge occur, and the wdca bars did not battery. Plaintiff, counts of assault alternative and other amici urge contrary. curiae, Two urge any of reason- curiae the elimination amici urges standard, and at least one ableness adoption of a victim” standard. "reasonable

n prejudices Rights Act "is aimed at 'the The Civil persons against of their because and biases’ borne membership class, and seeks to elimi in a certain demeaning stereo of offensive or nate the effects prejudices, types, A Muer Miller v C biases.” Corp, 363; 362 NW2d omitted). (citations Accordingly, the act declares . . . discriminate "[a]n that against shall respect employment, an individual with privilege compensation, employment, condition, term, or or a . . . . . . .” MCL sex because 3.548(202)(l)(a). 37.2202(l)(a); 37.2202(l)(c); See also MCL MSA 3.548(202)(l)(c). Hence, the es MSA rights suit is discrimination civil sence of a sex people similarly have been treated situated differently Indus sex. C Thorrez because of their App Rights Comm, tries, Inc Civil (1979). equality pursuit In 708; 278 NW2d (1992). 440 Mich 889 Mich Opinion Court broadly workplace, defines sexual the act in the harassment: to include sexual discrimination sexual of sex includes because Discrimination ad- unwelcome sexual means which harassment vances, favors, ver- and other requests for sexual of a communication physical conduct or or bal nature when: (i) or communica- to such conduct Submission explicitly or condition either is made a term tion employment.... implicitly to obtain or (ii) conduct or rejection of such to or Submission used as a factor an individual communication employ- affecting individual’s such in decisions .... ment (iii) has or communication Such conduct interfering with substantially effect of

purpose or creating an ... or employment individual’s an intimidating, hostile, . . . offensive environ 3.548(103)(h).][14] 37.2103(h); MSA ment. [MCL targeted by the Civil harassment was Sexual "pervasive” is both Act because unacceptable personal, entailing or "destructive, Legislative ganizational, costs.” House and societal August Analysis, 15, 1980.15 HB Second Perhaps important, is sexual more issue, Although resolution whether will leave for future not at we regarding provides the creation of a either for a claim the statute indi- interference with an or a substantial work environment hostile employment. vidual’s Analysis Legislative elaborates: psychologically, sexually suffer are harassed Individuals who economically. Organizations which allow such physically, and efficiency, costly job safety worker and suffer reduced activities medical, turnover, psychological and sick leave increased and harassment, pays price this Society since for sexual costs. ghetto job in which of a female results in the creation

behavior large segment or abused force remains transient of the work a in job the market. [Id] Radtke v Everett Opinion of the Court prohibited workplace in the because it violates liberty: civil Sexual harassment should be explicitly defined prohibited and demeaning, degrad- because is a ing, and coercive activity persons directed at on sex, the basis of their often the continuation of which is contingent on the harasser’s economic con- person

trol being over the harassed. It should be outlawed because it rights violates basic human freedom, privacy, integrity personal security. [Id.] At issue in the instant case is subsection 103(h)(iii), commonly referred to as a "hostile work environment” action.16 Title VII of the Rights possesses United States Civil Act analogous Supreme recognized by action, the United States Savings Court in Bank, Meritor FSB v Vinson, 65; 2399; US 106 S Ct 91 L Ed (1986).17 language fact, 2d 49 In of the Michigan language Rights parallels strongly Act

adopted by Equal Employment Opportunity agency Commission, vested by Congress defining VII, to enforce title sex ual discrimination.18 While this Court is not 103(h)(i) (ii) usually The conduct defined subsections quid pro See, quo e.g., referred to as sexual harassment. McCalla Ellis, (1989). 372, 377; App noted, plaintiff 446 NW2d 904 As alleged has not term or that he utilized such that submission to Everett’s advances was "made a employment,” ... condition to obtain nor has she affecting” advances "as a factor decisions her employment. Title VII of the federal Civil Act states that it is "an employment practice unlawful against any conditions, for an ... to discriminate terms, respect compensation, individual with to his privileges employment, or because of such individual’s 2000e-2(a)(l). ... sex ... .” 42 USC guidelines Eeoc define sexual harassment as: advances, favors, requests Unwelcome sexual for sexual physical

other verbal or (1) conduct of a sexual . . . nature when explicitly submission to such conduct is made either implicitly employment, a term or condition of an individual’s 442 Mich Opinion Court precedent guidelines compelled or to federal follow may, interpreting Michigan law, "as in this Court past cases, have done in the discrimination we guidance reaching precedent to federal for turn Goodyear Rubber decision.” Sumner v Tire & our Co, (1986). 505, 525; 398 NW2d An of the examination necessary that there are five elements Act reveals to establish prima work facie case of a hostile environment:

(1) belonged protected employee to group;

