LULA ELEZOVIC V FORD MOTOR CO
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
LULA ELEZOVIC,
Plaintiff-Appellant,
FILEDDDAnd
FILED JUNE 1, 2005
LULA ELEZOVIC,
Plaintiff-Appellant,
and
JOSEPH ELEZOVIC,
Plaintiff,
v
No. 125166
FORD MOTOR COMPANY and DANIEL P.
BENNETT,
Defendants-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, C.J.
At issue in this case is (1) whether the Michigan
Civil Rights Act (CRA)1 provides a cause of action against
an
individual
agent
of
an
employer
and
(2)
whether
plaintiff’s employer, Ford Motor Company, was entitled to a
1
MCL 37.2101 et seq.
directed verdict in plaintiff’s sexual harassment lawsuit
against it.
We hold that an agent may be individually sued under §
37.2202(1)(a)2
of
the
CRA.
Thus,
we
overrule
Jager
v
Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652
NW2d
503
(2002),
because
it
held
to
contrary,3
the
and
reverse the Court of Appeals judgment in favor of Daniel
Bennett that followed Jager.
We also hold, consistently with the lower courts, that
Ford was entitled to a directed verdict.
Thus, we affirm
the trial court and Court of Appeals judgments in favor of
Ford.
I. Facts and Proceedings Below
Plaintiff filed a lawsuit in November 1999 pursuant to
the CRA against Ford Motor Company and Daniel Bennett, a
2
MCL 37.2202(1)(a) provides:
An 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.
3
Jager had concluded that “a supervisor engaging in
activity prohibited by the CRA may not be held individually
liable for violating a plaintiff's civil rights." Id.
2
supervisor at Ford’s Wixom assembly plant where she worked.
As relevant here, her claim was that she had been sexually
harassed as a result of a hostile work environment.4
The
CRA allows such a lawsuit against an employer.5
Plaintiff’s
lawsuit
named
Bennett
as
an
individual
defendant consistently with the then-controlling case of
Jenkins
v
Southeastern
Michigan
Chapter,
American
Red
4
set forth in Radtke v Everett, 442 Mich 368, 382NW2d 155 (1993), the five elements necessary to
a prima facie case of sexual harassment based on
work environment are:
(1)
the employee belonged to a protected group;
As
383; 501
establish
a hostile
(2)
the employee was subjected to communication
or conduct on the basis of sex;
(3)
the employee was subjected
sexual conduct or communication;
to
unwelcome
(4) the unwelcome sexual conduct or communication
was intended to or in fact did substantially
interfere with the employee’s employment or
created an intimidating, hostile, or offensive
work environment; and
(5)
respondeat superior. [Emphasis added.]
See also Chambers v Trettco, Inc, 463 Mich 297, 311;
614 NW2d 910 (2000). Respondeat superior liability exists
when an employer has adequate notice of the harassment and
fails to take appropriate corrective action. Id. at 312.
5
M Civ
Harassment.
JI
105.10,
Employment
3
Discrimination—Sexual
Cross, 141 Mich App 785; 369 NW2d 223 (1985),6 which held
that individual supervisors could be liable under the CRA.7
Regarding the specifics in her complaint, plaintiff
alleged that, while she was on the job in the summer of
1995, Bennett exposed himself to her while masturbating and
requested she perform oral sex.
after
that
he
repeatedly
Further, she claimed that
continued
to
harass
her
by
grabbing, rubbing, and touching his groin and licking his
lips and making sexually related comments.
Before
limine
to
criminal
exclude
misdemeanor
exposure.
occur
trial,
on
Plaintiff,
defendants
from
filed
evidence
conviction
of
a
an
joint
motion
unrelated,
Bennett
for
in
prior
indecent
Defendants pointed out that the incident did not
Ford
property
however,
and
argued
involved
that
the
non-Ford
indecent
employees.
exposure
conviction was evidence of a scheme or plan Bennett had of
exposing himself to women and that it provided notice to
6
Jager overruled Jenkins while plaintiff’s appeal was
pending in the Court of Appeals.
