MICHAEL LIND V CITY OF BATTLE CREEK
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 11, 2004
MICHAEL LIND,
Plaintiff-Appellant
v
No. 122054
CITY OF BATTLE CREEK,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
Plaintiff,
defendant
white
violated
37.2202(1)(a),
than
a
when
plaintiff,
to
the
it
the
police
officer,
Michigan
promoted
Civil
a
sergeant on the basis of race.1
Rights
black
supervisory
alleges
Act,
officer,
position
that
of
MCL
rather
police
The issue is whether such a
claim of "reverse discrimination" must satisfy standards
different
from
discrimination.
those
required
of
other
claims
of
Having granted leave to appeal and heard
argument, this Court concludes as follows:
1
On the basis of scores on written and oral
examinations and seniority, plaintiff was rated second
among the top five eligible officers and the black officer,
who was promoted, was rated fifth.
Pursuant to a
collective bargaining agreement, the city was permitted to
select any one of the top five scoring candidates.
(1)
MCL
37.2202(1)(a)
provides
that
“[a]n
employer
shall not . . . discriminate against an individual with
respect to employment . . . because of . . . race . . . .”
(2) MCL 37.2202(1)(a) draws no distinctions between
"individual" plaintiffs on account of race.
(3)
The
Court
of
Appeals,
in
reliance
on
Allen
v
Comprehensive Health Services, 222 Mich App 426, 429-433;
564 NW2d 914 (1997), held that a "majority" plaintiff in a
"reverse discrimination" case, in order to make a prima
facie
showing,
must,
obligations
of
cases,
present
also
in
“minority”
addition
to
plaintiffs
"background
satisfying
in
the
discrimination
circumstances
supporting
the suspicion that the defendant is that unusual employer
who discriminates against the majority . . . ."2
(4) Allen draws a distinction between plaintiffs on
account
of
race
under
MCL
37.2202(1)(a),
inconsistent with our Civil Rights Act.3
and
is
thus
Therefore, Allen
is overruled.4
2
Unpublished opinion per curiam, issued July 9, 2002,
p 2 (Docket No. 227874).
3
While Allen involved a gender discrimination, rather
than a race discrimination, claim, it held broadly that
"reverse discrimination" plaintiffs under the Civil Rights
Act must satisfy the "background circumstances" standard.
4
Because we overrule Allen, it is unnecessary to
address the additional question posed by this Court’s grant
order, i.e., whether Allen’s “background circumstances”
standard is consistent with the equal protection clauses of
2
In response to Justice Cavanagh’s dissent, we observe
that this opinion is short, not because we disagree with
the dissent concerning the significance of this issue, but
because Allen is so clearly contrary to the language of
Michigan’s Civil Rights Act.
We are uncertain how many
pages the dissent believes are required to explain that
“individual” means “individual.”
Further, we note that in
its much longer opinion, the dissent, unlike the majority,
never
actually
Court—whether
bothers
Allen’s
to
decide
“background
the
issue
before
circumstances”
this
standard
is consistent with Michigan’s Civil Rights Act.
Accordingly, we reverse the judgment of the Court of
Appeals
and
remand
this
case
to
the
circuit
court
for
further proceedings consistent with this opinion.5
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
the Michigan Constitution, Const 1963, art 1, § 2 ("No
person shall be . . . discriminated against . . . because
of . . . race . . . .") and the United States Constitution,
Am XIV, § 1 ("[N]or shall any State . . . deny to any
person . . . the equal protection of the laws."). That is,
because we conclude that applying different standards to
different racial groups in order to determine whether
discrimination has been established violates the Michigan
Civil Rights Act, we need not determine whether applying
different
racial
standards
also
violates
the
equal
protection clauses.
5
In response to Justice Kelly’s dissent, we note that
we are not concluding that plaintiff did or did not
establish a prima facie case of discrimination; rather, we
are simply concluding that the trial court applied the
wrong standard in determining whether plaintiff established
a prima facie case of discrimination.
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
MICHAEL LIND,
Plaintiff-Appellant
v
No. 122054
CITY OF BATTLE CREEK,
Defendant-Appellee.
_______________________________
YOUNG, J. (concurring).
I
fully
separately
decision
concur
to
in
in
the
majority
opinion,
note,
on
this
fiftieth
anniversary
of
Education,1
Brown
v
Bd
how
but
write
of
the
singular
and
troubling is the dissenting view of my two colleagues.