(2) subjected employee to communi- was sex; or conduct on the basis of cation (3) subjected employee to unwel- communication; come sexual conduct or (4) the sexual conduct or com unwelcome did munication was intended substantially or in fact employee’s interfere with the intimidating, employment hos created an or tile, environment;19 or offensive work (2) rejection submission to or of such an individual conduct affecting employment such is used as the individual, basis decisions purpose effect of or such conduct has or perfor- unreasonably interfering with an individuars work creating hostile, intimidating, work mance or environment. an or offensive 1604.11(a).] CFR [29 guidelines, although extensively controlling, These have been See, Vinson, citing e.g., supra federal courts. consulted 1604.11(a). CFR law, hand, prohibits on conduct Federal the other "such [which] purpose unreasonably interfering an has the or effect of with individ- hostile, performance creating intimidating, or ual’s work or offen- added). 1604.11(a)(3) working (emphasis environment.” 29 CFR sive Moreover, federal hold that be courts "[f]or actionable, sufficiently pervasive it must severe or 'to alter the be employment and an abusive work- conditions of create [the victim’s] ” (citations omitted). Hence, Vinson, supra ing at 67 environment.’ required severity harassing showing or of the "the conduct varies conduct.” Ellison seriousness pervasiveness frequency inversely with (CA 1991). Brady, 924 F2d 383 Radtke v Everett Opinion op the Court 37.2103(h), respondeat superior. MCL 3.548(103)(h), 37.2202(l)(a); 3.548(202)(l)(a).20 MSA A prima A facie case of sexual harassment under Rights Michigan begins by showing Act plaintiff that the of a "was member class entitled protection that, under the statute and for the conduct, same ently similar she was treated differ- Co, than a 121 man.” Heath v Alma Plastics (1982). App 137, 141; 328 598 Plaintiff NW2d meets the first element of the action because she is a member of a

protected employee an class—she is object has who been the of unwelcomed sexual employees inherently fact, protected advances. In all are members of a class in hostile work envi- persons may ronment cases because all be discrim- against inated on the basis of sex.

B Plaintiff also meets the second element alleges subjected action because she that she was to harassment on the basis of sex. Defendants argue that the conduct at issue was not nature, but was rather an innocent romantic over plaintiff only Yet, ture. the fact of her need show that "but for

sex, she would not have been the object Dundee, 682 harassment.” Henson v F2d (CA 11, 1982).21 claims, rights inAs most civil retains the burden See, persuasion e.g., at all times. Jenkins v Southeastern Cross, 785, 794; Chapter, (1985) App American Red 369 NW2d 223 claim). (regarding the Civil race Act discrimination (CA Co, Inc, See also Hall v Gus Construction 842 F2d 1988) test, (utilizing noting predicate a "but for” that "the acts Mich Opinion of the Court plaintiff alleges case,

In the instant that Everett attempted forcefully down, caressed, held her underlying implicitly Furthermore, to kiss her. plaintiff’s deposition testimony allegation seeking intimate sex that Everett was unwelcome plaintiff. issue ual conduct with The overtures at certainly inferentially sexually were motivated:22 womanhood, have for her Everett would not but held mance, attempted to ro down and solicit allegations sex, if not from her. Plaintiff’s prima are sufficient to meet the minimum facie showing necessary to establish that the conduct question was based on sex.23

c the Plaintiff also meets the third element of alleges subjected action because she that she was to unwelcome sexual conduct or communication. gravamen VII, of a Not unlike title the Rights Act claim is that sexual harassment the sexual advances were unwelcome. Vin- supra determining son, 68. "The threshold for employee 'that the that conduct is unwelcome is did employee it, not or and the re- solicit incite ” garded the conduct as or offensive.’ undesirable McGregor Inc, Industries, 955 Burns v Electronic (CA 1992), quoting 8, 559, F2d 565 v Gus Hall (CA 1010, 8, Co, Inc, 842 F2d 1014 Construction clearly underlying nature”). claim not be sexual a sexual harassment need would zation: for ment”); (1977). that the It will therefore be a supervisor her Henson, To assuredly precisely accept Barnes sex, supervisor makes sexual overtures supra at 904 she would not have been Everett’s the characterization Everett seeks turn v Costle, did simple not treat allegation that question 183 US ("In matter male into a App to a female typical employees his DC wholly subjected to motivation 90, case in subjective worker, in a similar 96-97; to to avoid. which prove it is obvious "romantic” characteri- F2d 983 that but fashion. a male harass- Radtke v Everett Opinion of the Court 1988). plaintiff alleges case, In instant physically against will, Everett restrained her her attempted well force as her to kiss him. Viewing light testimony in the most favorable plaintiff, provided she has sufficient evidence to meet the unwelcomeness element.