7
The CRA states that an “employer” includes an “agent”
of the employer.
MCL 37.2201(a) provides:
“‘Employer’ means a person
who has 1 or more employees, and includes an agent of that
person.” (Emphasis added.)
MCL 37.2103(g), in turn, provides: “‘Person’ means an
individual, agent, association, [or] corporation . . . .”
4
Ford
that
Bennett
engaged
in
inappropriate
sexual
acts.
The trial court ruled that the indecent exposure conviction
was inadmissible with regard to Bennett under MRE 404(b)(1)8
because it was not offered for any purpose other than to
show that he had a propensity to expose himself.
The court
also held it was inadmissible with regard to Ford pursuant
to
MRE
4039
because
any
probative
value
would
be
substantially outweighed by the danger of unfair prejudice.
The case was tried before a jury for three weeks.
Plaintiff testified consistently with the allegations in
her complaint against Bennett.
8
While it was uncontested
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person
in order to show action in conformity therewith.
It
may,
however,
be
admissible
for
other
purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of
mistake or accident when the same is material,
whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to
the conduct at issue in the case.
9
MRE 403 provides:
Although relevant, evidence may be excluded
if
its
probative
value
is
substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.
5
that she had not filed a formal written complaint of sexual
harassment
pursuant
to
Ford’s
antiharassment
policy,
plaintiff attempted to establish that Ford was otherwise
aware, or on notice, of the sexual harassment for several
reasons.
She
claimed
that
she
told
two
first-line
supervisors (friends of hers who were under Bennett in the
chain of command) that Bennett had exposed himself to her,
but admitted that she had pledged them to secrecy.
She
also introduced two letters her psychologist had written to
the Wixom plant physician, one indicating that in his view
plaintiff was descending into mental illness “[d]ue to the
harassment she perceived from Mr. Bennett” and a second
stating
that
plaintiff
with Dan Bennett.”
letter
from
the
continued
“to
feel
uncomfortable
These letters were offered with a third
same
psychologist
to
the
Wixom
plant
manager regarding complaints against a different coworker
in which it was said “there has been harassment going on
for the past year and a half at her Wixom plant job.”
Also
introduced was testimony from an employee to a Ford Labor
Relations Department representative to the effect that the
employee would remain on medical leave until someone did
something
about
Bennett.
Finally, reference was made to a letter from
plaintiff’s
the
attorney
situation
(her
between
son-in-law)
6
to
plaintiff
the
Ford
and
Labor
Relations Department in which he asserted he might take
legal action “to insure that our client [plaintiff] is not
subjected to working in a hostile environment.”
At the close of plaintiff’s proofs, defendants filed a
joint motion for a directed verdict, arguing that plaintiff
had not presented a prima facie case against them.10
Ford
emphasized that plaintiff had not established that it had
notice of the alleged sexual harassment by Bennett and,
thus, it could not be held liable for any improper acts by
him.
The
trial
advisement,
cases
to
with
the
court
took
defendants
jury.
the
joint
continuing
Bennett
testified
to
motion
under
present
their
that
he
had
not
sexually harassed the plaintiff and that her claims were
false.
Ford presented evidence showing that the only time
plaintiff had ever filed a sexual harassment complaint was
in 1991, involving a UAW committeeman, and that none of the
several grievances and complaints plaintiff filed against
Bennett
had
mentioned
regard
to
Bennett,
shift
changed
from
sexual
her
harassment.
complaints
days
to
10
Rather,
concerned
afternoons
having
and
with
her
disputes
MCR 2.515 provides:
“A party may move for a
directed verdict at the close of the evidence offered by an
opponent.”
7
regarding overtime.
She also filed a complaint alleging
that a female coworker had physically threatened her.
Upon the close of defendants’ proofs, the trial court
granted directed verdicts to the defendants.