It is hard to reconcile the logic of the dissenters'
position when juxtaposed to the language of our Michigan
Civil Rights Act and our state constitution without recalling
Orwell's chilling refrain: “all [citizens] are equal, but
some [citizens] are more equal than others.”2
Fifty
years
after
the
United
States
Supreme
Court
declared in Brown that the government could no longer use
1
Brown v Bd of Education, 347 US 483; 74 S Ct 686; 98 L
Ed 873 (1954).
2
Orwell, Animal Farm (New York: New American Library,
1996), ch 10, p 133.
consideration of race to disadvantage any of its citizens,
our two dissenting colleagues have announced precisely the
contrary position.
Our dissenting colleagues have advocated
that the judicial branch of government require persons of one
race to bear a higher burden of maintaining an employment
discrimination case than persons born of another race.
This is a concept worth repeating for emphasis, for no
citizen of this state should miss the import of the dissents’
view.
Our
dissenting
colleagues
maintain
that,
under
a
statute that explicitly prohibits employment discrimination
"because of" race, some Michigan citizens must bear a higher
burden to maintain such a lawsuit precisely because of their
race.
Not
only
does
the
dissents'
position
constitute
an
offense against the very protections our Civil Rights Act
provides, our dissenting colleagues are conspicuously silent
about
the
constitutional
implications
of
a
governmental
policy that places higher burdens on one set of citizens
because of their race.
Const
1963,
art
1,
The Michigan Equal Protection Clause,
§
2,
unlike
the
federal
counterpart
contained in the Fourteenth Amendment, explicitly prohibits
discrimination on the basis of race:
"No
person
shall
be
denied
the
equal
protection of the laws . . . because of . . . race
. . . ."
2
I do not challenge the good intentions of my dissenting
colleagues;
I
do
challenge
their
Orwellian
racial
preferences.
Robert P. Young, Jr.
3
policy
S T A T E
O F
M I C H I G A N
SUPREME COURT
MICHAEL LIND,
Plaintiff-Appellant,
v
No. 122054
CITY OF BATTLE CREEK,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I must dissent, not only from the majority’s holding,
but also from Justice Young’s assertion that we should turn
a blind eye to racism.
How I wish we all could live in
Justice Young’s utopian society where all races are treated
equally, but I cannot ignore reality.
look
beyond
the
surface
appeal
I urge the reader to
of
Justice
Young’s
simplistic argument and examine not only the text, but also
the context of the Civil Rights Act.
It is with regret
that I acknowledge the relevance today of Clarence Darrow’s
closing
argument
Sweet.1
In
1
at
the
1926
discussing
the
trial
of
tragedy,
Detroiter
injustice,
Henry
and
Mr. Sweet was on trial for firing a fatal shot into a
crowd of white people who were attempting to drive AfricanAmericans from their homes in “white neighborhoods.” He
was acquitted.
oppression faced by African-Americans, he stated:
law has made him equal, but man has not.
“’The
And, after all,
the last analysis is what has man done?—and not what has
the law done?’”
Peterson, ed, A Treasury of the World’s
Great Speeches (New York: Simon and Schuster, Inc, 1965), p
740.
This still rings true today.
Without any discussion of the relevant case law, this
Court
today
Services,
overrules
222
Mich
App
Allen
426;
v
564
Comprehensive
NW2d
914
Health
(1997).
The
cursory nature of the majority opinion shows a complete
lack of respect for the importance of today’s decision and
the impact it will have on civil rights.
The majority overrules Allen because that case draws a
distinction between plaintiffs on the basis of a minority
class characteristic or trait, while the text of Michigan’s
Civil
Rights
Act
does
not.
Because
today’s
decision
perverts the purpose of the Civil Rights Act and ignores
precedent from this Court and the United States Supreme
Court, I must respectfully dissent.
I. FACTS
AND
PROCEEDINGS
Because the majority opinion omits the relevant facts
and circumstances, I provide them here.
male,
filed
this
discrimination
Plaintiff, a white
complaint
following
the
promotion of a minority male to the position of sergeant at
2
the
Battle
Creek
Police
Department.
The
procedure
for
promotions requires candidates to score at least seventy
percent
on
a
written
examination
and
to
successfully
complete an oral examination.