D The crux case instant is whether or unwelcome sexual conduct communication was substantially intended to or in fact did interfere plaintiff’s employment with an intimi- created dating, hostile, or work offensive environment. The essence of a hostile work action environment is supervisors that "one or more or co-workers create atmosphere hostility so with infused toward they members of one sex that alter the conditions employment Lipsett for them.” v Univ of Puerto 1988). (CA Rico, 881, 1, Hence, F2d "a loss tangible job necessary aof benefit since the harassment employment.” King itself affects the terms or conditions of Regents

v Bd of Univ of 1990). (CA System, Wisconsin 898 F2d implic- This is "[t]he so because thus can itly effectively employee’s make the endurance employ- of sexual intimidation a 'condition’ of her Bundy App Jackson, ment.” 641 F2d 934 456; 205 US DC (1981). legal At issue are the stan- determining dards for the existence aof hostile environment. work

1 Amici curiae24 maintain that a whether hostile work environment was created be should deter 24 curiae, Commission, Michigan Rights University Amici Civil of of Clinic, Michigan Employers, Society Women and the Law and American separately argue any all that elimination of reasonable- 442 368 Opinion of the Court plaintiff’s solely by a reactions.

mined reference they words, that when In other contend substantially perceives created conduct has that intimidating, hostile, environ or offensive work an inquiry ment, Amici submit end. curiae should rights actions, whether a similar to other civil that hostile on the contingent is not environment action exists They or victim. reasonableness the actor Michigan Rights Act does that the Civil also note not explicitly mandate a reasonableness standard. supporting Moreover, contentions amici curiae’s vigorously attack a are some commentators who reasonableness standard as a reinforcement society.25 male domination in However, act does not close examination of the per support Rather, we are their contentions. objective standard that an reasonableness suaded is mandated meaning plain statute. interpreting Act, When this plain meaning "give to the must effect Court language v Detroit Plastic Prod of the used.” Selk (1984). ucts, 1, 9; 345 NW2d 184 The inquiries language at that issue reveals inherently action in hostile work environment of the reasonableness of the volve an examination alleged perpetrator’s "hostile,”26 "intimid conduct: Moreover, appropriate. this standard is embraced con- ness tention at oral argument. Ehrenreich, powerless See, e.g., myths Pluralist men: The law, ideology L in sexual Yale J of reasonableness harassment (1990) (maintaining pluralist undergirding Ameri- doctrines democracy any inquiry can merely are flawed reasonableness Blackwood, flaws); reinforces such reasonable woman subjectivity, L R law and case Vt (1992) (maintaining that the reasonableness standard should be re- purely subjective any placed by a standard because reasonableness biased). male standard is Dictionary Unabridged Third New International Edi- Webster’s relating enemy defines "hostile” as "a: of tion by antagonism ... ... . . . c: marked or unfriendliness e: second, definitions, objec- hospitable especially . . . .” These are tively based. Radtke v Everett Opinion of the Court ating,”27 primarily and "offensive”28 are terms by objective determined factors. inquiry

Furthermore, a reasonableness is neces sary purpose purpose to fulfill noted, of the act. As demeaning

of the act is to combat serious degrading conduct based on sex in the work place, opportunity and to allow women the fairly compete marketplace. in the The reasonable (i.e., inquiry objectively examining ness the total circumstances) ity of the in a hostile work environ simply objectively action, ment is a method of determining whether a hostile work environment accept existed. The alternative would be to all plaintiffs’ subjective conduct, evaluations of thereby imposing upon employers liability for be idiosyncratic that, havior reasons, for is offensive employee. to an We believe that such a result is contrary plain meaning both to the statute, of the purpose. as well as the statute’s overall Cf. Brooms (CA Regal 1989).29 Co, v Tube 881 F2d contrary To hold the would delimit the act and deluge litigation ensure a of unwarranted in con purpose. tradiction of the Instead, act’s the Michi gan objective Act mandates that an thereby formulating utilized, standard be external persons may standards of conduct to which all conform. 27"Intimidate” is defined Frighten as "to make timid or fearful. . . esp: compel (as threats) . . . to action or inaction . . . Webster’s, supra Again, portion at 1184. at least the second of the objective. definition is defined, pertinent part, "insulting, "Offensive” is affront- ing.” Webster’s, supra "Insult,” turn, objectively at 1566. defined: insolence, indignity, contempt "to treat with . . . affront.” Web-

ster’s, supra 1173. LaCroix, Daley 13; See also 179 NW2d 390 ("Generally, defendant’s standard of conduct is measured reactions expected persons. specific to be plaintiff’s knowledge normal Absent sensitivity, recovery hyper- unusual there should be no sensitive mental disturbance where a normal individual would not be circumstances”). affected under the 442 Opinion Court survey

Furthermore, other courts examin- our analogy ing the its reveals statute and federal this See, imposition e.g., standard. reasonableness of some Langlois of Michi- v McDonald's Restaurants App supra gan, 309, 315-318; 385 NW2d Inc, 149 Mich (1986); Moreover, even Brooms, 419. at 778 person rejecting standard the reasonable those lieu tained to ing. gender-conscious have main- standard of a objective utilized must be that an standard plaintiffs prevent hypersensitive from recover- Philadelphia, e.g., See, 895 F2d Andrews v 1990). (CA persuaded 3, Hence, we are 1483 compelling present to no reason curiae that amici abandon persuasive precedent. Court, This there- fore, environ- a hostile work holds whether objective determined ment exists should be reasonableness perceptions subjective standard, not the plaintiff. aof