The trial
court held that plaintiff had failed to establish a prima
facie
case
of
sexual
harassment
with
regard
to
either
defendant and, in particular, found that Ford could not be
liable
because
it
had
no
notice
of
Bennett’s
alleged
harassment.
Plaintiff, asserting that she had established a prima
facie case against Bennett and Ford, appealed to the Court
of Appeals.
That Court, however, affirmed the orders of
the trial court in a published opinion.11
In ruling for
Bennett, the majority in Elezovic relied on the then-recent
holding in Jager, supra at 485, that “a supervisor engaging
in
activity
individually
rights.”
prohibited
liable
for
by
the
CRA
violating
a
may
not
be
plaintiff's
held
civil
The Jager Court had reached its conclusion by
relying largely on federal court holdings that under Title
VII of the federal civil rights act, the federal analogue
11
Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d
776 (2003).
8
to our CRA, there is no individual liability.12
While it
was obligatory that the majority in Elezovic follow Jager
pursuant to MCR 7.215(J)(1), the majority indicated at the
same time that, but for that court rule, it would have
reached the opposite result.13
It was the majority’s view
that Jager was wrongly decided simply because it was not
consistent with the actual language of our CRA, which it
concluded made agents individually liable.
Moreover, it
believed Jager was inconsistent with Chambers v Trettco,
Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as
recognizing
that
an
individual
may
be
held
liable
for
sexual harassment under the CRA.14
12
The Jager panel noted that its conclusion that
individuals could not be sued under our CRA was consistent
with federal court rulings such as Wathen v Gen Electric
Co, 115 F3d 400 (CA 6, 1997), in which the Sixth Circuit
Court of Appeals determined, consistently with numerous
other federal courts of appeals, there was no individual
liability under Title VII of the federal civil rights act.
13
Under MCR 7.215(J)(1) a panel of the Court of
Appeals must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or
after November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special panel of the
Court of Appeals.
The judges of the Court of Appeals were polled
pursuant to MCR 7.215(J), but a conflict resolution panel
was not convened because a majority of the judges opposed
convening such a panel. 259 Mich App 801 (2003).
14
In making this point, the majority noted that
Chambers held that certain language in the CRA “‘allows
(continued…)
9
With
Court
regard
of
to
Appeals
the
directed
rejected
verdict
plaintiff’s
for
Ford,
the
claim
that
her
evidence regarding notice had been sufficient to enable her
to reach the jury.
The Court held that plaintiff's report
of Bennett's conduct to her supervisors did not constitute
actual notice to Ford because of her request at the same
time
that
this
information
not
be
conveyed
supervisor or other appropriate persons.
to
their
Elezovic v Ford
Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003).
As
for the letters that had been sent to Ford, the Court of
Appeals concluded that these also did not provide notice
because,
importantly,
none
of
them
referred
to
sexual
conduct.
The Court held that this fact, when viewed in the
context that plaintiff’s previous harassment complaints had
not been sexual in nature, but were explicitly nonsexual
concerning Bennett and others (with the exception of the
1991 complaint against a UAW committeeman that plaintiff
did not rely on as part of her case), meant Ford would not
reasonably have been put on notice.
the
Court
also
affirmed
the
trial
Id. at 195.
court’s
Finally,
decision
to
(…continued)
this Court to determine whether the sexual harasser's
employer, in addition to the sexual harasser himself, is to
be held responsible for the misconduct.’
Chambers, supra
at 320 (emphasis in original).” Elezovic, supra at 201.
10
exclude
evidence
conviction.
regarding
Bennett’s
indecent
exposure
It was the Court’s conclusion that plaintiff
failed to establish that the evidence was offered for a
proper purpose because Bennett's act of indecent exposure
outside
sexually
the
workplace
harassing
was
an
not
sufficiently
employee
in
to
workplace
the
similar
to
establish a common plan, scheme, or system.
