California Legal Team
STATE OF MICHIGAN
IN THE COURT OF APPEALS
__________________________
No. 98-213029
__________________________
LYNETTE BURNS,
Plaintiff-Appellee,
v.
CITY OF DETROIT, a municipal corporation;
DEREK HICKS, Individually and in his official capacity; and
DARRYL HOPSON, Individually and in his official capacity, Jointly and Severally,
Defendants-Appellants.
______________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLEE LYNETTE BURNS
______________________________________________________
NICHOLAS M. INZEO
Acting Deputy General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
PHILIP B. SKLOVER
Associate General Counsel
JULIE L. GANTZ
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
ADELE RAPPORT
Regional Attorney
Detroit District Office
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
477 Michigan Avenue, Rm. 865
Detroit, MI 48226
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
BACKGROUND 3
ARGUMENT
BASING LIABILITY UNDER THE ELLIOTT-LARSEN ACT ON CONDUCT OF A SEXUAL
NATURE THAT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING WITH
AN INDIVIDUAL'S WORK PERFORMANCE OR CREATING AN INTIMIDATING, HOSTILE,
OR OFFENSIVE WORK ENVIRONMENT DOES NOT VIOLATE THE FIRST AMENDMENT. 9
CONCLUSION 29
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES
Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 12 (Cal.
1999) 11
Baty v. Willamette Indus., Inc., 172 F.3d 1232 (10th Cir.
1999) 10, 17
Berman v. Wash. Times Corp., No. 92-2738, 1994 WL 750274 (D.D.C.
Sept. 23, 1994) 10
Broadrick v. Oklahoma, 413 U.S. 601 (1973) 24, 25, 26
Burns v. City of Detroit, 637 N.W.2d 503 (Mich. 2002) 9
Burns v. City of Detroit, No. 213029, 2000 WL 33403017
(Mich.Ct.App. Oct. 31, 2000) 8, 21
City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728
(2002) 16, 17
City of Renton v. Playtime Theatres, 475 U.S. 41 (1986)
16, 17, 18
Connick v. Meyers, 461 U.S. 138 (1983) 19, 20
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 27
Frisby v. Schultz, 487 U.S. 474 (1988) 18, 20, 22
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 15, 23, 24, 26
Hill v. Colorado, 530 U.S. 703 (2000) 25
Hishon v. King & Spalding, 467 U.S. 69 (1984) 10
ISCON v. Lee, 505 U.S. 672 (1992) 18
Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993) 10,
18
Koester v. City of Novi, 458 Mich. 1 (1998) 9
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) 15, 24, 27
New York v. Ferber, 458 U.S. 747 (1982) 24, 25, 26
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)
22, 27
Osborne v. Ohio, 495 U.S. 103 (1990) 24
Pickering v. Board of Ed., 91 U.S. 563 (1968) 19, 20
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
10, 12, 14, 18
Radtke v. Everett, 442 Mich. 368 (1993) 9, 23
Rankin v. McPherson, 483 U.S. 378 (1987) 19
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) 14, 21
Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla.
1991) 10, 17, 21
Sanchez v. Texas, 995 S.W.2d 677 (Tex. Crim. App. 1999) 11
Shaw v. Delta Air Lines, 463 U.S. 85 (1983) 3
Snell v. Suffolk County, 611 F. Supp. 521 (E.D.N.Y. 1985) 22
Trayling v. Bd. of Fire and Police Comm'rs, 273 Ill. App. 3d 1
(Ill. App. Ct. 1995) 11
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) 26
Waters v. Churchill, 511 U.S. 661 (1994) 20
Watts v. United States, 394 U.S. 705 (1969) 12
Whitney v. California, 274 U.S. 357 (1927) 20
Wisconsin v. Mitchell, 508 U.S. 476 (1993) 10, 12
STATUTES AND REGULATIONS
Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et
seq 1
Michigan Elliott-Larsen Civil Rights Act
M.C.L. � 37.2103(i)(iii) 2, 23
M.C.L. � 37.2202(1)(a) 9, 24
29 C.F.R. � 1604.11(a) 2, 9, 23
MISCELLANEOUS
Mary Becker, How Free is Speech at Work? 29 U.C. Davis L. Rev. 815,
816 (1996) 19
Richard H. Fallon, Sexual Harassment, Content Neutrality, and the First
Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 14 (1995) 13, 16,
21
Amy Horton, Of Supervision, Centerfolds, and Censorship: Sexual
Harassment, the First Amendment, and the Contours of Title VII, 46
U. Miami L. Rev. 403, 423 (1992) 20
Marcy Strauss, Sexist Speech in the Workplace, 25 Harv. C.R.-C.L.
L. Rev. 1, 38-39 (1990) 15
Nadine Strossen, The Tensions Between Regulating Workplace
Harassment and the First Amendment: No Trump, 71 Chi.-Kent
L. Rev. 701, 706-07 (1995) 19
STATE OF MICHIGAN
IN THE COURT OF APPEALS
__________________________
No. 98-213029
__________________________
LYNETTE BURNS,
Plaintiff-Appellee,
v.
