Paulette Fauceglia v. University of Southern California

RADTKE v EVERETT Docket No. 92582. Argued January 12, 1993 (Calendar No. 4). Decided June 2, 1993. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett, D.V.M., individually, and Clarke-Everett Dog and Cat Hospital, P.C., alleging sexual harassment by creating a hostile work environment in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., constructive discharge on the basis of sex, and assault and battery. The court, William R. Brown, J., granted summary disposition for the defendants, finding that because the hostile environment claim was based upon a single incident of sexual harassment, as a matter of law, it did not rise to the level of severity and persistence to permit recovery, dismissed the constructive discharge count because it was dependent upon finding a hostile work environment, and found that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred the assault and battery claim because of the failure to allege an intent to harm. The Court of Appeals, Neff, P.J., and Maher and Hood, JJ., reversed the civil rights claim, finding that under the reasonable woman standard a single incident could be sufficiently severe to support a finding of a hostile work environment, and concluded that, in this case, the totality of circumstances was sufficient to permit trial, reversed the dismissal of the constructive discharge claim, and reversed the assault and battery claim because the defendant was named individually as the perpetrator, making the wdca inapplicable (Docket No. 121611). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Levin, Brickley, Boyle, and Mallett, the Supreme Court held: References Am Jur 2d, Civil Rights §§ 154 et seq; Workers’ Compensation §§ 75, 76, 79. Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack. 49 ALR4th 926. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS sec. 2000e et seq). 78 ALR Fed 252. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act. A hostile work environment claim is actionable only when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. The Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. 1. The Michigan Civil Rights Act is aimed at the prejudices and biases borne against persons because of membership in certain classes, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. An employer may not discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of sex. Under the act, sexual discrimination is defined broadly to include sexual harassment. 2. To establish a prima facie case of a hostile work environment, an employee must have belonged to a protected group, must have been subjected to communication or conduct on the basis of sex, and must have been subjected to unwelcome sexual conduct or communication that was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and the employer must be liable under a theory of respondeat superior. Whether a hostile work environment existed is to be determined by whether a reasonable person, in the totality of the circumstances, would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. 3. The Civil Rights Act imposes liability whenever sexual harassment creates a hostile work environment, and a single incident may create such an environment. However, a plaintiff usually will be required to prove that the employer failed to rectify a problem after adequate notice and that a continuous or periodic problem existed or a repetition of an episode was likely to occur. 4. In this case, the plaintiff alleged a prima facie case of a hostile work environment. She is a member of a protected class (persons discriminated against on the basis of sex), was subjected to harassment on the basis of sex, and was subjected to unwelcome sexual conduct that a reasonable person would have perceived created a hostile work environment. In addition, because the employer was the perpetrator, the single incident was sufficient to satisfy a theory of respondeat superior and to permit a jury to determine whether the conduct was sufficient to have created a hostile work environment. 5. Because the plaintiff did not appeal the trial court’s application of the wdca to her claim in the Court of Appeals, and because she never requested permission to amend her complaint in the trial court, the issue whether the exclusive remedy provision of the wdca bars an alternative claim of assault and battery where the plaintiff fails to allege that the defendant intended to inflict an injury upon the plaintiff was not preserved for appeal. Affirmed in part and reversed in part. Justice Griffin, dissenting in part, stated that the cause of action for discrimination because of sex contemplated under subsection 103(h)(iii) of the Civil Rights Act requires more than the brief single incident alleged in-this case. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. An isolated sexual advance, without more, does not satisfy the requirement. The employer status of the individual defendant or the closely knit working environment in this case did not make the particular conduct more severe or pervasive. Although a separate claim of substantial interference with employment might have been asserted under subsection 103(h)(iii), because the plaintiff resigned rather than return to work, such a claim could be premised only on a theory of constructive discharge, an assertion severely undercut by the plaintiff’s deposition testimony. The trial court correctly ruled that the acts attributed to the defendant did not rise to the level of severity and persistence that would permit recovery under the act. 189 Mich App 346; 471 NW2d 660 (1991) affirmed in part and reversed in part. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Reasonableness Standard — Single Incident. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act; a hostile work environment claim is actionable only when the work environment is so tainted, in the totality of the circumstances, that a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment; although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may bé sufficient if severe harassment is perpetrated by an employer in a closely knit working environment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Workers’ Compensation — Assault and Battery — Exclusive Remedy — Failure to Allege Intent to Harm. The exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff (MCL 418.131; MSA 17.237[131]). Smith, Haughey, Rice & Roegge (by Mark D. Williams) for the plaintiff. Dykema, Gossett (by Seth M. Lloyd and Nancy L. Niemela) and Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison) for the defendants. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., and Dianne Rubin, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Patricia Bordman) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly and John H. Willems) for American Society of Employers, Motor Vehicle Manufacturers Association, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. Chiamp & Associates, P.C. (by Charlene M. Snow), for Women Lawyers Association of Michigan. Julie Kunce Field and Suellyn Scarnecchia for University of Michigan Women and the Law Clinic and Women Lawyers Association of Michigan. Stark & Gordon (by Sheldon J. Stark) for Michigan Trial Lawyers Association. Riley, J. At issue are the elements of a prima facie case of a hostile work environment under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We hold that a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Additionally, we hold that although a single incident of sexual harassment is generally insufficient to constitute a hostile work environment, a single incident may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. We also hold that the Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. Thus, we affirm the opinion of the Court of Appeals that plaintiff has alleged a prima facie case of a hostile work environment, albeit on different grounds, and we reverse the opinion of the Court of Appeals and reinstate the trial court’s order granting summary disposition regarding the assault and battery claim. i Plaintiff’s sexual harassment, constructive discharge, and assault and battery claims were summarily dismissed by the trial court pursuant to MCR 2.116(C)(8) and (10). The Court of Appeals reversed. Accordingly, we begin our analysis with an examination of the applicable standards for granting summary disposition. A MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8), therefore, determines whether the opposing party’s pleadings allege a prima facie case. Marrocco v Randlett, 431 Mich 700, 707; 433 NW2d 68 (1988). Hence, the court "does not act as a factfinder,” but "accepts as true all well-pleaded facts.” Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984). Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be valid. Macenas v Village of Michiana, 433 Mich 380, 387; 446 NW2d 102 (1989). While MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, MCR 2.116(0(10) tests the factual basis underlying a plaintiff’s claim. Velmer v Baraga Area Schools, 430 Mich 385, 389-390; 424 NW2d 770 (1988). MCR 2.116(0(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party. Stevens v McLouth Steel, 433 Mich 365, 370; 446 NW2d 95 (1989). Accordingly, this Court examines and recites the facts in the instant case in the light most favorable to plaintiff. B Plaintiff Tamara Radtke was employed as an unregistered veterinary technician for defendant Clarke-Everett Dog and Cat Hospital, P.C., beginning in January, 1984. The hospital is owned in equal shares by defendant Dr. Stuart Everett and Dr. James Clarke. As of May, 1988, her duties included supervising staff, assisting the doctors during surgery, scheduling, and performing minor janitorial tasks. She assisted each doctor nearly equally, and possessed a "good [working] relationship” with each. There were no incidents of sexual harassment before the date in issue. As commonly occurred, on Sunday, May 29, 1988, plaintiff was working alone with defendant Everett to provide weekend emergency veterinarian services. In her deposition plaintiff stated that after a lengthy day of work, she suggested that they take a break. Everett agreed. Plaintiff proceeded to the hospital’s lounge and poured them each a cup of coffee. She then relaxed on the couch, with her back leaning into its corner and her legs on the sofa. After finishing a few phone calls, Everett joined her and proceeded to sit next to her. Plaintiff, believing that Everett’s behavior was inappropriate, attempted to leave the couch "the minute he sat down.” Everett, however, physically restrained her by firmly placing his arm around her neck and holding her down. Plaintiff, both frightened and surprised by Everett’s behavior, described what followed during her deposition: I tried to pull my head up three times, and, on the third time, I realized he was not going to let me go. And then finally, when his arm relaxed, I sprung forward, and I told him, "You don’t want to do this.” Although plaintiff forcefully escaped his grip, Everett began to flatter her. Plaintiff rebuffed his newest advances by stating, "You don’t want to do this. I don’t want to do this. You’re married. I’m married.” Everett responded by caressing plaintiff’s