Id. at 206.
The Court further concluded that the trial court had not
abused
its
discretion,
concerning
defendant
Ford,
in
holding that the probative value of this evidence would
have been substantially outweighed by the danger of unfair
prejudice.15
Id. at 207-208.
Plaintiff applied for leave to appeal in this Court,
and we granted leave to appeal and directed the parties to
include
among
engaging
in
the
issues
activity
briefed
prohibited
by
whether
the
a
supervisor
Michigan
Civil
Rights Act, MCL 37.2101 et seq., may be held individually
liable for violating a plaintiff's civil rights.
470 Mich
892 (2004).
15
That is, the marginally probative evidence could be
given undue or preemptive weight by the jury.
11
II. Standards of Review
We
review
de
novo
the
question
whether
our
CRA
authorizes a cause of action against an individual agent
for workplace sexual harassment because it is a question of
law.
Morales v Auto-Owners Ins Co (After Remand), 469 Mich
487, 490; 672 NW2d 849 (2003).
In reviewing the statute,
if its language is clear, we conclude that the Legislature
must have intended the meaning expressed, and the statute
is enforced as written. Turner v Auto Club Ins Ass'n, 448
Mich 22, 27; 528 NW2d 681 (1995).
We
also
regarding
a
review
motion
de
for
novo
a
a
trial
directed
court's
verdict,
ruling
viewing
the
evidence and all legitimate inferences in the light most
favorable to the nonmoving party.
Sniecinski v Blue Cross
& Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186
(2003); Meagher v Wayne State Univ, 222 Mich App 700, 707708; 565 NW2d 401 (1997).
Finally,
the
decision
whether
to
admit
or
evidence is reviewed for an abuse of discretion.
exclude
People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
III. Individual Agent Liability Under the CRA
The CRA prohibits an employer from discriminating on
account
of
sex,
which
includes
sexual
harassment.
MCL
37.2202(1)(a); MCL 37.2103(i) (“Discrimination because of
12
sex
includes
sexual
harassment.”).
As
previously
set
forth, the statute expressly defines an “employer” as a
“person,” which is defined under MCL 37.2103(g) to include
a corporation, and also states that an “employer” includes
an “agent of that person.” MCL 37.2201(a).16
This statutory language uncontroversially means that
Ford Motor Company is an “employer” under the CRA.
What is
contested is whether an agent of the corporation is also
subject to individual liability.
Bennett
and
Ford
have
argued
that
the
statutory
definition of “employer,” which includes an “agent of that
person,”
should
not
be
read
as
providing
individual
liability because (1)
inclusion of the term “agent” in the
statutory
of
definition
“employer”
operates
solely
to
confer vicarious liability on the employer, (2)
federal
courts
VII—the
of
appeals
have
all
held
that
Title
analogous federal sexual discrimination statute with its
similar definition of “employer”—does not allow individual
liability,
suggests
and
a
(3)
the
different
amendment
intention
on
history
of
our
CRA
the
part
of
the
Legislature.
16
These legislatively provided definitions are binding
on this Court.
Tryc v Michigan Veterans’ Facility, 451
Mich 129, 136; 545 NW2d 642 (1996).
13
Regarding
the
first
of
these
arguments,
that
this
statute should not be read to expand the class of potential
defendants
to
include
agents,
defendants
assert
that
Chambers, supra at 310, supports this narrowing conclusion
because it held that the inclusion of an “agent” within the
definition of an “employer” in MCL 37.2201(a) served to
confer vicarious liability on the agent’s employer.
disagree with this analysis.
language
establishes
We
While Chambers held that this
vicarious
liability,
did not limit it to that function.
our
discussion
The reason is that,
when a statute says “employer” means “a person who has 1 or
more employees, and includes an agent of that person,” it
must, if the words are going to be read sensibly, mean that
the Legislature intended to make the agent tantamount to
the employer so that the agent unmistakably is also subject
to suit along with the employer. (Emphasis added.)
