Harassment Cases

Lisa Trinh vs. Gentle Communications, LLC, & another. No. 07-P-441. Middlesex. December 11, 2007. March 10, 2008. Present: Cowin, Brown, & Kafker, JJ. Practice, Civil, Judgment notwithstanding verdict. Employment, Sexual harassment, Discrimination, Constructive discharge. Anti-Discrimination Law, Sex, Employment, Damages. Damages, Under anti-discrimination law, Punitive. In an action brought by a plaintiff against her former employer and her former supervisor, alleging sexual harassment in employment, the trial court judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of compensatory damages against both defendants arising from the supervisor’s conduct, where the evidence at trial demonstrated that the supervisor’s remarks and actions were sufficiently severe and pervasive to support the jury’s findings of harassment and of vicarious liability on the part of the employer [373-374]; further, the award of punitive damages against the supervisor was both warranted and not excessive [375-376]. In a civil action brought by a plaintiff alleging sexual harassment in employment, the trial court judge did not err in granting the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of damages for lost income, where the plaintiff failed to present sufficient evidence to establish a constructive discharge. [374-375] In an action brought by a plaintiff against her former employer, alleging that the employer was liable for failing to take adequate remedial action after the plaintiff complained of sexual harassment by her supervisor, the trial court judge properly granted the employer’s motion for judgment notwithstanding the verdict, and correctly ruled that the jury lacked a factual predicate for assessing punitive damages against the employer directly, where the evidence presented at trial was insufficient to warrant a finding that the employer inadequately or inappropriately investigated the plaintiff’s claims of sexual harassment. [376-378] Civil action commenced in the Superior Court Department on October 30, 2000. The case was tried before Mitchell J. Sikora, Jr., J., and motions for judgment notwithstanding the verdict were heard by him. Joseph H. Reinhardt (James F. Champa with him) for the plaintiff. Heidi Goldstein Shepherd for the defendants. Samuel Tencer. Kafker, J. Lisa Trinh, a junior employee of Gentle Communications, LLC, doing business as Gentle Dental (Gentle), complained that the dentist in charge of its Brookline office, Samuel Tencer, sexually harassed her. The matter went to a jury, which found, on special questions, that (1) Tencer sexually harassed Trinh; (2) such harassment proximately caused damages of $20,000 for emotional injury and $20,000 in lost income or back pay; (3) Tencer was individually liable for a punitive award of $65,000; (4) Gentle was separately liable for Tencer’s sexual harassment because it knew of Tencer’s harassment and failed to take adequate remedial measures; (5) Trinh’s damages proximately related to Gentle’s separate tort were $20,000 in lost income and $20,000 in emotional injury; (6) Gentle was separately liable for a $1 million punitive award. The jury also determined that (1) neither Tencer nor Gentle retaliated against Trinh for presenting her complaint; (2) Tencer did not intentionally inflict emotional distress on Trinh; and (3) Tencer did not interfere with an advantageous business or employee relationship between Trinh and Gentle. Tencer and Gentle filed motions pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 402 (1998), for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or a remittitur. The trial judge allowed the motions for judgment n.o.v. in part, concluding that (1) there was no evidence that Trinh suffered lost income proximately caused by either Tencer or Gentle; (2) no evidence supported a finding of separate liability against Gentle; and (3) no evidence supported a punitive award against Gentle, which award was in any case grossly excessive. The judge denied the motion for judgment n.o.v. on the sexual harassment award and on the separate punitive damage award against Tencer. In accord with those rulings, the judge entered a judgment that awarded Trinh (1) $20,000 in compensatory damages jointly and severally against both Tencer and Gentle; (2) $65,000 in punitive damages against Tencer only; and (3) $30,592 as Trinh’s reasonable attorney’s fees against both Tencer and Gentle. The defendants appeal, and Trinh cross-appeals. We affirm. Factual background. We summarize the facts the jury could have found as follows. Gentle owns a number of dentists’ offices in the greater Boston area. In October of 1997, Trinh was hired by Gentle and was assigned to work in its Brookline office as a “care coordinator,” as part of what Gentle designated as a “pilot program.” The care coordinator’s role was to explain treatments recommended by the dentists to the patients, to determine how patients would pay, and to schedule the treatments. When Trinh began her employment, Gentle presented Trinh with a copy of Gentle’s written sexual harassment policy and had her sign it. The policy indicated that complaints about sexual harassment should be directed to Barry Bomfriend, Gentle’s chief operating officer, or Donna Simonds, its director of human resources. Trinh testified that she was not given time to adequately review the policy prior to signing it, nor was she given a copy. After her training, Trinh began work in the Brookline office at the beginning of December. Tencer had previously expressed skepticism with the idea of care coordinators, but agreed to participate in the pilot program. During the few months in which Trinh worked at the Brookline office, Tencer engaged in behavior that made her feel uncomfortable. Trinh testified that Tencer, on several occasions, made inappropriate sexual remarks to her. Tencer had, at one point, walked in on a conversation at the front desk where Trinh revealed to other coworkers that she was considering breast augmentation surgery. Tencer later brought up the surgery with her individually and asked her if he could see what her breasts looked like before the surgery. He commented on her clothes and body at work, and at one point walked into the lunchroom, looked at the plaintiff, and said, “I like to eat that too,” referring to Trinh. He also whistled at Trinh in the workplace, looked at her in a way that made her feel uncomfortable, and when he passed her in the hallways during work, he would brush against her. Finally, at one point Tencer leaned over Trinh while she worked at the front counter, and she testified that she could feel his penis against her back. Over the course of her employment in the Brookline office, Trinh mentioned her discomfort to three people: a care coordinator in