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.