CITY OF DETROIT, a municipal
corporation; DEREK HICKS,
Individually and in his
official capacity; and
DARRYL HOPSON, Individually
and in his official capacity,
Jointly and Severally,
Defendants-Appellants.
______________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLEE LYNETTE BURNS
______________________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency charged by
Congress with the interpretation, enforcement, and administration of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq.,
and other federal employment discrimination laws. A jury found in
this case that the defendant violated the Elliott-Larsen Civil Rights
Act by subjecting the plaintiff to a hostile work environment based
on her sex. The speech on which plaintiff's sexual harassment claim
is based consisted of threatening, abusive comments directed at the
plaintiff by two of her co-workers. The Michigan Supreme Court has
directed this Court to consider the question of whether those statements
can form the basis for liability under the Elliott-Larsen Act without
running afoul of the First Amendment of the U.S. Constitution or its
counterpart in the Michigan Constitution.
The prohibition of sexual harassment in the Elliott-Larsen Civil
Rights Act closely parallels the definition of sexual harassment in the
Commission's guidelines interpreting Title VII.<1> A holding in this
case that the Elliott-Larsen Act may not constitutionally be interpreted
to prohibit an employer from subjecting a female employee to the sort
of working environment to which the plaintiff was subjected would
seriously undermine the effectiveness of the state law in protecting
female employees from discriminatory working conditions. This would
have a concomitant effect on the enforcement of Title VII's similar
prohibitions because state laws, like the Elliott-Larsen Act, �play
a significant role in the enforcement of Title VII.� Shaw v. Delta
Air Lines, 463 U.S. 85, 101 (1983) (citations omitted). Furthermore,
because of the similarity between the state and federal provisions,
this Court's decision on the constitutional question may influence
courts considering the same question under Title VII. Accordingly,
the Commission offers its views to the Court.
BACKGROUND
Lynette Burns worked for the Detroit Police Department as a fingerprint
identification technician beginning in 1988.<2> From July 1994 through
January 1995, Burns was subjected to unwelcome sexual and sexist comments
from two coworkers, Terrence Hill and Darryl Hopson. Hill also
sometimes blew in Burns' ear and put his arm around her shoulders.
Pl.Br. Att. 2; Trial Transcript (�TT�) Vol. IV at 36. On one occasion
when Burns rebuffed Hill's advances, Hopson called her a �man-hating
female.� Pl.Br. Att. 2; TT Vol. IV at 36. Hopson sent Burns six
or seven notes telling Burns that he wanted a relationship with her,
that she was pretty and had a sexy smile, and that he would like to
kiss her. Pl.Br. Att. 1 (note); Pl.Br. Att. 2; TT Vol. III at 130-31.
Hopson commented that Burns was probably �wild� when she got home.
Pl.Br. Att. 2. Burns made it clear that she was not interested in a
sexual relationship with either coworker. Pl.Br. Att. 2.
While working the midnight shift on November 14, 1994, Burns was
the subject of an angry tirade of abusive and threatening comments
about the inferiority of women by Hill and Hopson. Pl.Br. Att. 2.
While Burns attempted to help a trainee, Hopson yelled at Burns that
it was the �blind leading the blind� and that �she didn't know shit.�
Pl. Br. Att. 2; TT Vol. IV at 44. Hopson insisted that �these fucking
females up in here will drive you out of your goddamn mind, that's what
you can't let them do.� TT Vol. IV at 45; Pl.Br. Att. 2. Hill referred
to Burns as �a frustrated bitch without a man.� Id. at 46.
Both Hill and Hopson continued to berate Burns throughout the evening.
For example, she was repeatedly called �bitch,� �fucking female,� told
that she needed to �get her ass fucked by a man every night,� and that
she was abnormal for being 30 years old without a man. Pl.Br. Att. 2.
Hill said he had been making passes at Burns because her problem was
that �you don't have a man to fuck 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. I will be glad if I can transfer out.�
Pl. Br. Att. 2; TT Vol. IV at 57. Gil Stevens, one of the unit
supervisors, witnessed Hill and Hopson shout and curse at Burns, but
did nothing. Pl.Br. Att. 2; TT Vol. IV at 46, 57-58, 87-89, 93-94.
Burns' supervisor, Nola Hitchens, told Burns that Hill and Hopson
were just joking and she should not take the matter so seriously, but
advised her to put her complaint in writing. Pl.Br. Att. 2; Att. 5
(12/1/94 EEOC charge). Burns provided Hitchens with a summary of
the events of November 14-15. Hitchens then informed Administrative
Supervisor Derek Hicks of the Burns' sexual harassment claim in a memo.
Hill was counseled for using vulgar language and both Hill and Hopson
received a demerit on their annual evaluations for an �altercation with
a coworker.� Pl. Br. Att. 3; Att. 4 (12/1/94 EEOC charge).