Gentle’s Natick office, who had gone through training with the plaintiff; the Gentle employee who trained and supervised the care coordinator program; and a dentist at another Gentle location (a part owner who did not act as an officer of the company) whom she dated over the span of approximately two months while she worked in the Brookline office. Near the end of February, 1998, Trinh was notified that she was to be transferred to Gentle’s Cambridge office. On her second-to-last day in the Brookline office, Thursday, February 26, Trinh notified Kathy Circeo, the Brookline office administrator, of her complaints. The next day, Circeo called Simonds about the complaint. Simonds then conferred with Bomfriend and decided to investigate the allegations, although Trinh had not contacted either of them directly to relate the substance of her complaints. The following Monday, March 2, Simonds contacted Trinh, who was at her first day of work in the Cambridge office, and made an appointment to speak to her on Wednesday, March 4. On March 3, Simonds and Bomfriend went to the Brookline office and interviewed five employees there, including Tencer and Circeo. When interviewed, Tencer denied the harassing behavior and said that Trinh had dressed inappropriately for the office, although she had never been told during her employment at Gentle that her dress was inappropriate. When conducting the interviews, Simonds took handwritten notes and typed them afterwards. There were differences between the handwritten notes and the typed copies made afterwards; the typed versions lacked some details and contained other additional details not included in the handwritten notes. Each set of typed interview notes contained a signature line for the interviewee to attest that the notes were a truthful representation of the interview, but most of them were unsigned. On March 3, Trinh sent a letter to Bomfriend, saying that she was too “stressed out” to meet with Bomfriend and Simonds the next day. Bomfriend and Simonds then made an appointment to speak with Trinh at some point in the next week. In the meantime, Bomfriend and Simonds interviewed several employees at different Gentle offices, including, on March 5, the care coordinator in Natick to whom Trinh had detailed her complaints. Trinh testified that her conversation with her colleague in Natick convinced her that the investigation was biased against her. From that conversation, she got the impression that the investigation was focusing on her behavior at the office, rather than Tencer’s, and therefore that the investigation was aimed at trying to discredit her rather than to resolve her complaints fairly. On March 9, she wrote another letter to Bomfriend, stating that it was “impossible” for her to continue working at Gentle because “everyone in the company knows about your investigation and you have accused me of lying about the sexual harassment and of being immoral and illegal. The entire environment has become hostile towards me.” She then went on to state that she was terminating her employment with Gentle as of March 14, 1998. Simonds and Bomfriend went to the Cambridge office to speak with Trinh in person, but she ended the interview after a short period of time because, as she testified, she had to see a patient. At the end of the week, Trinh left her job at Gentle. Thus, Simonds and Bomfriend’s investigation concluded with none of their interview subjects having corroborated Trinh’s complaints and with Trinh herself having refused to participate in the internal investigation because of her belief that the investigation was biased against her. As they had found no information confirming Trinh’s complaints against Tencer during their interviews, and Trinh had declined the opportunities given to her to participate in the investigation, Simonds and Bomfriend concluded their investigation, and Tencer was not disciplined. Discussion. 1. Standard of review. In reviewing a trial judge’s decision on a motion for judgment n.o.v., “[w]e do not defer to the judge’s view of the evidence but examine the case anew, following the same standard the judge is obliged to apply.” MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996). That standard has been often articulated and provides that “the question before us is the same: that is, ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” ’ Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943).” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006). Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603 (2006). See Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005). We consider the claims against each of the defendants in turn. 2. Claims against Tencer. a. Compensatory damages. On appeal Tencer argues that the trial judge should have granted his motion for judgment n.o.v. or a new trial on the award for compensatory damages because Trinh failed to introduce sufficient evidence to sustain a sexual harassment claim against Tencer individually and, in addition, failed to meet the heightened burden for assessing punitive damages. Trinh’s case was based on the theory that Tencer’s harassment created a hostile work environment. The relevant portion of the statute defines sexual harassment as “verbal or physical conduct of a sexual nature when . . . such . . . conduct ha[s] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 151B, § 1(18), as amended by St. 1987, c. 473, § 2. In order to prevail on this theory, Trinh had to show that the ‘.‘conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). Conduct of a sexual nature may be considered sexual harassment under the statute, even absent sexual advances or requests for sexual favors. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). There was sufficient evidence at trial to support the jury’s verdict that Tencer sexually harassed Trinh. She testified that Tencer asked to see her breasts after the conversation concerning her breast augmentation surgery. Trinh testified that Tencer made other sexually suggestive comments, and that he rubbed against her in a way in which she could feel his penis against her. Tencer’s statements and actions were objectively offensive, and Trinh testified to her discomfort about the comments and physical contact. Tencer’s remarks and actions were sufficiently severe and pervasive to support the finding of harassment and the emotional distress damages that ensued therefrom. We find nothing in the record that compels us to disturb the trial judge’s decision to allow the jury’s verdict to stand in this regard. It was also appropriate to hold the employer vicariously liable for its manager’s sexual harassment and for the compensatory damages owed because of this harassment. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 166-167 (1987). b. Damages for lost income. The plaintiff complains that the judge should not have granted the defendants’ motion for judgment n.o.v. on the award of damages to her for lost income. The judge did not err in his ruling. Trinh was not fired from Gentle, but rather resigned. In these circumstances, she was required to show that she was constructively discharged from Gentle in order to recover lost income. A plaintiff establishes a constructive discharge by showing that “based on an objective assessment of the conditions under which the employee has asserted [s]he was expected to work, it could be found they were so difficult as to be intolerable.” GTE Prod. Corp. v. Stewart, 421 Mass. 22, 34 (1995). See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. at 606-607. In this case, Trinh was transferred out of the Brookline office, where the complained of harassment took place, and away from the one manager who had harassed her. She had worked in the Cambridge office for less than two weeks when she submitted her letter of resignation. Her pay had not been reduced, and her responsibilities at Cambridge were substantially the same as they had been in Brookline. There was no evidence that her managers in Cambridge took any adverse action toward her. Trinh’s testimony and her resignation letter do not establish a work environment in Cambridge so hostile that it would support a finding of constructive discharge. While participation in the company’s investigation of her sexual harassment complaint could be expected to be difficult, it would not constitute intolerable working conditions. Moreover, Trinh did not participate in the process after making the complaint. The trial judge properly ruled that Trinh had not presented sufficient evidence to establish a constructive discharge, and therefore she was not entitled to damages for lost income. c. Punitive damages. To assess punitive damages under G. L. c. 15IB, § 9, the plaintiff must show that the complained-of behavior is “not merely intentional and offensive.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 498 (2000). Rather, the conduct must be “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998), quoting from Restatement (Second) of Torts § 908(2) (1979). The conduct must warrant “condemnation and deterrence.” Bain v. Springfield, 424 Mass. 758, 767 (1997). We conclude that Tencer’s conduct could have been found outrageous given his sexual harassment of a junior employee, including asking to see her breasts and rubbing up against her so that she could feel his penis, and his position of responsibility as the dentist in charge of the local office. The punitive damages assessed against Tencer also were not excessive. We use a three-part test to analyze the reasonableness of a punitive damages award, scrutinizing “ ‘the degree of reprehensibility of the defendant’s conduct,’ the ratio of the punitive damage award to the ‘actual harm inflicted on the plaintiff,’ [and] a comparison of the ‘punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.’ ” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-827 (1997), quoting from BMW of N. Am. v. Gore, 517 U.S. 559, 575, 580, 583 (1996). Tencer’s conduct described above could have been found reprehensible. The ratio of less than four-to-one was within standards deemed appropriate. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single digit multipliers are more likely to comport with due process”); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 798 (2007) (five-to-one ratio affirmed). And the amount, under $100,000, has been found acceptable in similar contexts. See, e.g., Bain v. Springfield, 424 Mass. at 768; Beaupre v. Cliff Smith & Assocs., supra at 497-498. 3. Claims against Gentle, a. Compensatory damages. An employer may be found directly liable for discrimination under G. L. c. 15IB, § 4, if it is notified of sexual harassment in its workplace and fails to take adequate remedial action. College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 167. On appeal, Trinh argues that the jury verdict assessing direct liability, both compensatory and punitive, against Gentle was adequately supported, and therefore the judge’s grant of Gentle’s motion for judgment n.o.v. and, in the alternative, a new trial should be reversed. The trial judge, in his ruling on Gentle’s motion for judgment n.o.v., accurately delineated the factual basis for his decision to vacate the jury’s finding of direct liability against Gentle. Even drawing all reasonable inferences in Trinh’s favor, the evidence presented at trial was insufficient to warrant a finding that Gentle inadequately or inappropriately investigated the claims. Trinh did not complain to the officials identified in the sexual harassment policy. Once Donna Simonds, the director of human resources and one of the officials responsible for investigating sexual harassment, became aware of the complaints, she followed up immediately along with Barry Bomfriend, the chief operating officer of the company, and the other official responsible for sexual harassment investigations. Simonds and Bomfriend also responded appropriately, including questioning Trinh’s behavior. At least some inquiry into the plaintiff’s workplace behavior was relevant to the investigation, as determining whether the conduct at issue was unwelcome is a key component of a claim under the sexual harassment statute. See Ramsdell v. Western Mass. Bu

Olga St. Fleur vs. WPI Cable Systems/Mutron. Middlesex. November 5, 2007. January 4, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Federal Arbitration Act. Anti-Discrimination Law, Arbitration, Uniform Arbitration Act. Contract, Arbitration, Specific performance. Fraud. Statute, Federal preemption. Words, “Proceed summarily.” In the circumstances of an action to enforce an arbitration agreement, a Massachusetts court is not required to follow the procedure set forth in 9 U.S.C. § 4, the Federal Arbitration Act (Federal act), in the application of State-law contract defenses to determine the validity of the arbitration agreement, but rather may apply the provisions of the Massachusetts counterpart, G. L. c. 251, § 2, which requires an expedited evidentiary hearing on a dispute as to a material fact, a procedure which, by placing arbitration agreements on at least the same footing as other contracts, does not undermine the purposes of the Federal act and is thus not preempted by it. [348-354] In an action brought in Superior Court by an employee against her former employer, alleging claims of discrimination and harassment based on the employee’s race, sex, and national origin, the judge erred in denying the employer’s motion to dismiss the complaint and compel arbitration, brought on the ground that the employee had