Candidates are ranked on the
basis
on
of
their
performance
these
examinations
and,
pursuant to a collective bargaining agreement, defendant
may choose any of the five top candidates from the list.
Plaintiff and the minority candidate who was awarded the
sergeant’s position in question were both in the top five
on the eligibility list; plaintiff was ranked second at the
time of the promotion and the minority candidate was ranked
fifth.
At the close of discovery, defendant filed a motion
for summary disposition pursuant to MCR 2.116(C)(10).
The
trial court applied the background circumstances test from
Allen and granted defendant’s motion.
motion
for
reconsideration
affirmative
action
plan.
plaintiff’s
motion
for
after
Plaintiff filed a
learning
The
trial
reconsideration,
of
the
court
city’s
denied
finding
the
affirmative action plan was never implemented by the city,
and, even if it had been in place, it was not applicable to
decisions pertaining to promotions.
3
Plaintiff appealed and the Court of Appeals affirmed
the trial court’s grant of summary disposition.2
The Court
of Appeals applied the test from Allen and agreed with the
trial
court
evidence
to
defendant
that
plaintiff
create
was
an
the
failed
issue
of
unusual
to
provide
fact
employer
sufficient
regarding
who
whether
discriminates
against the majority.
Plaintiff appealed to this Court and we granted leave,
directing
the
“background
parties
to
circumstances”
address
test
whether
is
the
Allen
consistent
with
Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq.,
and, if so, whether it violates the Equal Protection Clause
of
the
Michigan
Constitution.
Constitution
or
the
United
States
468 Mich 869 (2003).
II. STANDARD
OF
REVIEW
This Court stated the applicable standard of review in
Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515
(2001), in which we applied the test from McDonnell Douglas
Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668
(1973), to a racial discrimination claim:
We review de novo a trial court’s decision
on a motion for summary disposition.
A motion
for
summary
disposition
brought
under
MCR
2.116(C)(10) tests the factual support of a
2
Unpublished opinion per curiam, issued July 9, 2002
(Docket No. 227874).
4
claim.
After reviewing the evidence in a light
most favorable to the nonmoving party, a trial
court may grant summary disposition under MCR
2.116(C)(10) if there is no genuine issue
concerning any material fact and the moving party
is entitled to judgment as a matter of law.
Smith v Globe Life Ins Co, 460 Mich 446, 453; 597
NW2d 28 (1999).
III. ANALYSIS
Michigan’s CRA, at MCL 37.2202(1), provides that “[a]n
employer
shall
not
.
.
.
(a)
discriminate
against
an
individual with respect to employment . . . because of
. . . race . . . .”
This language mirrors Title VII of the
federal Civil Rights Act of 1964, which reads in pertinent
part:
It shall be unlawful employment practices
for an employer . . . (1) . . . to discriminate
against any individual with respect to his
compensation, terms, conditions or privileges of
employment, because of such individual’s race
. . . . [42 USC 2000e-2(a).]
In some discrimination cases, there is direct evidence
of racial bias.
But in most discrimination cases, there is
no direct evidence.
Recognizing this, the United States
Supreme Court developed the McDonnell Douglas framework for
examining discrimination claims where direct evidence of
racial bias is lacking.
Under
first
create
the
offer
a
a
McDonnell Douglas, supra.
McDonnell
prima
presumption
Douglas
facie
of
case
test,
of
plaintiff
must
discrimination.
To
discrimination
a
a
plaintiff
must
present evidence “(i) that he belongs to a racial minority;
5
(ii) that he applied and was qualified for a job for which
the employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; and (iv) that, after
his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s
qualifications.”
McDonnell Douglas, supra at 802.
Once
the plaintiff has created a presumption of discrimination,
the
burden
presumption
then
shifts
by
showing
to
the
that
defendant
there
was
to
rebut
that
a
legitimate,
nondiscriminatory reason for the employment action.
In Hazle, this Court applied the above framework to a
racial discrimination claim filed pursuant to the CRA.
The
plaintiff in Hazle was required to present evidence that
(1) she belong[ed] to a protected class, (2) she
suffered an adverse employment action, (3) she
was qualified for the position, and (4) the job
was given to another person under circumstances
giving
rise
to
an
inference
of
unlawful
discrimination. [Hazle, supra at 463.]