neck. Again she protested, but he simply ignored her pleas. Indeed, he then attempted to kiss her by grabbing her neck and pushing his face towards hers. Plaintiff successfully pushed his face away, left the couch, and walked across the room. Plaintiff then stated that she wished to smoke outside, and encouraged Everett to accompany her in public, which he did. The working day was finished without incident. Plaintiff further stated when deposed that she did not know or could not know whether defendant was trying to hurt her, but she stated that he "would have or could have.” She acknowledged that he might have mistakenly believed she wished to kiss him and that he did not condition the terms or conditions of her employment upon the acceptance of his advances. That evening plaintiff discussed the incident with her husband, and she tendered her resignation, along with a list of requests, to Everett’s office the next morning. The following day, Dr. Clarke and plaintiff cursorily discussed the incident. Plaintiff also began psychological counseling that day. Although plaintiff suffered no physical injuries, she alleges severe emotional pain stemming from the incident. C In December, 1988, plaintiff filed a four-count civil suit against Everett and the hospital in the Grand Traverse Circuit Court. Plaintiff alleged that she was (1) sexually harassed in violation of the Civil Rights Act, (2) constructively discharged on the basis of sex, (3) the victim of assault and battery, and (4) denied access to her personnel files in violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The crux of plaintiff’s case is that Everett’s actions constituted sexual harassment because they created a hostile work environment thereby forcing her resignation. The Employee Right to Know Act count was dismissed by stipulation. In August, 1989, the trial court granted summary disposition regarding the remaining counts pursuant to MCR 2.116(C)(8) and (10). After reviewing plaintiff’s complaint and deposition, the court ruled that she. had failed to state a violation of the Civil Rights Act because her hostile environment claim was based upon a single incident of sexual harassment, which, as a matter of law, did "not rise to the level of severity and persistence which would permit recovery . . . .” Likewise, the court dismissed the constructive discharge count because it was dependent upon finding a hostile work environment. The court also ruled that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred plaintiff’s claim of assault and battery because she failed to allege that Everett intended to harm her. The Court of Appeals reversed on all counts. The Court, sua sponte, rejected its prior utilization of a reasonable person standard to determine whether a hostile work environment exists, and ruled: [A] female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. [189 Mich App 346, 355; 471 NW2d 660 (1991).] The Court then found that under the reasonable woman standard, a "single incident could be sufficiently severe under some circumstances to support a finding” of a hostile work environment. Id. at 356. The Court concluded that in the instant case, the totality of circumstances were sufficient to permit a trial regarding the issue of a hostile work environment. Id. at 356-357. Accordingly, the Court also reversed the trial court’s dismissal of the constructive discharge claim. Id. at 357. Furthermore, the Court reversed the dismissal of the assault and battery claim, holding that because it named Everett individually, plaintiff was not suing her employer but her perpetrator. Id. at 357-358. The Court reasoned, "[t]he wdca therefore is inapplicable to this claim and does not operate to bar plaintiff’s recovery.” Id. at 358. Leave to appeal was granted by this Court. D Defendants, joined by amici curiae, assert before this Court that (1) the reasonable person standard should be utilized to determine whether a hostile work environment existed, (2) a single incident is insufficient to establish a prima facie case of a hostile work environment, (3) constructive discharge did not occur, and (4) the wdca bars the alternative counts of assault and battery. Plaintiff, and other amici curiae, urge the contrary. Two amici curiae urge the elimination of any reasonableness standard, and at least one urges the adoption of a "reasonable victim” standard. n The Civil Rights Act "is aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). Accordingly, the act declares tha

RADTKE v EVERETT Docket No. 121611. Submitted November 7, 1990, at Grand Rapids. Decided May 20, 1991, at 9:15 a.m. Leave to appeal sought. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett and Clarke-Everett Dog and Cat Hospital, P.C., claiming, on the basis of a single incident, sexual harassment in the workplace, constructive discharge from her employment, and assault and battery. The court, William R. Brown, J., granted the defendants summary disposition with respect to the sexual harassment and constructive discharge claims on the basis that a single act would not support a finding of sexual harassment within the meaning of the Civil Rights Act, and with respect to the assault and battery claim on the basis that it was precluded by the exclusive remedy provision of the Workers’ Disability Compensation Act. The plaintiff appealed. The Court of Appeals held: 1. Because a standard which views sexual harassment of a female from the perspective of a gender-neutral "reasonable person” has a tendency to have a male bias, claims by women of sex discrimination in the workplace as a result of sexual harassment should be viewed