Indeed,
when we said in Chambers, supra at 320, that categorizing a
given pattern of misconduct allows the Court “to determine
whether the sexual harasser's employer, in addition to the
sexual harasser himself, is to be held responsible for the
misconduct,” we believe we said as much.
original.)
including
Accordingly,
“agent”
within
we
the
reject
the
definition
(Emphasis in
argument
of
that
“employer”
serves only to provide vicarious liability for the agent’s
14
employer and we conclude that it also serves to create
individual liability for an employer’s agent.17
With respect to defendants’ second argument, which is
effectively
that
we
should
piggyback
on
the
rationale
federal courts have used with Title VII,18 defendants refer
17
Justice Weaver states in her dissent that we offer
“no clear reason for rejecting the conclusion that the
phrase ‘agent of the employer’ denotes respondeat superior
liability.” Post at 7. But, as our discussion above makes
clear, we do not reject this conclusion.
Rather, we hold
that the Legislature’s use of the words “agent of the
employer” denotes respondeat superior liability and also
that individual liability may exist under the statute.
Justice Cavanagh argues in his dissent that
the statute means that an employer is a person
who has one or more employees and this includes
an agent of the employer.
This means that an
employer still falls within the purview of the
statute even if its “employees” are mere agents,
such as family members who are helping with the
business.
To determine employer liability,
agents are considered employees. [Post at 2-3.]
We believe Justice Cavanagh is misreading the statute.
The statute says an agent can be an employer—not an
employee. The reference in the statute to "agent" modifies
"employer."
It does not expand the scope of "employee."
This is evident from the parallel verbs:
"Employer" means a person who has 1 or more
employees, and includes an agent of that person.
[MCL 37.2201(a) (emphasis added).]
18
Title VII defines “employer” to mean “a person
engaged in an industry affecting commerce who has fifteen
or more employees . . . and any agent of such a person . .
. ." 42 USC 2000e(b). (Emphasis added.) Thus, while the
definition of “employer” under Title VII is similar to that
of our CRA, as pointed out in Chambers, unlike the federal
(continued…)
15
us to numerous federal decisions that, on the basis of the
“policy” and “object” of Title VII rather than what the
statute
actually
says,
individual liability.19
have
read
Title
VII
to
preclude
This Court has been clear that the
policy behind a statute cannot prevail over what the text
actually
says.
The
text
must
prevail.
In
fact,
in
Chambers, when an invitation to follow “policy” over “text”
was presented with regard to the CRA, we said:
We
are
many
times
guided
in
our
interpretation of the Michigan Civil Rights Act
by
federal
court
interpretations
of
its
(…continued)
law, the CRA expressly establishes a cause of action for
sexual
harassment
and
employer
liability
based
on
traditional agency principles.
Chambers, supra at 311,
315-316, 326.
19
For example, in Wathen, supra at 405, the Sixth
Circuit Court of Appeals determined there was no individual
liability under Title VII of the federal civil rights act,
even though a reading of
the language contained in Title
VII would lead to the conclusion that an individual could,
in fact, be held liable for acts of discrimination.
The
Sixth Circuit, however, citing the “object” and “policy”
behind Title VII instead of its language, ultimately
rendered a decision in conflict with that language.
Similarly, in Tomka v Seiler Corp, 66 F3d 1295, 1314 (CA 2,
1995), the Second Circuit ruled individual liability was
not available under Title VII even though what it
grudgingly referred to as “a narrow, literal reading of the
agent clause” in Title VII “does imply that an employer’s
agent is a statutory employer for purposes of [Title VII]
liability . . . .” As in Wathen, the Second Circuit went
on to read Title VII not on the basis of its language, but
on the basis of what it viewed as the real “intentions of
the legislators.”
16
counterpart federal statute.