On November 21, 1994, Hopson threatened Burns with physical harm for
reporting the harassment and made additional sexual comments. TT Vol. IV
at 96-98; Pl.Br. Att. 2; Att. 4 (EEOC charge). Hopson told coworkers
that women in Burns' unit were unhappy women without men in their lives
and that they needed a life and were jealous of Hopson whose wife gives
him sex and breakfast in bed. Pl.Br. Att. 2; TT Vol. IV at 96-97.
Hopson accused Burns of �fucking with Terence [Hill] while he's on
probation,� and stated that �if somebody messed with my job knowing I
got a wife and two kids, I'll stump them. I'll follow their ass out to
her car and stump the shit out of the bitch.� Pl.Br. Att. 2; TT Vol. VI
at 98, 101. Hopson went on to threaten that �[i]f you catch her ass
out there and stump the living shit out of her fucking ass, nobody will
see you and I'll drive past 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.� Pl.Br. Att. 2. Burns stated that, after these threats were made,
she was afraid to come to work. Pl.Br. Att. 4 (12/1/94 EEOC charge).
On December 1, Burns filed a charge with the Michigan Department of Civil
Rights (MDCR) alleging claims of sex discrimination and retaliation.
At a meeting in response to Burns' complaint held on December 6,
1994, supervisor Derek Hicks belittled Burns' allegations. He called
the complaint �a bunch of BS� and stated that women will �cry sexual
harassment� because of premenstrual syndrome or because they wake up on
the wrong side of the bed. TT Vol. IV at 108-10; TT Vol. VI at 127-29;
TT Vol. VII at 124; Pl.Br. Att. 6. He warned Hill and Hopson that
�now when you say something to a woman she can take you to court.�
Id. at 109; Pl.Br. Att. 6. On December 12, Burns stated in a letter
to Police Chief Isaiah McKinnon that she was sexually harassed and
that Hicks trivialized her complaint. Pl.Br. Att. 6. Burns' letter
also noted that Hicks was displeased that she had filed a charge with
the Civil Rights Commission instead of letting Hicks handle it. Id.;
TT Vol. V at 20-22, 24; see also TT Vol. IV at 110; TT Vol. V at 25.
On December 16, Burns was transferred to the day shift to get her
away from Hill and Hopson pending an investigation. TT Vol. V at
26; Pl.Br. Att. 7 (1/26/95 EEOC charge). The transfer constituted a
hardship for Burns because she could no longer rely on her mother to
care for her child while she was at work. Id. at 27-29. Burns was also
forced to accept a reduction in pay for the day shift and pay a higher
parking rate. TT Vol. V at 27-28. On January 26, 1995, Burns filed
a second charge with the MCRD adding the allegation that her schedule
had been changed against her will in retaliation for filing a charge.
Pl.Br. Att. 7. On January 30, 1995, Burns began a stress-related
disability leave. On July 17, 1995 Burns filed a third charge with
MDCR stating that the City had taken no action in response to her sexual
harassment complaints. Pl.Br. Att. 8.
Burns filed suit in Wayne County Circuit Court on October 10, 1995,
alleging four state-law claims: sexual harassment and retaliation in
violation of the Michigan Elliott-Larsen Civil Rights Act, defamation,
and tortious interference with a business relationship. On December 27,
1995, Burns resigned. In January 1996, the City began its first formal
investigation of Burns' 1994 complaint by directing an investigator to
interview Burns. TT Vol. V at 105.
On November 15, 1996, the trial court denied the City's motion for
summary disposition. The case was tried to a jury January 26 to February
20, 1998. The jury found for Burns on all four claims and awarded her
$1,156,496 in damages. This Court affirmed the jury's verdict on the
sexual harassment and retaliation claims, but reversed the judgment
on the defamation and tortious interference claims. Burns v. City of
Detroit, No. 213029, 2000 WL 33403017, at *7 (Mich.Ct.App. Oct. 31,
2000).
Both parties appealed to the Michigan Supreme Court. The Supreme Court
remanded the case to this Court, instructing it to consider the question
whether �the remarks that supported the �hostile environment' sexual
harassment claims cannot form the basis for liability because they are
protected speech under U.S. 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.� Burns v. City of Detroit, 637 N.W.2d 503 (Mich. 2002).
Three justices dissented from the order.
ARGUMENT
BASING LIABILITY UNDER THE ELLIOTT-LARSEN ACT ON CONDUCT OF A SEXUAL
NATURE THAT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING WITH
AN INDIVIDUAL'S WORK PERFORMANCE OR CREATING AN INTIMIDATING, HOSTILE,
OR OFFENSIVE WORK ENVIRONMENT DOES NOT VIOLATE THE FIRST AMENDMENT.