from the perspective of a "reasonable woman.” Under the reasonable woman standard, an actionable claim within the meaning of the Civil Rights Act for sex discrimination caused by sexual harassment in the workplace is stated where a woman alleges conduct of a sexual nature which a reasonable woman would consider to be sufficiently severe or pervasive to alter her conditions of employment by substantially interfering with her employment or to create an intimidating, hostile, or offensive employment environment. Under certain circumstances, the offensive nature may be so severe that a single incident will be sufficient to support a finding of sexual harassment. Because a jury might find that the claimed incident constituted sexual harassment, it was error for the trial court to grant summary disposition of the sexual harassment and constructive discharge claims. References Am Jur 2d, Job Discrimination § 804. See the Index to Annotations under Reasonableness; Sex Discrimination. 2. The exclusive remedy provision of the Workers’ Disability Compensation Act does not bar the plaintiffs assault and battery claim, because it was brought against Dr. Everett individually, rather than against the employer, Clarke-Everett Dog and Cat Hospital, P.C. Reversed and remanded. 1. Civil Rights — Sex Discrimination — Sexual Harassment — Reasonable Woman Standard — Civil Rights Act. In an action for sex discrimination by a woman pursuant to the Civil Rights Act because of sexual harassment, the offensiveness of the claimed conduct should be viewed from the perspective of a "reasonable woman” rather than from that of a "reasonable person,” i.e., the severity or pervasiveness of the claimed conduct should be viewed from the perspective of the actual victim rather than a hypothetical gender-neutral person (MCL 37.2103[h]; MSA 3.548[103][h]). 2. Civil Rights — Sex Discrimination — Sexual Harassment — Hostile Environmental Workplace — Single Incidents — Civil Rights Act. A woman states an actionable claim under the Civil Rights Act of sex discrimination caused by hostile-environment sexual harassment where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment; the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct; under some circumstances, a single incident may be sufficient to establish a claim of sex discrimination caused by hostile-environment sexual harassment (MCL 37.2103[h]; MSA 3.548[103] M>. Menmuir, Zimmerman, Kuhn & Bearup (by Mark D. Williams), for the plaintiff. Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison), for the defendants. Before: Neff, P.J., and Maher and Hood, JJ. Hood, J. Plaintiff appeals as of right from a circuit court order granting summary disposition in favor of defendants. Plaintiff’s complaint alleged sexual harassment in violation of the Michigan Civil Rights Act (count i), constructive discharge (count ii), and assault and battery (count hi). Counts i and ii were dismissed by the trial court pursuant to MCR 2.116(C)(10), and count m was dismissed pursuant to MCR 2.116(C)(8). We reverse. Plaintiff began working for defendant Clarke-Everett Dog and Cat Hospital, P.C., as an unregistered veterinary technician in January 1984. Her employment required her to work occasional weekends and holidays with one of the two veterinarians. Because of her personal schedule, plaintiff often worked those days with defendant Everett. That was the case on May 29,1988. That Sunday proved to be busy at the hospital; however, plaintiff and Everett managed to take a break late in the day. While plaintiff was relaxing on the couch in the employee lounge, Everett sat down next to her and placed his arm around her neck. When plaintiff tried to get up, Everett restrained her. After three attempts, plaintiff finally freed herself and sat forward on the couch. Everett proceeded to flatter plaintiff as he moved closer to her. Everett began caressing plaintiff’s back and arms, even after she had indicated her displeasure and unease with his advances. According to plaintiff, Everett continued to caress her back, while moving his hand toward her breasts. He then placed his hand behind her neck and brought his face toward plaintiff’s face in an attempt to kiss her. Plaintiff was able to push Everett’s face away, went across the room, and accused him of wanting to play a "nasty game.” Rattled by the incident, plaintiff requested that they go outside. She did so because they would then be in public. Although plaintiff stayed to finish her shift, she felt compelled to terminate her employment the next day, particularly because she was scheduled to work again with Everett. Plaintiff alleged that when she notified Dr. Clarke of Everett’s conduct, he took no remedial measures and told her that women like her had to watch themselves around men because of their cute, bubbly personalities. In addition to ending her employment, plaintiff immediately sought counseling for the adverse effect the incident had on her psychological well-being. In December 1988, plaintiff instituted this action, alleging that she was the victim of unlawful sexual harassment and assault and battery and that, because of the hostile work environment created by Everett’s sexual advances, her termination of employment constituted a constructive discharge. Defendants moved for summary disposition, claiming that a single incident is not sufiicient to state a cause of action for sexual harassment resulting from a hostile work environment. Accordingly, defendants argued for dismissal of count ii, because the constructive discharge claim was predicated on a deficient sexual harassment claim. Lastly, defendants