In
applying
recognized
the
that
McDonnell
varying
Douglas
facts
in
framework,
this
Court
discrimination
cases
require courts to tailor the McDonnell Douglas framework to
“fit the factual situation at hand.”
Hazle, supra at 463 n
6.
Strict application of the McDonnell Douglas framework
would preclude all reverse discrimination claims without
6
direct
evidence
majority
of
plaintiff
discriminatory
cannot
prove
bias.
that
he
Because
belongs
a
to
a
protected minority and because the United States Supreme
Court has recognized that the federal civil rights act is
not limited to minorities,3 courts have adapted the first
prong
of
the
McDonnell
discrimination claims.
Douglas
test
for
reverse
However, the United States Supreme
Court has not addressed the test to be used for reverse
discrimination claims and there is no consensus among the
federal
circuit
McDonnell
courts
Douglas
test
of
appeals
should
be
regarding
adapted
how
for
the
reverse
discrimination claims.
There
are
three
federal circuits.
general
approaches
followed
by
the
The approach followed by a majority of
the circuits is the “background circumstances” test, which
requires
a
majority
plaintiff
to
show
background
circumstances that support the suspicion that the defendant
is
the
majority.
unusual
employer
who
discriminates
against
the
This approach is followed by the United States
Courts of Appeals for the District of Columbia, and the
Sixth, Seventh, and Eighth circuits.
Parker v Baltimore &
Ohio R Co, 209 App DC 215; 652 F2d 1012 (1981); Murray v
3
McDonald v Santa Fe Transp Co, 427 US 273, 278-279;
96 S Ct 2574; 49 L Ed 2d 493 (1976).
7
Thistledown Racing Club, Inc, 770 F2d 63, 66-68 (CA 6,
1985); Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801
(CA 6, 1994); Mills v Health Care Service Corp, 171 F3d
450, 457 (CA 7, 1999); Duff v Wolle, 123 F3d 1026, 10361037 (CA 8, 1997).
majority
plaintiff
class.”
This
The second approach only requires a
to
prove
approach
Eleventh circuits.
is
that
he
is
followed
a
by
member
the
of
Third
“a
and
Iadimarco v Runyon, 190 F3d 151, 163
(CA 3, 1999); Wilson v Bailey, 934 F2d 301, 304 (CA 11,
1991).
The third approach allows a majority plaintiff to
state a prima facie case in one of two ways, by using the
“background
circumstances”
test
or
by
showing
“indirect
evidence sufficient to support a reasonable probability,
that but for the plaintiff’s status [as a member of the
majority]
the
challenged
plaintiff . . . .”
Circuit
in
would
have
favored
the
Notari v Denver Water Dep’t, 971 F2d
585, 589 (CA 10, 1992).
Fourth
action
a
This test was developed by the
traditional
discrimination
case
and
applied by the Tenth Circuit in the reverse discrimination
context.
Holmes v Bevilacqua, 794 F2d 142, 146 (CA 4,
1986); Notari, supra.
A. THE “BACKGROUND CIRCUMSTANCES” TEST
The “background circumstances” test was created by the
Court
of
Appeals
for
the
District
8
of
Columbia
Circuit
because
the
McDonnell
United
Douglas
States
Supreme
factors
have
Court
be
to
noted
that
the
adjusted
to
fit
varying factual scenarios and because strict application of
the framework would eliminate all reverse discrimination
claims.
Parker,
652
F2d
1017.
Under
the
“background
circumstances” test a majority plaintiff claiming reverse
discrimination can meet the first prong of establishing a
prima facie case “when background circumstances support the
suspicion that the defendant is that unusual employer who
discriminates
Generally,
against
“background
the
majority.”
circumstances”
Id.
can
at
be
220.
shown
by
evidence indicating that the employer has some reason or
inclination
to
discriminate
against
the
majority
or
by
evidence indicating that there is something suspect about
the
particular
discrimination.
case,
which
raises
an
inference
of
See Harding v Gray, 9 F3d 150 (DC Cir,
1993).
B. THE “MEMBER
Some
courts
have
OF
A CLASS” APPROACH
criticized
the
“background
circumstances” test and have applied their own adaptations
of
the
followed
McDonnell
by
essentially
the
Douglas
Third
eliminates
Douglas framework.
framework.