Michigan's Elliott-Larsen Civil Rights Act (�ELCRA�) provides that an
employer shall not �discriminate against an individual with respect
to employment, compensation, or a term, condition or privilege of
employment, because of . . . sex.� M.C.L. � 37.2202(1)(a). The statute
defines discrimination to include �unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct or communication
of a sexual nature,� where �such conduct or communication has the
purpose or effect of substantially interfering with an individual's
employment� M.C.L. � 37.2103(i)(iii). This provision closely parallels
the definition of sexual harassment in the Commission's Guidelines on
Discrimination Because of Sex. See 29 C.F.R. 1604.11(a).<3>
No court has held that proscribing sexual harassment in the workplace,
in any form, violates the First Amendment. Although it has not
directly addressed the issue, the U.S. Supreme Court has signaled its
general disagreement with First Amendment defenses to liability under
Title VII. See Hishon v. King & Spalding, 467 U.S. 69, 78 (1984)
(rejecting argument that applying Title VII to partnership decision
would infringe constitutional rights of expression); R.A.V. v. City
of St. Paul, 505 U.S. 377, 389 (1992) (after holding that local
hate-crimes ordinance violated First Amendment, distinguishing claims of
hostile work environment under Title VII); Wisconsin v. Mitchell, 508
U.S. 476, 487 (1993) (�In Hishon, we rejected the argument that Title
VII infringed employers' First Amendment rights. And more recently,
in R.A.V. v. St. Paul . . ., we cited Title VII . . . as an example
of a permissible content-neutral regulation of conduct.� (citations
omitted)). The lower courts that have directly addressed the issue have
all rejected First Amendment defenses to sexual harassment claims under
Title VII. See Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1247
(10th Cir. 1999); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847,
884 n.89 (D. Minn. 1993); Robinson v. Jacksonville Shipyards, 760
F. Supp. 1486, 1534-36 (M.D. Fla. 1991); Berman v. Wash. Times Corp.,
No. 92-2738, 1994 WL 750274, at *5 n.4 (D.D.C. Sept. 23, 1994).<4>
There are at least four reasons why imposing liability on the defendant
under ELCRA � or by extension Title VII � for the harassing conduct
that occurred in this case would not offend the First Amendment:
(1) the nature of the comments supporting a hostile work environment
in this case are akin to threats and fighting words, and therefore
do not trigger First Amendment analysis; (2) ELCRA and Title VII are
concerned with addressing the secondary effects of harassing speech �
workplace discrimination � and only incidentally aimed at particular
speech, thus warranting only intermediate scrutiny; (3) the workplace
is a unique site where First Amendment rights have never been at their
strongest and where victims of harassment are captive; and (4) ELCRA
and Title VII are narrowly tailored to accomplish the compelling state
interest of eradicating workplace discrimination. Moreover, neither
ELCRA nor Title VII raise �vagueness� or �overbreadth� concerns because
each statute's prohibition of sexual harassment rising to the level of
a hostile work environment does not pose a substantial risk of chilling
speech protected by the First Amendment.
1. Defendant argues that, because the harassment for which it was held
liable under ELCRA was solely verbal, there is an inherent conflict with
the First Amendment.<5> On the contrary, not all speech necessarily
implicates the First Amendment. The Supreme Court has �reject[ed] the
�view that an apparently limitless variety of conduct can be labeled
�speech� whenever the person engaging in the conduct intends thereby
to express an idea.'� Wisconsin v. Mitchell, 508 U.S. at 484 (quoting
United States v. O'Brien, 391 U.S. 367, 376 (1968)). Certain categories
of �low-value speech� are so far afield from the political-discourse
ideals at the root of the First Amendment that the government may freely
regulate them. These include threats of violence and fighting words.
See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (threats
of assault or other violent conduct are not protected speech under
the First Amendment); cf. R.A.V., 505 U.S. at 389-90 (verbal sexual
harassment may constitute �sexually derogatory �fighting words'�).
Most, if not all, of the statements by Hill and Hopson upon which
plaintiff's sexual harassment claim is based constitute threats or
fighting words. Many of the statements at issue in this case, as in
many sexual harassment cases, constitute express or implied threats of
sexual assault or other forms of violence. For example, Hill's and
Hopson's shouting and cursing at Burns, such as Hill's comment that
Burns needed to �get her ass fucked by a man every night,� are nothing
more than threats and fighting words, and outside the purview of the
First Amendment. To the extent that liability was based on comments
of this sort, the First Amendment is not implicated.
2. We acknowledge that some speech that contributes to a hostile
work environment might potentially fall within the reach of the First
Amendment.<6> However, the Supreme Court has made clear that the
fact that ELCRA and Title VII may have incidental effects on such
protected speech does not mean that they violate the First Amendment.
These statutes are aimed not at the message of harassing speech, but at
eliminating the inequality in the workplace stemming from harassment
based on sex, race or some other prohibited basis. The Supreme Court
has indicated that a �valid basis for according differential treatment
to even a content-defined subclass of proscribable speech is that the
subclass happens to be associated with particular �secondary effects' of
the speech.� R.A.V., 505 U.S. at 389. Prohibitions on verbal harassment
raise no First Amendment problems because ELCRA, like Title VII, seeks
to regulate the secondary effects of harassment � sex discrimination and
inequality in the workplace � rather than the communicative content of
the message.