Plaintiff, however, maintains that the rea- also gender-conscious. should be sonableness standard Hence, application plaintiff urges of a "reason- is female standard when able woman” when the a "reasonable man” standard or agreed: Appeals of a male. The Court in a sexual harassment case believe that [W]e woman, involving the proper perspective to view is that of the "reason offensive conduct from woman,” person.” not that the "reasonable able Thus, pervasiveness of the conduct severity perspective of the vic should be viewed from the tim, irrespec hypothetical employee gender. Brady, v 924 F2d 878- tive of Ellison (CA 9, 1991); King Regents of Univer v Bd (CA 7, 533, sity System, 898 F2d of Wisconsin 1990). that a standard views We believe which person” harassing from the conduct "reasonable to perspective tendency has the be male-biased Radtke v Everett op Opinion the Court reinforcing risk prevailing runs the level of discrimination which state Act designed and case, VII title were to eliminate. In such harassers could continue discriminate merely because such at the norm workplace. App [189 353-354.][30] Andrews, See, supra Other courts concur. e.g., Bakers, v Inc, Bell Crackin Good 1486; 777 F2d (CA v 11, 1985); Smolsky Consolidated (ED Pa, Corp, Rail Supp 283, 1991); 780 F v Inc, Robinson Jacksonville Shipyards, F (MD Us, TL ”R” 1486,1524 Fla, Toys Supp 1991); Inc, 616, 636-639; 255 NJ Super 605 A2d 1125 (1992). Moreover, some commentators vigorously both, criticize the person reasonable standard male-biased and a prop support male domina society.31 tion of

However, with respect, all that we conclude a gender-conscious standard be rejected. must As noted, language the and of purpose the Act require objective that an standard be utilized. At time adoption, the of the act’s of only standards conduct were by defined the that, Accordingly, emphasized "[b]y adopting gender- the Court a conscious standard that views the harassment from the victim’s perspective, perspectives important analyze is it to and understand the different analysis men of and women.” Id. at 355. The Court’s that, vulnerability found force, "because of historical the their in work regard likely physical women are more to degrading verbal a sexual encounter as coercive and reminder that the woman object involved is viewed more an than of desire as a respect.” deserving Similarly, plaintiff credible co-worker of Id. and define, inherently amici curiae contend that men and women inter- pret, differently. Hence, gender- and to react sexual harassment "a partic- conscious examination of sexual harassment enables women to ipate workplace equal Ellison, footing supra in the on with men.” at 879. 31See, Abrams, e.g., and Gender discrimination the transformation ("If norms, workplace judges of continue to strive LR Vand ostensibly objective perspective they for the . . . primarily entrenching will succeed harassment the male-centered views of prevail Ehrenreich, many workplaces”); that n 25 supra at 1213. 442 Opinion the Court Indeed, juris person.32 Anglo-American

reasonable stan person the reasonable had utilized prudence man stan its the reasonable predecessor, dard adoption dard, century well over a before for (5th ed), Keeton, Torts Prosser & § act. departure intended a Legislature 173-175-. If the pp explic standard, it would have certainly from this Accordingly, alteration. itly mandated Legislature intended that find that Court must applied. standard be person the reasonable Moreover, person standard reasonable sufficiently it utilized is flexible should be because gender differences. As described incorporate Prosser, has person Dean reasonable standard to formulate one standard crafted carefully been society: for conduct community of conduct which the The standard one, objective must be an external and demands rather bad, judgment, good or than the individual be, actor; so particular must far as

of the possible, persons, since the law the same all can have no favorites. gone pains to unusual to em-

The courts have phasize hypothetical character of abstract person. He is not be identified mythical this with individual, might any ordinary occasion- who things; prudent is a ally do unreasonable he and . . person, always up to standard. . careful who personification community is rather [H]e behavior, of reasonable determined ideal judgment, at jury’s social [id. 173-175.] it advantage The of this standard” is that "chief to a community triers of fact "to look enables one, and at the rather than an individual standard 1976, adopted prohibiting originally in while the bar The act was to statute in 1980. harassment was added Radtke Everett Opinion op the Court express judgment same time to their of what that standard is in terms of the conduct of a human being.” Torts, 283, 2d, § c, 2 Restatement comment p 13. person

Furthermore, the reasonable standard totality examines the en of the circumstances to Highlander sure fair v KFC result. Nat’l Man (CA agement 1986); 6, Co, 805 F2d Bab 1992). (SD Supp Frank, NY, cock v F783 person Hence, ciently the reasonable standard is suffi incorporate gender flexible to as one fact destroying stability pro or,33 without the vital by vided uniform standards of conduct.34 gender-conscious standard as formulated Appeals, and the Court of on the other person standard, gender Under the reasonable is a be factor to recognize though considered. Prosser and Keeton sonable includes that even the rea- person nevertheless, ordinarily objective, considered situation, appropriate subjective in element of the actor: person vary The conduct of the reasonable will with the jury situation with he is which to take confronted. The must therefore account; negli-