signed an agreement to arbitrate such claims, where the judge mistakenly concluded that the employer bore the risk of the employee’s ignorance of the nature and contents of the arbitration agreement and that the court would only enforce an arbitration agreement where “appropriate” [354-355]; further, where the judge failed to conduct an evidentiary hearing to determine the existence of such an agreement, in light of the employee’s production of evidence sufficient to sustain a claim of fraud in the inducement, this court remanded the matter to the Superior Court for such proceedings [355-356], In an action in Superior Court to enforce an arbitration agreement, a claim that the plaintiff was fraudulently induced to enter into the agreement, an issue that went solely to the making of the agreement to arbitrate, was one for a judge, and not an arbitrator, to resolve. [356] Civil action commenced in the Superior Court Department on February 3, 2005. A motion to compel arbitration and to dismiss the complaint was heard by Leila R. Kern, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph F. Hardcastle for the defendant. Howard I. Wilgoren for the plaintiff. The following submitted briefs for amici curiae: Beverly I. Ward for Massachusetts Commission Against Discrimination. Robert S. Mantell & Patti A. Prunhuber for Massachusetts Employment Lawyers Association & another. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan for New England Legal Foundation. Spina, J. WPI Cable Systems/Mutron (WPI) appeals pursuant to G. L. c. 251, § 18 (a) (1), from the denial of its motion to dismiss the discrimination complaint of Olga St. Fleur, a former employee, and to compel arbitration of that complaint, where the subject matter of her complaint was covered expressly by an arbitration agreement. We transferred the case to this court on our own motion. We now vacate the order denying WPI’s motion and remand this case to the Superior Court for a hearing to determine whether the parties entered into an agreement to arbitrate. Background. In July, 2000, WPI hired St. Fleur to work at its assembly plant in Chelsea. In February, 2002, she was asked to sign a document under conditions that are hotly disputed. St. Fleur presented an affidavit in which she asserts that the general manager of the WPI facility approached her in February, 2002. He asked her, “Can you please sign this for me?” “What is this?” she replied. He answered, “It is nothing. It is just something if we have a disagreement by signing this it tells you that you agree to sit down and discuss it with us.” The general manager gave her a single page to sign, and St. Fleur asked him where the rest of the document was. He said that the office manager was working on it, and he told St. Fleur, “Don’t worry about it. I will put the paper you signed with the rest of the papers that [the office manager] is working on.” He also told her, “The papers [the office manager] is working on say what I just told you,” and “Everybody is getting the same thing and you have to sign it.” The page that St. Fleur signed does not contain the word arbitration, and the general manager did not tell her that she was signing an arbitration agreement. WPI, on the other hand, presented an affidavit from Joseph Galli, St. Fleur’s supervisor at the time, asserting that, in September, 2001, he delivered to St. Fleur the company’s new arbitration policy, a memorandum explaining the new policy, and the arbitration agreement itself. Her supervisor also explained that St. Fleur should feel free to have a lawyer look at the agreement. WPI presented, in addition, an affidavit from Nicolletta Crowley, a WPI human resources administrator, asserting that most WPI employees signed the arbitration agreement in September, 2001. St. Fleur, however, did not. To employees who had not yet signed the arbitration agreement, WPI sent in February, 2002, a memorandum asking them either to sign the arbitration agreement or to confirm their refusal to sign the arbitration agreement. Two of St. Fleur’s colleagues confirmed their refusal to sign, but St. Fleur chose to sign the arbitration agreement. The arbitration agreement provides that the parties to the agreement waive all rights to a jury trial and agree to resolve through arbitration any claims against WPI arising out of the employee’s employment with or termination from WPI. The agreement specifically states that the parties are to resolve through arbitration any claims of discrimination or harassment based on race, sex, or national origin. In June, 2004, St. Fleur filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that, on account of her race, sex, and national origin, she had suffered discrimination and harassment at WPI. Specifically, she claimed that she was subjected to “harassment, disparate terms and conditions of employment, a hostile work environment, and wrongful termination.” MCAD dismissed her complaint for lack of probable cause. Thereafter, St. Fleur filed her complaint in the Superior Court alleging claims of discrimination and harassment based on her race, sex, and national origin. WPI moved to dismiss the complaint and compel arbitration or, alternatively, to stay proceedings (WPI’s motion) on the ground that St. Fleur had agreed to arbitrate her claims of employment discrimination and harassment. St. Fleur contends that the alleged arbitration agreement was unenforceable because her supervisor had induced her to sign the agreement by misrepresenting the nature and contents of the agreement. After a nonevidentiary hearing on WPI’s motion, a judge in the Superior Court denied the motion, apparently on the grounds that WPI bore the risk of St. Fleur’s ignorance and that enforcement of the arbitration agreement would not have been “appropriate.” At no time did the judge conduct an evidentiary hearing or trial to determine whether the parties entered into an agreement to arbitrate. Discussion. WPI seeks to dismiss or stay St. Fleur’s discrimination suit and compel arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (Federal Act). St. Fleur, on the other hand, argues that she can avoid submitting her claims to arbitration because she fraudulently was induced to sign her arbitration agreement. This dispute falls within the scope of the Federal Act because it centers on an agreement to arbitrate controversies arising from employment at WPI and because it is undisputed that WPI is involved in interstate commerce. See 9 U.S.C. §§ 1-2 (disputes involving interstate commerce fall within scope of Federal Arbitration Act); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). State courts have jurisdiction, concurrent with Federal courts, to enforce the Federal Act. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983). The Federal Act, 9 U.S.C. § 2, provides in part: “A written provision in. . .a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” By enacting this statute, Congress intended to put arbitration agreements on “the same footing as other contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974), quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 1, 2 (1924). That is, it sought “to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 (1985), and to prevent State courts from “singling out arbitration provisions for suspect status.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). “While the language [of the statute] might plausibly be read to support a broader construction, consideration of the legislative history reveals that what the Congress intended was merely to overrule by legislation long-standing judicial precedent, which declared agreements to submit judicable controversies to arbitration contrary to public policy . . . .” American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 816 (6th Cir. 1959). See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477 (1989). The Federal Act preempts State law only to the extent that it conflicts with the Federal Act. See id., quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (Federal Act preempts State law “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Societe Generale de Surveillance v. Raytheon European Mgt. & Sys. Co., 643 F.2d 863, 867 (1st Cir. 1981) (Federal Act preempts “only that state law inconsistent with its express provisions”). Similar to the Federal Act, the Massachusetts Act “expresses] a strong public policy favoring arbitration.” Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774 (1989), quoting Danvers v. Wexler Constr. Co., 12 Mass. App. Ct. 160, 163 (1981). The Massachusetts Act, G. L. c. 251, § 1, provides in part: “A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Both the Federal and State Acts deem arbitration agreements enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. 9 U.S.C. § 2. That is, courts may apply generally applicable State-law contract defenses — such as fraud, duress, or unconscionability — to determine the validity of an arbitration agreement. Doctor’s Assocs., Inc. v. Casarotto, supra at 687 (Federal Act). Miller v. Cotter, 448 Mass. 671, 677 (2007) (Massachusetts Act). See Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987). St. Fleur alleges that she fraudulently was induced to sign the arbitration agreement. Because fraudulent inducement is a generally applicable State-law contract defense, a judge applies those State-law contract principles to determine whether it should invalidate the agreement. See Doctor’s Assocs., Inc. v. Casarotto, supra; Perry v. Thomas, supra (Federal Act); Miller v. Cotter, supra at 677 (Massachusetts Act). The judge applies those principles whether acting under the Federal or Massachusetts Act. Id. The parties do not dispute that Massachusetts contract law applies in this case. The parties do, however, dispute the procedure that a State court must follow in its application of that substantive law. More specifically, the parties argue over whether State courts must apply the procedures set forth in 9 U.S.C. § 4 of the Federal Act and, if those provisions do not apply, what procedures the court must apply in their stead. We determine that a State court need not apply the procedures set forth in 9 U.S.C. § 4. Title 9 U.S.C. § 4 states in part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default ... the court shall hear and determine such issue” (emphasis added).. Title 9 U.S.C. § 4 sets forth a procedure that only Federal courts must apply. The statute provides that an aggrieved party may petition any “United States district court.” Thereafter, the statute sets forth the procedure “the” court must follow. In this context, “the” court refers most naturally to the only court thus far mentioned in the statute — namely, a United States District Court. See Pennsylvania Mut. Life Ins. Co. v. Henderson, 244 F. 877, 880 (D.C. Fla. 1917) (interpreting word “the” as equivalent of “such”); People v. Enlow, 135 Colo. 249, 262-263 (1957) (“ ‘the’ [has] a specifying or particularizing effect, opposed to the indefinite or generalizing force of ‘a’ or ‘an’ ”). That is, “the” court refers to Federal courts and not to State courts. A further indication that the statute refers only to Federal courts is the directive in § 4 that a party serve process according to the Federal Rules of Civil Procedure. No mention is made of State rules of civil procedure. Finally, it would be a strained interpretation of the text to suppose that 9 U.S.C. § 4 refers to State courts even though the only courts mentioned are Federal courts, the only rules mentioned are Federal rules, and there is no mention at all in 9 U.S.C. § 4 of State courts. Other courts have held that the procedures set forth in 9 U.S.C. § 4 apply to Federal courts alone. See Aaacon Auto Transp., Inc. v. Newman, 77 Misc. 2d 1069, 1072 (N.Y. Sup. Ct. 1974) (9 U.S.C. § 4 is “neither intended to apply to State courts nor [does it] by [its] terms apply to any but the United States District Courts”). See also Atlantic Painting & Contr. Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky. 1984) (“The federal Arbitration Act covers both substantive law and a procedure for federal courts to follow where a party to arbitration seeks to enforce or vacate an arbitration award in federal court [but the] procedural aspects are confined to federal cases” [emphasis in original]); Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 242 (2001) (“§ 4 of the [Federal Act] . . . expressly deal[s] only with the procedure to be followed by the federal courts”). Because the procedures in 9 U.S.C. § 4 do not apply to State courts, a State court may apply its own law. See Howlett v. Rose, 496 U.S. 356, 372 (1990) (States may apply “their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law”); Miller v. Cotter, supra at 678-679 (applying rules of Massachusetts Act because they did not stand as obstacle to purpose of Federal Act); Weston Sec. Corp. v. Aykanian, 46 Mass. App. Ct. 72, 75-77 (1998) (same). That is, because 9 U.S.C. § 4 does not apply in this situation, its Massachusetts counterpart, G. L. c. 251, § 2, applies unless that statute undermines the purposes of the Federal Act. See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477-478 (1989). We turn now, first, to consider what the provisions of G. L. c. 251, § 2, require and, second, to consider whether those provisions undermine the Federal Act’s purpose of placing arbitration agreements on an equal footing with other contracts. General Laws c. 251, § 2, provides in relevant part: “A party aggrieved by the failure or refusal of another to proceed to arbitration