However, we have
generally been careful to make it clear that we
are not compelled to follow those federal
interpretations. Instead, our primary obligation
when interpreting Michigan law is always “to
ascertain and give effect to the intent of the
Legislature, . . . ‘as gathered from the act
itself.’” . . .
[W]e cannot defer to federal
interpretations if doing so would nullify a
portion
of
the
Legislature's
enactment.
[Chambers, supra at 313-314 (citations omitted).]
As
in
Chambers,
we
again
decline
to
follow
the
tendered “policy” over “text” federal court interpretations
of Title VII for the same reason: it would be contrary to
the
very
provides
wording
that
an
of
our
CRA.
“employer”
Because
includes
an
MCL
37.2201(a)
“agent”
of
the
employer, an agent can be held individually liable under
the CRA.20
20
Justice Weaver states in her dissent that our
holding may be a “shallow victory” for plaintiffs because
sexual harassers may not be “agents” if they were acting
outside the scope of their authority. We neither agree nor
disagree with any aspect or premise of this proposition,
and do not address it here, because this issue has not been
raised or argued by the parties.
Further, whether or not
some later holding by this Court may prove to be a “shallow
victory” is in sharp contrast with the “certain defeat”
that
plaintiffs
in
sexual
harassment
cases
against
individuals would suffer under Justice Weaver’s “common
sense” interpretation of the statute. Post at 7. Justice
Weaver further claims that under our opinion a supervisor,
but not a coemployee, may face individual liability. This
also is a proposition that has no basis in our opinion.
All we have said is, if the individual was an agent of the
employer, individual liability may exist.
Whether a
distinction can be drawn under the statute between
(continued…)
17
Moreover,
anticipated
several
our
federal
holding
that,
courts
under
in
our
Michigan
CRA,
have
individual
agent liability exists even if it did not exist under Title
VII.
Supp
This can be seen in Hall v State Farm Ins Co, 18 F
2d
751,
764
(ED
Mich,
1998),
in
which
the
United
States District Court for the Eastern District of Michigan
explained:
ELCRA
[Elliot-Larsen
Civil
Rights
Act]
covers
any
employer
“who
has
1
or
more
employees.” Mich. Comp. Laws § 37.2201(a). Thus,
ELCRA undeniably envisions placing liability on
individuals, such as two-member business entities
where one person is the principal and the other
person serves as the employee. Moreover, ELCRA's
remedy provision authorizes “person[s] alleging a
violation of this act [to] bring a civil action
for appropriate injunctive relief or damages, or
both,” with “damages” being awarded for an
“injury or loss caused by each violation of this
act,
including
reasonable
attorney's
fees.”
Mich. Comp. Laws §§ 37.2801(1), (3). These ELCRA
remedies further distinguish it from Title VII
because damages can be obtained from individuals
as well as employers.
Similarly, another judge of the same federal district
court
also
questioned
the
Jager
Court’s
conclusion
that
individual liability did not exist under Michigan’s CRA,
stating that
(…continued)
supervisory and nonsupervisory employees has again not been
raised or argued in this case.
18
the
language
“includes
an
agent
of
that
employer,” could, under principles of strict
statutory construction, well be read as extending
liability to individuals. Otherwise, this phrase
is merely surplusage, as it adds nothing to the
definitional scope of “employer,” which itself
defines the term “employer” as a person. [United
States v Wayne Co Comm College Dist, 242 F Supp
2d 497, 507 n 11 (ED Mich, 2003).][21]
We conclude, then, that while federal courts have the
power to construe Title VII as they will, that does not
compel us to follow them, especially if the language being
construed is at loggerheads with the purported policy.
With
respect
to
the
third
argument
regarding
the
amendment history of our CRA, defendants assert that it
precludes a finding of individual liability.
They advance
this by positing that when the CRA was first enacted in
1976, it defined “employer” to mean “a person who has 4 or
more
employees,
1976 PA 453.
and
includes
an
agent
of
that
person.”