moved for dismissal of count hi, alleging that the Workers’ Disability Compensation Act (wdca) barred plaintiff’s assault and battery claim. In granting defendants’ motion, the trial court determined that even accepting as true all of plaintiff’s allegations, her claim of sexual harassment and constructive discharge must fail. Relying on Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), the trial court determined that a single act does not state a claim of hostile-environment sexual harassment. In addition, the court agreed with defendants that the wdca barred plaintiff’s assault and battery claim. i Plaintiff alleged that defendants violated §202 of the Michigan Civil Rights Act by discriminating against her on the basis of sex. The state Civil Rights Act defines this type of discrimination in § 103(h), MCL 37.2103(h); MSA 3.548(103)(h), which provides: Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment .... (iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment . . . environment. In her complaint, plaintiff alleges that Everett’s conduct substantially interfered with her employment and created a hostile work environment; therefore, we focus our analysis on the sufficiency of her claim under § 103(h)(iii). Michigan courts have frequently reviewed sexual harassment claims under the state Civil Rights Act with reference to the persuasive federal precedent developed under the analogous federal legislation, title VII of the Civil Rights Act of 1964. When examining claims of hostile-environment sexual harassment, the court may properly look to the guidelines promulgated by the Equal Employment Opportunity Commission. Meritor Savings Bank, FBS v Vinson, 477 US 57; 106 S Ct 2399; 91 L Ed 2d 49 (1986). The eeoc guidelines describe hostile-environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 CFR 1604.11(a)(3). We note that the language of this guideline is nearly identical to that of § 103(h)(iii) of the state Civil Rights Act quoted above. Title VII affords employees the right to work in an environment that is free from discriminatory intimidation, insult, and ridicule. Meritor Savings Bank, 477 US 65. However, not all harassment affects a "term, condition, or privilege” of employment within the meaning of title VII. In order to maintain a claim under title VII, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment. Id. at 67. See also Henson v City of Dundee, 682 F2d 897, 904 (CA 11, 1982). In Langlois, supra, this Court determined that the single incident experienced by the plaintiff was not sufficiently severe and pervasive to constitute the substantial interference required under the state Civil Rights Act. Defendants urge us to follow Langlois and the cases cited therein, and conclude that a single incident is not sufficient to state a claim of hostile-environment harassment under the state Civil Rights Act. In addition, defendants ask us to apply the "reasonable person” standard announced in Rabidue v Osceola Refining Co, 805 F2d 611 (CA 6, 1986), from which the totality of the circumstances should be viewed. We do not agree with the standards or principles announced in Rabidue and Langlois, and we choose not to follow them. In Rabidue, the Sixth Circuit Court of Appeals declined to find that a hostile environment was created where there was a display of posters of naked and partially dressed women and where male employees customarily referred to women by derogatory sexual names, referred to the plaintiff as "fat ass,” and specifically stated that "all that bitch needs is a good lay.” Over a strong dissent, the majority concluded that the remarks and posters did not seriously affect plaintiff’s psychological well-being. The court stated that the trier of facts was required to "adopt the perspective of a reasonable person’s reaction to a similar environment under essentially like or similar circumstances.” 805 F2d 620. A plaintiff could prevail only if a hypothetical reasonable person’s work performance was interfered with and the conduct seriously affected the psychological well-being of the reasonable employee. Id. Among the circumstances to be considered by the factfinder is "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction into its environs.” Id. However, we believe that in a sexual harassment case involving a woman, the proper perspective to view the offensive conduct from is that of the "reasonable woman,” not that of the "reasonable person.” Thus, the severity or pervasiveness of the conduct should be viewed from the perspective of the victim, not that of a hypothetical employee irrespective of gender. Ellison v Brady, 924 F2d 872, 878-879 (CA 9, 1991); King v Bd of Regents of University of Wisconsin System, 898 F2d 533, 537 (CA 7, 1990). We believe that a standard which views harassing conduct from the "reasonable person” perspective has the tendency to be male-biased and runs the risk of reinforcing the prevailing level of discrimination which the state Civil Rights Act and title VII were designed to eliminate. In such a case, harassers could continue to discriminate merely because such harassment was the norm at the workplace. See Ellison, supra at 878; Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). We believe that the adoption of the reasonable person standard, coupled with the consideration of the level of "obscenity” that pervaded the workplace before and after plaintiff’s arrival, strips the provisions of the state Civil Rights Act of their effect. In essence, the principles in Rabidue prevent the state Civil Rights Act from achieving its purpose of eliminating sexual harassment from the workplace and