be instructed circumstances into gence person is a failure to do what the reasonable would do "under same or similar circumstances.” Under the latitude phrase, only of this the courts have made allowance facts, external but sometimes for certain characteristics of the himself, applied, respects, actor less the reasonable ing have some a more or subjective context, Depending therefore, standard. on the fact, person may, vary- standard combine in objective subjective ingredients. measure both [Prosser Keeton, supra Emphasis & 175. at added.] provides flexibility, leeway, The standard sufficient permit due allowance be for such made differences between account, permits individuals as the law taken to be into and for particular may all circumstances of the case which reasonably, required, affect the conduct and at the same time which, possible, affords formula far so a uniform may Torts, 2d, 283, standard comment be maintained. Restatement [2 § c, p 13.] Seavey, Negligence Subjective objective, See also 41 Harv L R — (1927); Keeton, supra Prosser & 175. 442 Mich 368 Opinion of the Court gender emphasis places the on and hand, undue inappropriately particular de it while emphasizes society’s of need for uniform standards gender-conscious Hence, standard a conduct.35 replaces community and standards eliminates them with a subset of standards formulated gender-conscious acceptance community. a An of undergirding logic in it would and the standard exorably legal fragmentation stan lead to society. all, the After the detriment dards Michigan diversity of ethnic multitude is —a origins, religions, groups, races, cultures, national divergences in and education— as well as wealth many standards.36 Yet one stan would demand as regulated always this has diverse dard of conduct population, to hold would weave otherwise great unnecessary into the discord and confusion law. gender-conscious

Furthermore, is standard gender-neutral principles clearly contrary to the underpinning Al Act. gender-conscious though intended, standard well very reintrench the sexist attitudes could 35 Instead, experiences encompassed under a should be a 'reasonable woman’ standard. "[w]omen’s person’ merely 'reasonable expanded personhood, a Under an gender notion of reasonable victim’s Dragel, be but one factor a court considers.” Hostile would sexual harassment: Should ninth circuit’s "reason environment (1992). 237, adopted?, 11 JL & able woman"standard be Com 36Indeed, begun fragment already reason- some courts have See, Andrews, e.g., supra (utilizing person at 1482 able "minority employee” 1509, standard. Co, standard); Paper Supp Harris v Int’l 765 F (D (D 1516, Me, 1991), Me, part Supp n 12 765 F vacated 1991) protected (utilizing person group the "reasonable from the Arizona, standard); Stingley is a which the 796 victim member” " 1992) (D Ariz, (utilizing person Supp F 'reasonable omitted). ”) (citation gender of the same and race or color standard’ Moreover, Abrams, See, e.g., specifically path. some commentators endorse this ("Courts supra exploi- n 31 also should consider the arising tation from as a woman of a of sensitivities socialization racial, Rhode, ethnic, group”); particular harassment, Sexual socio-economic (urging R n 27 65 So Cal L use standard). "reasonable victim” Radtke v Everett Opinion of the Court attempting to counter. belief that women are separate legal merely entitled to standard re originates perhaps inforces, typic from, the stereo justified subordinating notion that first workplace. utilizing women in the Courts the rea pour sonable woman standard into the standard stereotypic assumptions of infer women which fragile, sensitive, women in are need of a protective paternalism more grades standard. Such de repugnant very

women and is to the ideals equality protect.37 of act that the to intended persuaded by Indeed, we are amicus Uni curiae versity Michigan Clinic, of Women and Law which opposes the reasonable woman as standard counterproductive: disadvantages are tailoring There stan long the solely Being dard to women. a member of a disadvantaged group puts time in a some women position they where need in support institutional However, achieving equality. support, that in and itself, stigmatize can cause others to women as a

weaker, group protection. less able In need effect, distinguishing special protection women for puts disadvantaged position them back in the special protection which led the need in the first place.[38]

37 Furthermore, may the "reasonable woman” standard re- inforce notion the that women are "different” from men special therefore need treatment —a notion that has disenfran- workplace. perspective, chised women in the a "reasonable woman” Viewed from this may perception the standard create special sexual harassment law allows treatment for women. [Dragel, supra Kenealy, n 35 at 254. See also Sexual harass- standard, Lawyer ment the reasonable woman Labor 203- (1992).] urges adoption Amicus curiae of a "reasonable stan- victim” explains upon particular dard. It characteristics that the standard would focus defendant, race, sex, including, e.g., and reli- gion. standard, only fragments person This formulation not the reasonable analy- subjective but devolves the standard into an all but sis. 442 Mich op Opinion the Court application of the reason

Hence, we reaffirm person that whether standard. We hold able be deter existed shall work environment hostile person, in the whether a reasonable mined perceived totality circumstances, would have interfering substantially with conduct issue having purpose plaintiff’s employment intimidating, creating hostile, or or effect of offensive employment MCL environment. 3.548(103)(h).39 37.2103(h); MSA Ap the Court of also submit Defendants ruling single peals incident of that a erred may a hostile work establish action. Defendants contend cause of environment only pattern of sexual harassment can so that poison as to constitute a

the work environment work Supporting defendants’ hostile environment. nearly universal consensus of is the contention single holding generally authority that a federal will not create a incident sexual harassment e.g., See, v work environment. Chamberlin hostile (CA 1990); Realty, 1, 777, Inc, 783 101 915 F2d (CA 1981); Taylor 8, Jones, 653 F2d 1193 Bab v supra cock, at 808.40 im