This meant, as defendants read it, that an
agent could not be individually liable because the CRA did
21
Millner v DTE Energy Co, 285 F Supp 2d 950, 964 n 16
(ED Mich, 2003), also expressed the same qualms as those
indicated in Wayne Comm College.
We also note that, in Poches v Electronic
Corp, 266 F Supp 2d 623, 627 (ED Mich, 2003),
Baergen, 262 Mich App 274, 296-297; 686 NW2d
the courts distinguished Jager and allowed
claims against individuals to go forward
antiretaliation provision of the CRA, MCL
broader than the antidiscrimination provision
MCL 37.2202.
19
Data Systems
and Rymal v
241 (2004),
retaliation
because the
37.2701, is
of the CRA,
not apply at all unless there were at least four employees.
With that predicate of no agent liability under the 1976
act
understood,
which
reflects
they
the
then
1980
turn
to
amendment22
the
amended
that
statute,
broadened
the
protection of the CRA by sweeping under its aegis companies
with only one employee, but left unchanged the definition
of “employer” to include an “agent,” and argue that even
though the old theory of nonliability of agents cannot be
sustained under the new language, we should read it in
anyway.
This we cannot do.
what it said.
The Legislature is held to
It is not for us to rework the statute.
duty is to interpret the statute as written.
Our
The binding
nature of this responsibility was reiterated by this Court
recently in Lansing Mayor v Pub Service Comm, 470 Mich 154,
161; 680 NW2d 840 (2004), in which we said:
Our task, under the Constitution, is the
important, but yet limited, duty to read and
interpret what the Legislature has actually made
the law. We have observed many times in the past
that our Legislature is free to make policy
choices
that,
especially
in
controversial
matters, some observers will inevitably think
unwise.
This dispute over the wisdom of a law,
however, cannot give warrant to a court to
overrule the people's Legislature.
22
In 1980, the Legislature amended the statute to say
that an “employer” means “a person who has 1 or more
employees, and includes an agent of that person.” 1980 PA
202.
20
Thus, what this comes down to is that perhaps the
Legislature’s
policy
judiciary
not
debate.
is
choice
the
can
be
debated,
constitutional
venue
but
for
The Legislature is the proper venue.
the
such
a
It is to
that body that the defendants should make their argument.
Accordingly, we reject the claim that the amendment history
of
our
where
CRA
the
written
precludes
actual
a
finding
wording
unambiguously
of
of
the
provides
individual
statute
that
an
liability
as
currently
agent
may
be
of
“agent”
individually liable.23
Because
we
find
that
(1)
inclusion
an
within the definition of the word “employer” is not limited
to
establishing
employer,
employers,
but
(2)
vicarious
in
fact
federal
liability
means
decisions
23
agents
for
the
are
construing
agent’s
considered
Title
VII
Notwithstanding Justice Weaver's view that the
Legislature could have acted in a more "straightforward
manner" in communicating its intentions, we cannot think of
a more clearcut statement on its part concerning liability
under the statute.
While Justice Weaver would prefer to
rely on her own "common sense," post at 7, in interpreting
"employer" to exclude from coverage individual employees,
the majority would prefer to rely on the statute itself,
which states that "[e]mployer . . . includes an agent of
that person."
It is a caricature of the concept of
"judicial restraint" (which concept she invokes on her own
behalf, post at 7) for Justice Weaver to assert that her
"common sense" should be allowed to override the language
of the statute.
21
should not be followed because it would lead to a result
contrary to the text of our CRA, and (3) the amendment
history
of
the
CRA
does
not
preclude
a
finding
of
individual liability, we conclude that liability under our
CRA applies to an agent
who sexually harasses an
employee
in the workplace.