ensuring employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Accordingly, we adopt the "reasonable woman” perspective. This standard, which ensures a gender-conscious review of sexual harassment, will help enable women to participate in the work force on an equal footing with men, and prevent the trivializing of the effects of sexual harassment that has previously occurred under the gender-neutral "reasonable person” standard. Ellison, supra at 879, 880. By adopting a gender-conscious standard that views the harassment from the victim’s perspective, it is important to analyze and understand the different perspectives of men and women. See, e.g., Yates v Arco Corp, 819 F2d 630, 637, n 2 (CA 6, 1987); Lipsett v Univ of Puerto Rico, 864 F2d 881, 898 (CA 1, 1988); Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). For example, because of their historical vulnerability in the work force, women are more likely to regard a verbal or physical sexual encounter as a coercive and degrading reminder that the woman involved is viewed more as an object of sexual desire than as a credible coworker deserving of respect. Such treatment can prevent women from feeling, and others from perceiving them, as equal in the workplace. We hold, therefore, that a female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. Under this standard, the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct under the totality of the circumstances. Ellison, supra at 878; King, supra at 537. Accordingly, we hold that a single incident could be sufficiently severe under some circumstances to support a finding that a reasonable woman’s employment was substantially interfered with or that an intimidating, hostile, or offensive employment environment had been created. We believe that in some situations the mere presence of the harasser who has engaged in particularly offensive conduct can create a hostile work environment. We therefore reject the conclusions in Langlois that a single incident is insufficient, as a matter of law, to state a claim for hostile-environment sexual harassment. We must now turn to the specific case at hand and determine whether plaintiff’s complaint was properly dismissed. We are presented with a situation in which plaintiff, a married woman, often worked alone with defendant Everett, who is also married, in a small veterinarian hospital in a relatively small community. The acts complained of included repeated physical contact and restraint, verbal remarks of a sexual nature, and an admitted attempt for a romantic kiss. Further, when she informed Dr. Clarke of the incident, no remedial measures were taken, and plaintiff was "warned” that women like her had to be careful around men because of their cute, bubbly personalities. Under the totality of the circumstances, we cannot say as a matter of law that plaintiff’s reaction was idiosyncratic or hypersensitive, particularly where she was scheduled to work with Everett the very next day. Consequently, we reverse the trial court’s grant of summary disposition to defendants on count i of plaintiff’s complaint. Accordingly, count n of plaintiff’s complaint, which alleged constructive discharge arising from the creation of a hostile work environment and from Dr. Clarke’s comment and failure to take remedial measures, was likewise improperly granted and is reversed. See Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). ii Plaintiff’s complaint also alleged assault and battery. The trial court dismissed this claim, finding that it was barred by the Workers’ Disability Compensation Act. On appeal, plaintiff argues that the dismissal was improper where the court did not provide her an opportunity to amend her complaint as provided in MCR 2.116(I)(5) to allege that defendant intended her injuries. We find that summary disposition was improperly granted as a result of the trial court’s erroneous application of the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131). The wdca applies to bar claims brought by employees against their employers for injuries sustained in the course of work, unless such claims fall within the intentional tort exception to the exclusive remedy provision of the act. However, we have reviewed plaintiff’s complaint and note that the claim of assault and battery was brought against defendant Everett individually, and not against plaintiff’s employer, defendant Clarke-Everett Dog and Cat Hospital. Plaintiff is not suing her employer for the assault and battery, but rather the perpetrator, defendant Everett. The wdca therefore is inapplicable to this claim and does not operate to bar plaintiffs recovery. Accordingly, we reverse the grant of summary disposition of this claim. Reversed and remanded for proceedings consistent with this opinion. MCL 37.2101 et seq.; MSA 38.548(101) et seq. Plaintiffs fourth count, which alleged a violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.16(1) et seq., was dismissed with prejudice by stipulation of the parties and is not a subject of this appeal. Defendant Everett admitted that he did attempt to kiss plaintiff. In Langlois, the plaintiff based her claim of hostile-work-environment sexual harassment on a single incident that occurred while she worked at one of the defendant’s fast-food restaurants. The plaintiff was instructed by "first assistant” Ivan Forney to take a break, and he whispered to her, "Hi, baby, let’s have some fun.” Once on break, Forney again asked her if she wanted to "have some fun,” and moved his hips back and forth in a crude manner. He then placed his hand on her breast and grabbed her buttocks. The plaintiff then left the crewroo