under an [arbitration agreement] may apply to the superior court for an order directing the parties to proceed to arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied.” The statute thus provides that a judge shall “proceed summarily” to determine the existence of the arbitration agreement. Although G. L. c. 251 does not provide a definition of “proceed summarily,” the statute is modeled after the Uniform Arbitration Act, which has been adopted by other States that have interpreted the phrase. Specifically, those courts have interpreted “proceed summarily” to mean that a judge determines whether there is a dispute as to a material fact; and, if there is not such a dispute, the judge resolves the issue as a matter of law; but, if there is such a dispute, the judge conducts an expedited evidentiary hearing on the matter and then decides the issue. Merrill Lynch Pierce Fenner & Smith, Inc. v. Falowski, 425 So. 2d 129, 130 (Fla. Dist. Ct. App. 1982); Bass v. SMG, Inc., 328 Ill. App. 3d 492, 496 (2002); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). The absence of a right to a jury trial in these circumstances is consistent with a party’s rights in nonarbitration contractual disputes. A motion to compel arbitration is in essence a suit in equity to compel specific performance of an arbitration agreement. See Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 411 (1996). Typically, there is no right to a jury trial for actions seeking specific performance of a contract or for actions challenging the existence of a contract on the ground of fraudulent inducement. Shikes v. Gabelnick, 273 Mass. 201, 205, 207 (1930) (judge can decide in his discretion to deny or compel specific performance on account of fraud); Shapira v. D’Arcy, 180 Mass. 377, 378-379 (1902) (no right to jury trial for specific performance). However, a judge, in her discretion, may grant a jury trial. Bergeron v. Automobile Mut. Ins. Co., 261 Mass. 409, 411 (1927). Where a party, under G. L. c. 251, § 2, seeks specific performance of an arbitration agreement or where a party is challenging the existence of an arbitration agreement on the ground of fraudulent inducement, there is no reason to believe the Legislature intended to create a right to jury trial where none existed before, especially where the statute makes no reference to trial by jury. The Massachusetts Act merely applies the same basic procedure to arbitration agreements that is applied to other contracts. The procedure does not single out arbitration agreements for less favorable treatment. Rather, it places arbitration agreements on at least the same footing as other contracts. General Laws c. 251, § 2, therefore does

ROBINSON v FORD MOTOR COMPANY Docket No. 271395. Submitted January 18, 2007, at Detroit. Decided October 30, 2007, at 9:05 a.m. Robert Robinson brought an action in the Wayne Circuit Court against his employer, the Ford Motor Company, and a fellow employee, Darren Smith, alleging, in part, sexual harassment in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq. Ford moved for summary disposition, alleging, in part, that sexual horseplay by Smith, a heterosexual male, directed against the plaintiff, a male, fell outside the definition of sexual harassment. The court, Wendy M. Baxter, J., denied the motion with regard to the alleged violation of the CRA. The Court of Appeals granted Ford’s application for leave to appeal from that part of the order. The Court of Appeals held: The court properly rejected Ford’s claims that the plaintiffs same-gender, hostile-work-environment claim is not cognizable under the CRA and that Smith’s conduct toward the plaintiff was not of a sexual nature. However, the court failed to address the threshold issue whether the plaintiff was harassed because of sex. The order appealed from must be affirmed, but the matter must be remanded to the trial court to address whether the plaintiff has presented a genuine and material issue regarding whether he was harassed because of sex. 1. The language of MCL 37.2202(l)(a), which prohibits discrimination because of sex in the terms and conditions of employment, does not exclude same-gender, sexual-harassment claims. 2. The CRA prohibits physical conduct or communication of a sexual nature that has the effect of interfering with an individual’s employment. MCL 37.2103(i)(¿¿¿). Actionable sexual harassment requires conduct or communication that inherently pertains to sex, but there is no requirement that such conduct or communication include proof of the harasser’s sexual desire. The plaintiff presented evidence to allow a reasonable trier of fact to find that some of Smith’s offensive conduct or communications inherently pertained to sex. 3. A plaintiff, in order to establish a claim of hostile-work-environment harassment, must demonstrate that the plaintiff belonged to a protected group, that the plaintiff was subjected to conduct or communication on the basis of sex, that the conduct or communication was unwelcomed, that the unwelcomed conduct or communication was intended to or did substantially interfere with the plaintiffs employment or created an intimidating, hostile, or offensive work environment, and respondent superior. The trial court assumed that there was sufficient evidence that Smith’s actions were motivated by sex merely because Smith’s conduct inherently pertained to sex. The matter must be remanded for a determination whether Smith’s conduct or communications constituted discrimination because of sex. The trial court, on remand, should address the following evidentiary routes that allow male plaintiffs to establish a hostile-work-environment claim based on same-gender harassment: the harasser making sexual advances is acting out of sexual desire; the harasser is motivated by general hostility to the presence of men in the workplace; or the plaintiff offers direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Affirmed but remanded for further proceedings. 1. Civil Rights — Sexual Harassment — Same-Gender Claims. The Civil Rights Act does not preclude same-gender, hostile-work-environment claims (MCL 37.2202[l][a]). 2. Civil Rights - Sexual Harassment - Words and Phrases — Sexual Nature. The Civil Rights Act prohibits physical conduct or communication of a sexual nature that has the effect of interfering with an individual’s employment; actionable sexual harassment requires conduct or communication that inherently pertains to sex, but proof of the harasser’s sexual desire is not required regarding conduct or communication of a sexual nature (MCL 37.2103[i]). 