Circuit
the
and
first
the
prong
The
adaptation
Eleventh
of
the
Circuit
McDonnell
This adaptation was first applied by
9
the Eleventh Circuit in Wilson, in which the court altered
the first prong of the McDonnell Douglas test by requiring
the plaintiff to prove that he belonged to “a class,” not a
protected class or a minority class, simply a class.
same
standard
Iadimarco.
was
applied
by
the
Third
The
Circuit
in
The Third Circuit, held that
a plaintiff who brings a “reverse discrimination”
suit under Title VII should be able to establish
a prima facie case in the absence of direct
evidence
of
discrimination
by
presenting
sufficient evidence to allow a reasonable fact
finder to conclude . . . that the defendant
treated plaintiff “less favorably than others
because of [his] race, color, religion, sex, or
national origin.”
Furnco [Constr Co v Waters,
438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957
(1978)]. [Iadimarco, supra at 163.]
C.
THE NOTARI ALTERNATIVE
The Fourth Circuit and the Tenth Circuit apply yet
another
variation
of
the
McDonnell
reverse discrimination claims.
Notari,
supra
presumption
at
of
589.
Douglas
framework
to
See Holmes, supra at 146;
This
discrimination
test
acknowledges
implicit
in
the
McDonnell
Douglas, but allows a reverse discrimination plaintiff to
prove
either
that
support
plaintiff’s
background
a
status
circumstances
reasonable
as
a
or
inference
member
of
specific
that,
the
challenged decision would not have been made.
10
facts
but
for
majority,
the
IV. CONCLUSION
The diversity of opinion among the federal circuits is
evidence of the difficulty and complexity of this issue,
yet the majority feels compelled by the text of Michigan’s
Civil Rights Act to dismiss this issue with no analysis of
the relevant case law.
Justice
Young
actually
are
to
is
The text of the act also compels
assert
that
tantamount
to
viewing
things
discrimination.
as
they
Today’s
majority and Justice Young both fail to acknowledge the
historical
passed,
context
as
well
discrimination
in
which
as
rooted
the
the
in
Civil
pervasive
that
historical
Rights
and
Act
was
continuing
context.
The
majority remands this case to the circuit court with no
guidance
other
than
the
fact
that
circumstances” test should not be used.
the
I respectfully
dissent.
Michael F. Cavanagh
11
“background
S T A T E
O F
M I C H I G A N
SUPREME COURT
MICHAEL LIND,
Plaintiff-Appellant,
v
No. 122054
CITY OF BATTLE CREEK,
Defendant-Appellee.
_______________________________
KELLY, J. (dissenting).
I
write
agree
fully
separately
supporting
an
with
to
Justice
state
affirmance
my
of
Cavanagh’s
dissent.
additional
reasons
for
disposition
for
summary
I
defendant.
Plaintiff Failed to Establish a Prima Facie Case
Under
any
employment
discrimination
failed to establish a prima facie case.
test,
plaintiff
Defendant had
discretion to choose one of the candidates on the promotion
list and had an established practice of not necessarily
promoting people in the order they appeared on the list.
Defendant
attributes
candidate
was
that
to
not
plaintiff
the
employee
required
to
alleges
made
who
was
in
consider
him
fact
a
those
superior
promoted.
Plaintiff did not rebut defendant’s asserted reliance on
the
promoted
employee’s
maturity
and
sense
of
service.
Defendant was not required to forgo subjective criteria in
making the employment decision, especially considering the
critical
role
that
police
officers
fill
in
society.
Plaintiff failed to rebut defendant’s race-neutral reasons
for
its
employment
sustain
his
decision.
burden
Plaintiff’s
entitled
defendant
failure
to
to
summary
disposition.
I
disagree
background
with
the
circumstances
majority’s
test
of
rejection
Allen.
of
Allen
the
v
Comprehensive Health Services, 222 Mich App 426; 564 NW2d
914 (1997).
plaintiff’s
In addition, I note that, even absent Allen,
claim
must
fall
because
plaintiff
failed
to
refute defendant’s legitimate nondiscriminatory basis for
promoting another candidate.
The Background Circumstances Test
Should Not Be Discarded
The fact that Michigan’s Civil Rights Act1 creates no
distinction based on a person's status as a member of the
"majority" or the "minority" does not justify discarding
the background circumstances test.
consistent
with
the
purpose
of
retained.