As Justice Scalia explained in R.A.V.:
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, thereby extinguishing concerns about content
and viewpoint discrimination. Thus, for example, sexually derogatory
�fighting words,' among other words, may produce a violation of Title
VII's general prohibition against sexual discrimination in employment
practices. Where the government does not target conduct on the basis
of its expressive conduct, acts are not shielded from regulation merely
because they express a discriminatory idea or philosophy.
505 U.S. at 389-90 (statutory citations omitted); see also Roberts
v. U.S. Jaycees, 468 U.S. 609, 628 (1984) (�incidental abridgement
of . . . protected speech� is permissible as part of state regulation
designed to address �invidious discrimination� because, �like violence or
other types of potentially expressive activities that produce special
harms distinct from their communicative impact, such practices are
entitled to no constitutional protection�) (citation omitted).
Under Title VII, an employer is generally prohibited from
discriminating on the basis of sex in the terms and conditions of
employment. A sexually hostile work environment, including one that
is hostile primarily because of verbal harassment, is simply a form
of discriminatory working condition. Meritor Savings Bank v. Vinson,
477 U.S. 57, 66 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17,
19, 23 (1993). Title VII's and ELCRA's regulation of the speech that
constitutes verbal sexual harassment is incidental to this prohibition
of sex discrimination in working conditions. Accordingly, Title VII
and ELCRA do not prohibit verbal harassment because its content is
offensive or otherwise disfavored, but because, once it passes the
severe/pervasive threshold, it drives women and minorities out of the
workforce or forces them to work in inferior conditions. They are
therefore permissible under the First Amendment. See Marcy Strauss,
Sexist Speech in the Workplace, 25 Harv. C.R.-C.L. L. Rev. 1, 38-39
(1990) (�Although the state cannot constitutionally ban speech because
it advocates discrimination, it may be able to regulate speech because
the speech itself discriminates . . . . [W]hen that message causes
women to leave their jobs, or to suffer impediments at work that men
need not endure, that speech can be prohibited.�).
In this respect, Title VII and ELCRA are analogous to zoning ordinances
that regulate the operation of adult-oriented businesses. See, e.g.,
City of Renton v. Playtime Theatres, 475 U.S. 41, 54 (1986) (where City's
predominant concerns were with the secondary effects of adult theaters
that have �markedly different effects upon their surroundings,� not with
the content of adult films, and City was not interested in punishing
the content of the film, zoning ordinance requiring dispersement of
adult-only theaters did not violate First Amendment). ELCRA's and Title
VII's restrictions are comparable to the zoning ordinance in Renton,
which treated theaters specializing in adult films differently from
others, because they do not target particular ideas, and �extend[]
to messages that run the gamut from threats to professions of love
or longing to ridicule to assertions of hatred.� Fallon, supra, 1994
Sup. Ct. Rev. at 49.
A regulation is not subject to the strict scrutiny normally applicable
to restrictions on protected speech if it is simply a time, place,
and manner regulation, and not an outright ban. City of Los Angeles
v. Alameda Books, Inc., 122 S. Ct. 1728, 1739 (2002). Insofar as
they affect speech, ELCRA and Title VII are analogous to a time,
place, and manner regulation because they regulate verbal expression
in the workplace, but do not ban it altogether.<7> See Robinson,
760 F. Supp. at 1535 (�[T]he regulation of discriminatory speech in
the workplace constitutes nothing more than a time, place, and manner
regulation of speech.�); Baty, 172 F.3d at 1246 (agreeing with Robinson
court's reasoning).
ELCRA and Title VII do not prevent people from expressing their
viewpoints in a setting outside the workplace. Because Hill and Hopson
are free to �express� their �views� in other locations, during the
hours they are not at work, they have �reasonable alternative avenues
of communication.� Renton, 475 U.S. at 50.
3. Furthermore, because ELCRA and Title VII regulate only harassing
speech connected to the workplace, a nonpublic forum where employees
often have limited rights of expression, First Amendment protection
is less stringent. The degree of scrutiny to which a governmental
regulation of speech is subjected depends in part on the place where
the speech occurs. See Frisby v. Schultz, 487 U.S. 474, 479 (1988)
(�[t]o ascertain what limits, if any, may be placed on protected speech,
we have often focused on the place of that speech, considering the nature
of the forum the speaker seeks to employ�); R.A.V., 505 U.S. at 414 n.13
(White, J., concurring in the judgment)(�Although the First Amendment
protects offensive speech, it does not require us to be subjected to
such expression at all times, in all settings.�).