3. Civil Rights — Sexual Harassment — Hostile Work Environment. A plaintiff, in order to establish a claim of hostile-work-environment harassment, must demonstrate that the plaintiff belonged to a protected group, that he or she was subjected to unwelcomed conduct or communication because of sex, that the conduct or communication was intended to or did substantially interfere with the plaintiffs employment or created an intimidating, hostile, or offensive work environment, and respondeat superior (MCL 37.2103[i][¿¿¿]). Pitt, McGehee, Mirer, Palmer & Rivers, EC. (by Michael L. Pitt, Robert W. Palmer, and Beth M. Rivers), for Robert Robinson. Kienbaum Opperwall Hardy & Pelton, PL.C. (by Elizabeth Hardy, Patricia J. Boyle, and Julia Turner Baumhart), and Jennifer A. Zinn, for the Ford Motor Company. Before: DONOFRIO, RJ., and BANDSTRA and ZAHRA, JJ. Per CURIAM. Defendant Ford Motor Company (defendant) appeals by leave granted the trial court’s order denying its motion for summary disposition of plaintiffs claim alleging sexual harassment under the Civil Rights Act (CRA), MCL 37.2101 et seq. This case involves a claim of same-gender harassment. Plaintiff claims he was subjected to a sexually hostile work environment in violation of MCL 37.2103(i)(iii). We conclude that the trial court properly rejected defendant’s claims that (1) plaintiffs same-gender, hostile-work-environment claim is not cognizable under the CRA and that (2) the harasser’s conduct toward plaintiff was not of a sexual nature. However, we conclude that the trial court failed to address the threshold issue whether plaintiff was harassed because of sex. Accordingly, we affirm the order of the trial court, but we remand for the trial court to address whether plaintiff has presented a genuine and material issue regarding whether he was harassed because of sex. I. BASIC FACTS AND PROCEDURE Plaintiff alleges that a male coworker, defendant Darren Smith, sexually harassed him while they both worked in defendant’s manufacturing plant. Plaintiff knew that Smith was regularly involved in on-the-job antics with two coworkers, Eric Ward and Bruce Tofil. Smith, Ward, and Tofil made a game of catching each other off guard and hitting each other on the buttocks with paddles. They also threw gloves and snow at each other and squirted fire extinguishers at each other. In April 2001, Tofil left defendant’s employ, and Smith was reassigned to work with plaintiff installing truck hoods. Smith began to direct his antics toward plaintiff. Plaintiff alleges that between'2001 and 2003, Smith engaged in a variety of conduct unwelcomed by him and other employees that constituted sexual harassment. With regard to plaintiff, the alleged conduct included Smith’s slapping him on the buttocks, pinching his nipples, pulling down plaintiffs pants to expose his underwear, Smith’s exposing his testicles to another coworker while grasping plaintiffs hand and attempting to or actually making plaintiff touch them, and Smith’s placing his hands in plaintiffs pants and placing his finger between plaintiffs buttocks. Smith also allegedly offered to show plaintiff his penis and asked plaintiff about the size of plaintiffs penis. Additionally, Smith allegedly made comments about wanting to see plaintiffs “naked butt” in a vat of K-Y Jelly and wanting to “crack [plaintiffs] ass.” On several occasions, Smith told plaintiff, “You’re my bitch, I own your ass.” Plaintiff alleges that he suffered a breakdown in March 2003, after two consecutive days in which Smith digitally penetrated plaintiffs mouth. Specifically, plaintiff alleges that Smith jumped on his back and forced his fingers in plaintiffs mouth and down his throat while he was wearing a dirty glove. Plaintiff testified in his deposition that he could feel Smith’s erect penis on his back during one of these incidents. Plaintiff reported these and other incidents to his supervisor. Plaintiff brought this action alleging, in part, sexual harassment in violation of the CRA. Defendant moved for summary disposition, arguing that sexual horseplay by a heterosexual male directed against another male fell outside the statutory definition of sexual harassment. The trial court disagreed and denied defendant’s motion with regard to the alleged violation of the CRA. This Court granted defendant’s application for leave to appeal, limited to the issues raised in the application. In the application, defendant specifically claimed that “the Supreme Court would not recognize a same-sex hostile environment sexual harassment claim.” Defendant’s second claim on appeal is that “ [i]f a sexual harassment claim exists, plaintiff failed to present evidence of homosexual or otherwise inherently sexual conduct.” Defendant’s last claim is that “courts that have reviewed same-sex claims have required affirmative evidence that the alleged harasser is homosexual.” II. ANALYSIS A. STANDARD OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Defendant moved for summary disposition under MCR 2.116(C)(10). A motion under this subrule tests the factual sufficiency of the plaintiff’s complaint. Kraft v Detroit Entertainment, LLC, 261 Mich App 534, 539; 683 NW2d 200 (2004). The trial court must consider the affidavits, pleadings, depositions, admissions, and any other evidence submitted by the parties in a light most favorable to the nonmoving party. Id. at 539-540. Summary disposition should be granted if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Id. at 540; MCR 2.116(0(10) and (G)(4). B. SEXUAL HARASSMENT UNDER THE CRA Under the CRA, “[a]n employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL 37.2202(1)(a). MCL 37.2103(i) further provides, in pertinent part, that [discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: ■ft (Hi) The 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. [MCL 37.2103(i)(iii) (emphasis added).] Radtke v Everett, 442 Mich 368, 381; 501 NW2d 155 (1993) (sexual harassment that falls under MCL 37.2103[i][iii] is commonly labeled hostile-work-environment harassment). Defendant first claims that the trial court erred in recognizing a same-gender, hostile-work-environment claim under the CRA. This argument raises a question of statutory interpretation. When faced with questions of statutory interpretation, courts must discern and give effect to the Legislature’s intent as expressed in the words in the statute. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Where the language is unambiguous, it must be presumed that the Legislature intended the meaning clearly expressed, and no further judicial interpretation is permitted. Id. Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). Defendant correctly points out that the Michigan Supreme Court has not addressed the question whether same-gender, hostile-work-environment claims are recognized under the CRA. The United States Supreme Court addressed such claims under federal law in Oncale v Sundowner Offshore Services, Inc, 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 201 (1998). The Supreme Court summarized the facts of Oncale: In late October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U.S.A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. [Oncale, supra at 77 (citation omitted).] Oncale “presented] the question whether workplace harassment.. . violate[d] Title VTFs prohibition against ‘discrimination . . . because of. .. sex,’ 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex.” Id. at 76. The United States Supreme Court held: We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discrimination . . . because of... sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. [Id. at 79-80.] The CRA contains a phrase identical to that which was interpreted by Oncale under title VII. Specifically, MCL 37.2202(1)(a) prohibits, “discrimination]... because of... sex” in a “term” or “condition” of employment. The language of the CRA does not exclude same-gender harassment claims. Accordingly, we reject defendant’s claim that the CRA excludes same-gender, hostile-work-environment claims. Defendant next claims that the phrase “of a sexual nature” in MCL 37.2103(i) necessarily means behavior that inherently pertains to sexual relations; therefore, there can be no behavior “of a sexual nature” between members of the same sex where the perpetrator is heterosexual and the conduct does not involve homosexual advances or desire. This argument also raises a question of statutory interpretation. We begin our analysis by noting that the term “sexual harassment” is defined under the CRA to include any one of three different actions that have the “purpose or effect of substantially interfering” with one’s employment or create an “intimidating, hostile, or offensive” workplace. MCL 37.2103(i)(iii). These three actions are: (1) unwelcome sexual advances; (2) requests for sexual favors; and (3) other verbal or physical conduct of a sexual nature. MCL 37.2103(i). Clearly, unwelcome sexual advances and requests for sexual favors relate to the harasser’s sexual desire or gratification. Thus, a plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations must present some credible evidence that the harasser is motivated by sexual desire. However, the same cannot be said about the third type of action barred under the CRA — verbal or physical conduct “of a sexual nature.” Id. The CRA prohibits “physical conduct or communication of a sexual nature” that has the effect of interfering with an individual’s employment. MCL 37.2103(i)(iii) (emphasis added). In Corley v Detroit Bd of Ed, 470 Mich 274, 279; 681 NW2d 342 (2004), our Supreme Court construed the phrase “sexual nature” as used in MCL 37.2103(f). It held: “Sexual nature” is not defined in the statute. Where a term is not defined in the statute, we will review its ordinary dictionary meaning for guidance. “Sexual” is defined, in part, as “of or pertaining to sex” or “occurring between or involving the sexes: sexual relations. ” “Nature” is defined as a “native or inherent characteristic.” Utilizing these two commonly understood definitions, we conclude that actionable sexual harassment requires conduct or communication that inherently pertains to sex. [Emphasis in original; citations omitted.] The Supreme Court did not indicate that conduct or communication that inherently pertains to sex must also include proof of the harasser’s sexual desire. Accordingly, we will not read into MCL 37.2103(i) a requirement that is not expressly stated, i.e., a harasser’s sexual desire. Here, plaintiff presented sufficient evidence to allow a reasonable trier of fact to find that some of Smith’s offensive conduct or communications inherently pertained to sex. Plaintiff offered proof that Smith allegedly exposed his testicles and forced plaintiff to touch them, hit plaintiffs buttocks, exposed plaintiffs underwear, digitally penetrated plaintiffs buttocks, moved his hand between plaintiffs legs toward his testicles, squeezed plaintiffs nipples, threw pubic hair at plaintiff, rubbed plaintiffs personal property against his genitals, and pressed his erect penis on plaintiffs back while forcing his fingers into plaintiffs mouth. This conduct involves direct contact with sexual organs or sexual parts of the body accompanied by either express or implied references to sexual activity. Thus, we conclude plaintiff has presented sufficient evidence to allow a reasonable trier of fact to conclude that Smith’s conduct and communication inherently pertained to sex. C. BECAUSE OF SEX (ON REMAND) We ultimately address an argument that was not addressed by the trial court, but presented in the parties’ briefs and raised at oral arguments before this Court. In resolving defendant’s motion, the trial court failed to address the second element of a sexual harassment claim. It appears that the trial court assumed there was sufficient evidence that Smith’s actions were motivated by sex merely because Smith’s conduct inherently pertained to sex. “The error is in concluding that all harassment of a sexual nature amounts, ipso facto, to gender discrimination.” Equal Employment Opportunity Comm v Harbert-Yeargin, Inc, 266 F3d 498, 521 (CA 6, 2001). “This second element is derived from the language of MCL 37.2202(1), which prohibits an employer from discriminating against an employee ‘because of sex. Obviously, an employer cannot be said to have discriminated against an employee ‘because of sex unless, but for the fact of the employee’s sex, the employer would not have discriminated against the employee.” Haynie v Dep’t of State Police, 468 Mich 302, 308; 664 NW2d 129 (2003). The phrase “of a sexual nature,” which refers to the third element, is found within the statutory description of “[discrimination because of sex.” MCL 37.2103(f). As our Supreme Court observed, “[sjexual harassment is merely a subset of sexual discrimination.” Koester v City of Novi, 458 Mich 1, 11; 580 NW2d 835 (1998), citing MCL 37.2103(f), overruled in part on other grounds by Haynie, supra. See also Diamond v Witherspoon, 265 Mich App 673, 683; 696 NW2d 770 (2005). As a subset of sexual discrimination, plaintiff must nonetheless show that he was subjected to a sexually hostile workplace “because of sex.” MCL 37.2103(f). As this Court stated in Barbour v Dep’t of Social Services, 198 Mich App 183, 186; 497 NW2d 216 (1993), the CRA and the analogous provisions of title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq., require that sexual harassment be “gender-based.” This is consistent with the common understanding of the word “sex,” particularly in a legal context. The term, “sex,” is most commonly defined as, “either the female or made division of the species, esp. as differentiated with reference to the reproductive functions” and “the sum of t