Nevertheless, the Act liability poses sexual harassment creates whenever 39 person Highlander, supra (utilizing reasonable at 650 See also Babcock, Vinson, test); (same); totality supra 808 at of circumstances 1604.11(b) 69, (utilizing totality supra quoting 29 of circum- at CFR test); (same); Spencer Lipsett, supra v 898 General Electric at stances 1988) (ED Va, Co, 204, (utilizing Supp reasonable 697 F 218-219 (same). standard); Burns, supra person at 566 40 hand, recognized that a the other federal courts have also On very single King, supra to constitute a incident can be sufficient violation severe 537; Aponte, v at 660 F title VII. Del Valle Fontanez (D 587, PR, 1987); Hough, Supp Supp F 605- Vermett 1986). (WD Mich, Radtke v Everett Opinion op the Court Although single rare, a hostile work environment. incidents may rape create a hostile environment — possible are two and violent sexual assault scenar experience extremely ios. One traumatic such may, statutory requirement.41 therefore, fulfill the single incident, extreme,

Because a unless will intimidating offensive, hostile, not create or supra environment, Chamberlin, 783; at work Highlander, supra plaintiff usually 649-650, a (1) prove employer rectify must problem that failed a adequate notice, and a continu- after problem repetition periodic or or ous an existed episode likely was to occur. perpe case, however,

In the instant because the employer,42 trator of conduct employer was recourse to the fruitless.43 The al leged reality conduct, combined with the employer perpetrator, permits single was the this jury. incident to be sufficient reach the Al though perpetrated by the same conduct a co might worker not constitute a hostile work envi employer closely ronment, when an in a knit working physically environment an em restrains ployee attempts physically to coerce sexual totality permits relations, the of the circumstances standard, however, liability This does not establish strict supervisor, sexual assault a co-worker or because an vicariously respondeat supe- must be found rior. A liable via doctrine of co-worker, rape then, might a hostile work constitute "plaintiff environment because ployer must demonstrate the em- knowledge had actual constructive of the existence of a sexually working prompt hostile environment and took no and ade- 1983). (CA Dole, quate remedial action.” Katz v F2d hand, rapist liability'should employer, if On almost other was an certainly immediately. attach 42 post, pp See 396-397. 43 plaintiff ability the Defendants claim had to obtain recourse powerless Dr. Dr. from Clarke. Yet Clarke was to the behavior alter only equal corpora- Everett because he was an in the shareholder circumstances, In tion. such if incident of an sexual case, prima otherwise create a we find recourse to an would facie equal co-owner will defeat the claim. Mich 368 442

396 Opinion the Court conduct whether defendant’s a to determine jury work envi a hostile to have created sufficient was ronment.

E environment hostile work a The final element be met superior respondeat —is case — cause her employer. alleged perpetrator the Act, employer an Rights Under investigated adequately "if liability avoid may remedial action appropriate prompt and and took work environ alleged hostile notice of the upon Receiving Hosp, 191 Detroit v ment.” Downer 232, (applying 477 146 234; NW2d App Mich claim).44 See also Act to a Civil the standard Babcock, appropri prompt at 809. Such supra employer to permit will remedial action ate co if accuses either liability avoid Co, State Farm Ins 170 McCarthy v worker, (1988),45 supervisor or a 451, 692 457; NW2d App Ellis, App McCalla v harassment. Vinson, (1989), citing 372, 380; 446 NW2d 72; Downer, supra employer, An 234.46 supra at at 44However, duty investigate take has "[t]he only regarding if prompt of sexual harassment claims remedial action offensive environment.” Id. or notice of the it has actual constructive 235. (CA Bank, 726 F2d Nat’l See also Barrett Omaha 1984). so because: This must be illogical pure liability environment hostile Strict case, pro quo quid no exists.

setting. In a hostile environment company; supervisor acts supervisor does not act as fire, authority hire, apparent scope "the of actual or outside therefore, discipline, Corporate liability, promote.” exists liability through respondeat superior; only exists where corporate have known of harass- knew or should defendant against prompt action to take remedial ment and failed Inc, Shipbuilding, F2d supervisor. v Offshore [Steele (CA 11, 1989).] Radtke v Everett Opinion of the Court alleged course, must have notice of being implementing before held liable for not ac (CA 1983); Dole, tion. Katz v 709 F2d supra employer Henson, However, at 905. if an is respondeat harassment, accused of sexual then the superior inquiry unnecessary holding is because personal liable for actions is not unfair. clearly case,

In the instant the record reveals individually, Everett, as well as defendant Dog Hospital, Clarke-Everett and Cat were em ployers plaintiff. possessed They ability plaintiff working hire and fire and to control her discipline, paid conditions, maintained her her wages, corporation employed and owned the her.47 plaintiff

Hence, we hold that has prima facie case of a hostile work environment ruling Appeals, and affirm the of the Court of grounds. albeit on different

Finally, Appeals sponte, held, Court of sua plaintiff’s complaint brought that because battery charge against assault and Everett as an provision individual, inappli the wdca exclusion App cable. 189 However, 358-359. because appeal appli did not the trial court’s cation of the wdca to her claim in the Court of Appeals, requested and because the never permission complaint to amend her in the trial preserved appeal. court, this issue has not been Thus, it should not have been reached Appeals, appropriately Court of nor is it decided 47See, e.g., Co, 641, 653; Wells v Firestone Tire & Rubber 421 Mich (1984). 364 NW2d 670 442 Mich Opinion op the Court e.g., appeal See, v Drie Glass on this Court.48 (1941).

borg, 30, 33; 295 NW Hence, of the Court of we reverse the decision grant Appeals the trial court’s and reinstate disposition regarding summary the assault battery claim.