Here, as is typically the case, all the speech at issue occurred
in Burns' workplace. The workplace is not a forum that has enjoyed
heightened First Amendment protection, unlike public streets or parks,
which are seen as �the archetype of a traditional public forum.� Frisby,
487 U.S. at 480; see also ISCON v. Lee, 505 U.S. 672, 679 (1992) (a
traditional public forum is a property that has as a practical purpose
the free exchange of ideas). �[A]cts of expression which may not be
proscribed if they occur outside the workplace may be prohibited if they
occur at work,� Jenson, 824 F. Supp. at 884 n.89 (rejecting defendant's
First Amendment argument because defendant �fails to acknowledge that
Title VII � and [state equivalent] � is concerned with regulating the
workplace, not society generally�). See also Mary Becker, How Free is
Speech at Work? 29 U.C. Davis L. Rev. 815, 816 (1996) (�The American
workplace is not in general an arena of protected speech.�); Nadine
Strossen, The Tensions Between Regulating Workplace Harassment and the
First Amendment: No Trump, 71 Chi.-Kent L. Rev. 701, 706-07 (1995)
(�Far from being the quintessential �marketplace of ideas' in which
speech and counterspeech are freely bandied about, many workplaces are
highly regulated environments in which non-work-related speech is at
best discouraged, and at worst, banned or restricted�).
Employees have very limited free speech rights with respect to employer
curtailment of their speech at work. Public employees enjoy First
Amendment protection only where the subject of the expression is a
matter of public concern, and when the speech's relation to a public
concern outweighs its disruptive effect. See Pickering v. Bd. of Ed.,
91 U.S. 563, 572-73 (1968); Connick v. Meyers, 461 U.S. 138, 142 (1983);
Rankin v. McPherson, 483 U.S. 378, 384 (1987). When courts balance
employee interests in commenting on matters of public concern with
employer's interest in promoting efficiency, the government interest
typically carries more weight. See, e.g., Connick, 461 U.S. at 153;
Pickering, 91 U.S. at 568; Waters v. Churchill, 511 U.S. 661, 674
(1994); see also Amy Horton, Of Supervision, Centerfolds, and Censorship:
Sexual Harassment, the First Amendment, and the Contours of Title VII,
46 U. Miami L. Rev. 403, 423 (1992) (�An employee may not say anything
that her employer believes might disrupt the efficiency of delivery
of public services unless an overwhelming public interest is at stake,
unpolluted by any personal interest on the part of the employee.�).
The workplace is also unlike a typical public forum, due to the limited
opportunity afforded to a target of offensive speech to respond or
avoid the speech. The concept that, in the marketplace of ideas,
one should counter offensive speech with more speech<8> is infeasible
in the workplace. Furthermore, under the �captive audience doctrine,�
the �First Amendment permits the government to prohibit offensive speech
as intrusive when the �captive' audience cannot avoid the objectionable
speech.� Frisby, 487 U.S. at 484-85. Like individuals in their homes,
where the doctrine arose, employees are a captive audience. Employees
are economically dependent on their jobs and physically confined to a
particular work site. Both factors make it significantly more difficult
to walk away from harassment than would be the case in the outside world.
This doctrine should thus be extended to the workplace. See Robinson,
760 F. Supp. at 1535-36 (applying captive audience doctrine to workplace
sexual harassment); see also Fallon, supra, 1994 Sup. Ct. Rev. at 43
(�Not only is it typically infeasible to flee the workplace in order
to escape sexual harassment, most working people spend more hours per
week on the job site than anywhere except their homes � the place to
which the �captive audience' label has most regularly been applied.�).
Because Burns �worked within a small group of individuals and could
not avoid seeing either Hill or Hopson if she continued working on the
midnight shift,� Burns, 2000 WL 33403017, at *2, she could certainly
be said to be �captive.�
4. Finally, any incidental restriction of protected speech resulting
from enforcement of prohibitions against sexual harassment in the
workplace is justified by the government's compelling interest in
eradicating employment discrimination. See Roberts, 468 U.S. at 628
(�acts of invidious discrimination in the distribution of publicly
available goods, services and other advantages cause unique evils that
government has a compelling interest to prevent � wholly apart from the
point of view such conduct may transmit�); cf. Snell v. Suffolk County,
611 F. Supp. 521, 528 (E.D.N.Y. 1985) (�The workplace is different
because it is governed by Congress's mandate that discrimination in
employment will no longer be tolerated in this country.�). A regulation
that is based on such a compelling governmental interest may permissibly
restrict protected speech as long as the statute is narrowly tailored
to place the least possible burden on expression. Roberts, 468 U.S. at
628.
�A statute is narrowly tailored if it targets and eliminates no more
than the exact source of the �evil' it seeks to remedy.� Frisby,
487 U.S. at 485. The prohibitions on sexual harassment in Title VII
and ELCRA are narrowly tailored to accomplish the compelling goal of
eliminating discrimination in the workplace because they impose liability
only with respect to conduct that is severe or pervasive enough to
alter conditions of employment. Harris, 510 U.S. at 21 (�Conduct that
is not severe or pervasive enough to create an objectively hostile
or abusive work environment . . . is beyond Title VII's purview.�);
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)
(Title VII �forbids only behavior so objectively offensive as to alter
the �conditions' of the victim's employment�).