1
MCL 37.2101 et seq.
2
Because it is entirely
the
act,
it
should
be
The
majority's
analysis
suggests
that
this
case
involves a simple issue of the proper interpretation of §
202 of the civil rights act.2
act
does
not
address
the
However, the language of the
question
presented
here:
what
evidence must be presented to establish a prima facie case
of discrimination.
This
Court
decisions.
grappled
with
the
question
in
earlier
See, e.g., Lytle v Malady (On Rehearing), 458
Mich 153, 172-178; 579 NW2d 906 (1998) (opinion by Weaver,
J.); Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d
586 (1986).
It determined that, where there is no direct
evidence
impermissible
of
bias,
a
prima
facie
case
of
employment discrimination can be established through the
burden-shifting
framework
in
McDonnell
Douglas
Corp
v
Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
The background circumstances test is a modification of
the McDonnell Douglas test.
2
The rationale for the test was
That section, MCL 37.2202, provides in relevant part:
(1) An
following:
employer
shall
not
do
any
of
the
(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.
3
first articulated by the District of Columbia Circuit Court
of Appeals in Parker v Baltimore & Ohio R Co, 209 US App DC
215; 652 F2d 1012 (1981).
The Allen Court adopted it as
its own, concluding that it was an appropriate modification
of the McDonnell Douglas test.
The
reverse
background
circumstances
discrimination
situations
and
cases
different
involve
underlying
traditional discrimination cases.
its
base
that
the
test
hostile
acknowledges
different
prejudices
that
factual
than
do
The test recognizes at
discrimination
present
in
McDonnell Douglas is not typically directed at members of
the majority.
Allen, supra at 431-432.
I agree with the
following reasoning from Allen that quotes Parker, supra:
“The original McDonnell Douglas standard
required the plaintiff to show ‘that he belongs
to a racial minority.’ Membership in a socially
disfavored group was the assumption on which the
entire McDonnell Douglas analysis was predicated,
for only in that context can it be stated as a
general
rule
that
the
‘light
of
common
experience’ would lead a factfinder to infer
discriminatory motive from the unexplained hiring
of an outsider rather than a group member.
Whites are also a protected group under Title
VII, but it defies common sense to suggest that
the promotion of a black employee justifies an
inference of prejudice against white co-workers
in our present society.” [Allen, supra at 431432, quoting Parker, supra at 220.]
The majority's rationale in overruling the background
circumstances test is not in keeping with the progeny of
4
McDonnell
Douglas.
In
mechanically
applying
the
plain
language doctrine of statutory interpretation, the majority
subverts
the
purpose
intent in writing it.
of
the
act
and
the
Legislature's
They were to prevent discrimination
against a person because of that person's membership in a
certain class and “to eliminate the effects of offensive or
demeaning stereotypes, prejudices, and biases.”
Radtke v
Everett, 442 Mich 368, 379; 501 NW2d 155 (1993), quoting
Miller v CA Muer Corp, 420 Mich 355, 363; 362 NW2d 650
(1984).
In our society, demeaning acts of prejudice directed
against
whites
Historically,
racial
have
because
whites
oppression,
members
conducted
in
of
have
their
are
uncommon.
suffered
not
race
from
pervasive
discrimination,
of
minority
1990
found
and
races.
that
stigmatization
A
national
prejudice
continues to be relatively rare.
as
survey
against
whites
Only seven percent of
whites interviewed claimed to have experienced any form of
racial discrimination.
Schuck, Affirmative action: Past,
present, and future, 20 Yale L & Pol'y R 1, 67 (2002).
Conversely,
with
respect
to
racial
minorities,
“race
unfortunately still matters.” Grutter v Bollinger, 539 US
306; 123 S Ct 2325, 2341; 156 L Ed 2d 304 (2003).
5
The existence of this crucial distinction between the
treatment of the majority and of the minority supported the
Allen
Court's
test.
adoption
of
the
background
circumstances
Common experience in Michigan does not lead to the
conclusion
that,
when
an
adverse
employment
decision
is
made regarding a white employee, it is based on race.
As
a
consequence,
I
would
uphold
the
background
circumstances test adopted in Allen and affirm the decision
of the lower courts.
Marilyn Kelly
6
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