IV summary, In we hold: objective (cid:127) standard must An reasonableness utilized determine whether hostile be under the Michi- environment exists work gan Rights Act. (cid:127) claim is A hostile work environment action- totality only when, of cir- in the

able cumstances, so environment is work that a reasonable tainted person harassment de- have would understood communication had fendant’s conduct or substantially purpose of either the or effect interfering plaintiff’s employment, with the subjecting to an intimidat- ing, hostile, environment. or offensive work gender-conscious (cid:127) is violative of A the standard

legislative act, intent of the undermines conduct, ulti- uniform standards of and is mately unnecessary. single may

(cid:127) to consti- A tute a hostile work environment incident be sufficient

if severe perpetrated by an working closely in a knit environment. Appeals improperly (cid:127) The Court of reached remedy the issue whether exclusive provision of the wdca bars an alternative argument regarding party presented in-depth has this Neither an significant question. extremely Radtke v Everett Opinion Griffin, J. battery claim assault and when the claim allege injury fails to that the defendant upon plaintiff. intended to inflict ruling Ap- Thus, we affirm the of the Court peals prima has facie case environment, of a hostile work on albeit different grounds, opinion and we reverse the of the Court Appeals and reinstate the trial court’s order granting disposition regarding summary the as- battery sault and claim. C.J.,

Cavanagh, Levin, Brickley, Boyle, JJ., J. Mallett, Riley, concurred with (dissenting part). princi- J. Plaintiff’s Griffin, (h)(iii) pal grounded upon claim is subsection § Act, 103 of the Civil which includes within "[discrimination its definition of because of sex” unwelcome sexual advances "[s]uch when purpose . . conduct . tially interfering has the or effect of substan- employment with an individual’s creating intimidating, ... or hostile, an or offen- 37.2103(h)(iii); . . . sive environment.” MCL MSA 3.548(103)(h)(iii). Because I believe the cause of (h)(iii) contemplated action quires under subsection re- single more than a brief incident of the alleged respectfully here, kind I dissent. considering parameters

In of a envi "hostile Supreme claim, ronment” the United States Court explained Savings Bank, Vinson, in Meritor FSB v (1986), 57, 67; 477 2399; US 106 S Ct 91 L Ed 2d 49 "[f]or actionable, that sexual harassment to be sufficiently pervasive must be severe or 'to alter employment the conditions of . . . and create an ” working Quoting abusive environment.’ Henson v 1982). (CA Dundee, 897, 11, 682 F2d 904 As the majority correctly prevail states, 394, ante at 442 Mich 368

400 Griffin, J. Opinion advance, with sexual is that "an isolated ing view that more, requirement an satisfy not out does for hostile asserting a cause of action employee an abu demonstrate discrimination environment 101 v environment.” Chamberlin workplace sive 1990).1 (CA Inc, 777, 1, Realty, F2d 783 915 Ap our Court of recognized by This view was Restaurants Langlois v McDonald’s peals Michigan, Inc, 309; 385 778 App 149 Mich NW2d (1986), a made plaintiff’s wherein co-worker briefly "then his placed and verbal sexual advance her her buttocks.” 'grabbed’ hand on breast and that acknowledging 311. App While terminated from his em properly co-worker respon and "should have faced criminal ployment 316, id. actions,” Court sibility for his of the "reading the basis of its explained that on court cases, the district especially federal construing pervasiveness the severity cases ..., we con which must established conduct be ... remedy act not allow clude does under these facts.” Id.2 1 Chamberlin, to find that five verbal sexual In the court failed even 915 F2d 783. to create a hostile environment. advances were sufficient See also Babcock v 1992). (SD Frank, 800, NY, Supp F recognized

majority very have that a that "federal courts also also notes single be sufficient to constitute a violation severe incident can 394, However, n of the cases cited in title VII.” Ante at 40. none single actually incident was sufficient 40 did the court find that a note to create a hostile environment. King Regents See v of Univ of is not the Bd 1990) (CA ("This 7, System, Wisconsin 898 F2d innocent, Instead, repeated, single, query. we have of a case unwelcome advances, physical attack.”); fondling, and Del Valle (D 1987) (an PR, Aponte, Supp F incident Fontanez v where the against plaintiff’s supervisor pressed body his her and she organ sufficiently his not have been so severe felt erect sexual "would environment”); working pervasive Vermett to create F abusive 1986) (WD Mich, ("only Hough, Supp one of find, actually .... I occurred incidents of sexual however, standards, under the cited definitions this was sex”). harassment, upon of nor was it an act based an act 2 notes, 381-382, law, correctly majority federal case As ante the binding, persuasive precedent in our consideration civil while not is Radtke 401 Everett Opinion by Griffin, J. appears major case, however, In this that the ity severity sliding has devised what amounts to a scale perpetrator