As the Commission has stated, Title VII does not serve �as
a vehicle for vindicating the petty slights suffered by the
hypersensitive.� EEOC Policy Guidance at 6689 (quoting Zabkowicz
v. West Bend Co., 589 F. Supp. 780, 784, (E.D. Wis. 1984)), available
at www.eeoc.gov/docs/currentissues.html. Instead, it prohibits
verbal or physical conduct or communication of a sexual nature only
�when (1) submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment, (2)
submission 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.� 29 C.F.R. � 1604.11(a);
see also M.C.L. � 37.2103(i)(iii) (harassment is unlawful where it
�substantially� interferes with employment).
To establish liability for sexual harassment under Title VII, a plaintiff
must show that �the workplace is permeated with �discriminatory
intimidation, ridicule, and insult' that is �sufficiently severe or
pervasive to alter the conditions of the victim's employment and create
an abusive working environment.'� Harris, 510 U.S. at 21. The same
standard has been applied to ELCRA. See Radtke, 442 Mich. at 385
(the essence of a hostile work environment action is that �one or more
supervisors or co-workers create an atmosphere so infused with hostility
toward members of one sex that they alter the conditions of employment
for them'�) (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897
(1st Cir. 1988)). This standard limits the statutory prohibition to
the �exact source of the �evil'� Title VII and ELCRA seek to eliminate:
sex-based inequality in the workplace.<9>
5. The Michigan Supreme Court also asked this Court to consider
whether basing liability on the facts of this case raises concerns of
�overbreadth� or �vagueness.� No such concerns are present. A statute
is invalid as overbroad if there is a substantial risk that it will
curtail protected speech as well as unprotected speech. See Osborne
v. Ohio, 495 U.S. 103, 112-113 (1990); New York v. Ferber, 458 U.S. 747,
773 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme
Court has consistently held that overbreadth analysis may be invoked to
invalidate a statute �only when the overbreadth of the statute is not
only real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep.� Broadrick, 413 U.S. at 615. The Supreme
Court has stated that it would invalidate a statute for overbreadth
�only as a last resort.� Id. at 613; Ferber, 458 U.S. at 769.
As discussed above, the terms of Title VII and ELCRA, as well as the
standards used to determine whether sexual harassment is prohibited,
do not present concerns of overbreadth because they narrowly focus the
governmental regulation on the problem of employment discrimination.
The finding of liability on the specific facts of this case does not
present overbreadth concerns. The harassing comments directed at Burns
took the form of curses and threats that drove her from the workplace;
they did not express a political viewpoint. Accordingly, the fact that
the defendant was found liable on the basis of these statements does
not suggest that application of ELCRA would present a substantial risk
of chilling protected speech.
A statute is impermissibly vague if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits, or if it authorizes or encourages arbitrary and
discriminatory enforcement. See Hill v. Colorado, 530 U.S. 703, 732
(2000). A statute that is unconstitutionally vague � because one cannot
determine what speech it proscribes � leads to overbroad enforcement,
the chilling of protected speech or activity. �To this extent, the
vagueness of a law affects overbreadth analysis . . . . [A]mbiguous
meanings cause citizens to steer far wider of the unlawful zone than if
the boundaries of the forbidden area were clearly marked.� Village of
Hoffman Estates v. Flipside, 455 U.S. 489, 495 n.6 (1982). Because of
the judicial assumption that an overbroad statute's very existence may
cause others not before the court to refrain from protected speech or
expression, an individual being prosecuted for speech or expressive
conduct may challenge the law on its face as overbroad if it reaches
protected expression even when that person's activities are clearly
unprotected by the First Amendment. Ferber, 458 U.S. at 769; Broadrick,
413 U.S. at 612.
As a general matter, ELCRA's and Title VII's prohibitions on sexual
harassment do not present vagueness concerns. The standard for
determining whether sexual harassment constitutes an actionable hostile
work environment �is not, and by its nature cannot be, a mathematically
precise test.� Harris, 510 U.S. at 22. Nonetheless, the standards in
the statutes, the EEOC guidelines, and applicable case law are clear
enough to make it unlikely that a reasonably informed person would
refrain from engaging in constitutionally protected speech out of fear
of incurring liability. While the exact contours of the prohibition of
sexual harassment are not clear, it has long been established that Title
VII does not constitute a "civility code." See Oncale, 523 U.S. at
80 (�We have never held that workplace harassment, even harassment
between men and women, is automatically discrimination because of sex
merely because the words used have sexual content or connotations.");
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("A recurring
point in these opinions is that �simple teasing,' offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the �terms and conditions of employment.'�
(internal citation omitted)); Meritor, 477 U.S. at 67 (�not all
workplace conduct that may be described as �harassment' affects a �term,
condition, or privilege' of employment within the meaning of Title VII�).