"because the of the employer conduct was While I . . . Ante at 395. agree majority with the that defendant employer respondeat Everett’s superior requirement, status satisfies the 3 I do not believe it follows relationship "closely working that this or the knit particular environment” makes the question conduct pervasive.4 Moreover, more severe or Id. complain if

even it would have been fruitless to employer, majority asserts,5 as the this consid eration, severity itself, in and of does not increase the pervasiveness of the conduct.

Following episode alleged by plaintiff in this case, she finished her shift without further inci resigned morning However, dent. she the next job. never returned to her Under these circum knowing way stances, has no what work environment would have been like had she returned.6

Although principal plaintiff’s focus of com rights Co, Goodyear issues. Sumner v Tire & Rubber (1986). 525; 398 NW2d 3See, e.g., Telephone Co, Telegraph Vance v Southern Bell & 1989): (CA 11, F2d the harasser is himself the "[W]here plaintiff’s employer, agent employer, employer or an of the directly, indirectly rather than liable for the harassment.” recognize relationship may While I that this relevant be in deter- mining tially interfering intimidating, MSA matically purpose whether the conduct "has the or effect of substan- employment creating with an individual’s ... or hostile, environment,” MCL37.2103(h)(iii); or offensive. . . 3.548(103)(h)(iii), agree relationship I do not this auto- jury allows determination on this issue. majority, prepared Unlike the I am not to assume that resort to cases, would be fruitless in all such however. agree City Housing I While with the court in Carrero v New York (CA Authority, 2, 1989), employee 890 F2d female "[a] subject period demeaning. need not herself to an extended degrading provocation being before entitled to seek the remedies provided” ture from the Act, depar- under the Civil I do not believe that a requirements justified outlined in Vinson is in this case. departure "blurring beyond recognition any Such a creates a risk of 442 Mich 368 Opinion Griffin, J.

plaint is on the claim of a hostile work environ possibility ment, that a I do not discount (h)(iii) might separate claim under have subsection ground that con been asserted on the defendant’s plaintiff’s single substantially em duct ployment. interfered with available, If incident otherwise unusually be the basis for a that claim of substantial severe could

interference with an individu employment. al’s plaintiff resign

However, chose to rather because any work, claim of substantial than return to employment only her could be interference with premised upon discharge theory.8 To a constructive prevail theory, plaintiff must on such a establish employer things that the intended "to make either forcing employee, thus him or her difficult for an resign,” LeGalley Community to v Bronson App Schools, 482, 487; 339 NW2d 223 (1983), reasonably it that or that was foreseeable compelled resign. plaintiff feel to Held v would 1981). (CA Co, F2d Gulf Oil allege case, her

In this does that resignation. her Al intended force though alleges person in her she that a reasonable position resigned, would have such an assertion is severely deposition own testi undercut her quid meaningful pro quo distinction between hostile environment and Chamberlin, supra, 915 F2d 783. discrimination.” argument, questioning by Upon the Court oral counsel for both language parties apparently tially interfering statutory conceded that "substan- employment... creating with an individual’s hostile, intimidating, . . . environment” describes a hos- or offensive action, separate than tile environment cause of rather two theories recovery. finding majority is a concludes that a sexual harassment plaintiff’s "necessary predicate,” claim ante at n that she discharged. job constructively quit her thus was Because created, experience says hostile was I did not environment she discharge "necessary as a would view establishment constructive predicate” this with case to a claim of substantial interference (h)(iii). employment under subsection Radtke v Everett Opinion by Gbiffin, J. episode mony. she that before this She conceded years for 4 with worked for the defendant Vi had prior conduct, she had of offensive no incident happy relationship good defendant, with defendant, about was not concerned her work with possible being him, and that it was alone with mistakenly him to kiss she wanted he believed circumstances, reason was not her.9 Under these resign ably (unsuccessfully) he did that she would when foreseeable attempt to kiss her. judge case,

In this the circuit found not rise to Defendant Everett do "acts attributed persistence severity the level of which permit recovery I under the act.” Because would judge correctly, I ruled conclude that the circuit Appeals the decision of the Court of would reverse judgment trial and reinstate the of the court._ her, attempted to kiss Plaintiff also testified before defendant " said, 'Oh, back, me,” really her told her "he liked he caressed ” on, you way you tell me don’t feel the same about me.’ come can’t However, way. reply that she did feel the same Plaintiff’s she testified "out of wanted to hear.” indicated fear, thought I lied ... I told him what I he

Case Details

Case Name: Radtke v. Everett

Court Name: Michigan Supreme Court

Date Published: Jun 2, 1993

Citation: 501 N.W.2d 155

Docket Number: 92582, (Calendar No. 4)

Court Abbreviation: Mich.