Accordingly, there is not a substantial risk that an employer in reaction
to Title VII or ELCRA would feel compelled to regulate its employees'
expression of opinions or other forms of speech that are protected
by the First Amendment. See Oncale, 523 U.S. at 80-81 (rejecting
notion that Title VII is hopelessly vague or confusing and trusting
that courts and juries are able to make common-sense determinations).
Juries are commonly entrusted with similar common-sense determinations
without vagueness concerns, including deciding whether certain speech,
depending on language and context, constitute a �threat� or �criminal
solicitation.� There is no reason to doubt courts' and juries' ability
to apply sexual harassment law to the facts before them.
CONCLUSION
For the foregoing reasons, we urge this Court to reject the argument
that the remarks that comprised Burns' hostile work environment claim
cannot form the basis for liability because they are protected speech
under the First Amendment, or that liability on these facts raises any
vagueness or overbreadth concerns.
Respectfully submitted,
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
JULIE L. GANTZ
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
___________________________________
ADELE RAPPORT
Regional Attorney
Detroit District Office
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
477 Michigan Avenue, Rm. 865
Detroit, MI 48226
May 31, 2002
CERTIFICATE OF SERVICE
I certify that two copies of the Commission's Brief as Amicus Curiae
was mailed first class, postage prepaid, this 31th day of May, 2002,
to the following counsel of record:
ATTORNEY FOR PLAINTIFF-APPELLEE LYNETTE BURNS:
Mary Katherine Norton
1000 Farmer Street
Detroit, MI 48226
ATTORNEY FOR DEFENDANTS-APPELLANTS CITY OF DETROIT ET AL.:
June Boyd
City of Detroit Law Department
1650 First National Building
Detroit, MI 48226
_____________________________
Adele Rapport
1 Compare M.C.L. � 37.2103(i)(iii)(sex discrimination includes
�unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct or communication of a sexual nature,� where �such
conduct or communication has the purpose or effect of substantially
interfering with an individual's employment�) with 29 C.F.R. � 1604.11(a)
(�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�).
2 Because the jury found for the plaintiff, we set forth the facts in
the light most favorable to her.
3 Michigan courts have looked to federal law for guidance in evaluating
state discrimination claims. See, e.g., Koester v. City of Novi, 458
Mich. 1, 13 (1998); Radtke v. Everett, 442 Mich. 368, 381-82 (1993).
4 To our knowledge, the state courts that have addressed constitutional
free speech defenses under comparable state anti-discrimination
provisions have also rejected them in the workplace context. See, e.g.,
Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 126 (Cal. 1999)
(racial harassment under California Fair Employment and Housing Act);
Sanchez v. Texas, 995 S.W.2d 677, 689 (Tex. Crim. App. 1999) (sexual
harassment provision of official oppression statute); Trayling v. Bd. of
Fire and Police Comm'rs, 273 Ill. App. 3d 1, 14 (Ill. App. Ct. 1995)
(sexual harassment under Title VII and Illinois Human Rights Act).
5 The harassment in this case was predominantly, but not solely, verbal.
The jury heard evidence that Hill sometimes blew in Burns' ear and put
his arm around her shoulders.
6 See Richard H. Fallon, Sexual Harassment, Content Neutrality, and the
First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 14 (1995)
(�[T]he set of speech acts that might plausibly be thought to constitute
sexual harassment can be arrayed along a spectrum, not all of which
could reasonably be thought to lie completely beyond First Amendment
concerns � even if some, most, or even all of those acts are ultimately
determined to be constitutionally regulable.�).
7 Like adult-business zoning regulations, Title VII and ELCRA �do[]
not appear to fit neatly into either the �content-based' or the
�content-neutral' category.� Renton, 475 U.S. at 929. See also Alameda
Books, 122 S. Ct. at 1744 (Souter, J., dissenting) (�While spoken of as
content neutral, [adult-business zoning] regulations are not uniformly
distinct from the content-based regulations calling for scrutiny that
is strict, and zoning of businesses based on their sales of expressive
adult material receives mid-level scrutiny, even though it raises a risk
of content-based restriction�); id. at 1741 (Kennedy, J., concurring)
(speech restriction that might be �content-based� but is aimed at
addressing the secondary effects of the speech �is not so suspect that
we must employ the usual rigorous analysis that content-based laws demand
in other instances�).
8 See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis,
J., concurring) (�If there be time to expose through discussion the
falsehood and fallacies . . . the remedy to be applied is more speech,
not enforced silence.�).
9 Sex-based comments amount to sexual harassment only if they are
unwelcome and create a discriminatory work environment. The First
Amendment does not protect a harasser's right to force sexually
offensive �expression� on an unwilling listener. See Meritor, 477
U.S. at 69 (�[t]he correct inquiry is whether respondent by her conduct
indicated that the alleged sexual advances were unwelcome�). And because
anti-harassment provisions such as ELCRA and Title VII are limited to
employment-related harassment, they attempt to regulate a limited arena
physically � just the workplace � and temporally � just the hours spent
at work.