IV. Plaintiff’s Claim Against Ford
It is the case in this area of the law that employer
responsibility
for
only
employer
if
the
harassment
action.
and
sexual
failed
harassment
had
to
can
reasonable
take
Chambers, supra at 312.
be
established
notice
appropriate
of
the
corrective
In Chambers, we also held
that "notice of sexual harassment is adequate if, by an
objective standard, the totality of the circumstances were
such that a reasonable employer would have been aware of a
substantial
occurring."
probability
Id.
at
that
319.
sexual
Thus,
actual
harassment
notice
to
was
the
employer is not required; rather, the test is whether the
employer
knew
or
should
have
Radtke, supra at 396 n 46.24
known
of
the
harassment.
As is apparent, the issue is
24
Justice Weaver agrees with the majority that an
employer must have notice before it can be liable. Post at
10.
But, she later arguably undercuts this by citing
Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct
2399; 91 L Ed 2d 49 (1986) (a case construing Title VII),
(continued…)
22
whether Ford knew or reasonably should have known, under
the totality of the circumstances, of Bennett’s harassment
of plaintiff.
Plaintiff claims she made a prima facie showing of
notice when she told two low-level supervisors of Bennett’s
exposure,
and
that
Ford
was
also
put
on
notice
by
the
letters her psychologist and son-in-law sent to Ford.
We
agree with the trial court and the Court of Appeals that
plaintiff’s notice evidence was insufficient to allow the
case to be submitted to the jury.
We first consider whether plaintiff’s telling two lowlevel supervisors in confidence that Bennett had exposed
himself to her constituted notice to Ford.
did not.
We find that it
It must be recalled that, if an employee is
sexually harassed in the workplace, it is that employee’s
(…continued)
for the proposition that the “absence of notice to an
employer does not necessarily insulate that employer from
liability.”
As for this language from Meritor, we note
that it has been interpreted to mean that "employers are
liable for failing to remedy or prevent a hostile or
offensive
work
environment
of
which
management-level
employees knew, or in the exercise of reasonable care
should have known."
Equal Employment Opportunity Comm v
Hacienda
Hotel,
881
F2d
1504,
1515-1516
(CA
9,
1989)(emphasis added).
Thus, the language from Meritor
should be understood to mean actual notice is not required.
This is consistent with Michigan law because the test is
whether the employer knew or should have known of the
harassment. Radtke, supra at 396 n 46.
23
choice whether to pursue the matter.
In other words, the
victim of harassment “owns the right” whether to notify the
company and start the process of investigation.
Until the
employee takes appropriate steps to start the process, it
is not started.
As stated in Perry v Harris Chernin, Inc,
126 F3d 1010, 1014 (CA 7, 1997):
[T]he law against sexual harassment is not
self-enforcing.
A plaintiff has no duty under
the
law
to
complain
about
discriminatory
harassment, but the employer in a case like this
one will not be liable if it had no reason to
know about it.
Thus,
discussing
when
an
employee
workplace
confidentiality
is
requests
harassment,
honored,
such
and
a
confidentiality
the
request
request
is
in
for
properly
considered a waiver of the right to give notice.25
Thus,
we
conclude
that
plaintiff’s
telling
two
supervisors in confidence about one instance of Bennett’s
improper
conduct
does
not
constitute
notice,
notwithstanding Ford’s policy that required the supervisors
25
An employer, of course, remains free to discipline a
supervisor for failing to report a sexual harassment
complaint to the proper persons as required by the
employer’s policy. But, that is a different issue, and it
does not mean that a confidential report of sexual
harassment to a supervisor constitutes notice to the
employer.
24
to report the information to human resources personnel.26
Our
holding
is
consistent
considered this issue.
with
other
courts
that
have
For example in Hooker v Wentz, 77 F
Supp 2d 753, 757-758 (SD W Va, 1999), the court held there
was no notice to the employer where the plaintiff confided
in her immediate supervisor about sexual advances but asked
that he not report it to others.
And, in Faragher v Boca
Raton, 111 F3d 1530 (CA 11, 1997), rev’d on other grounds
524 US 775 (1998), the court held that, for vicariousliability purposes, notice to a manager does not constitute
notice to management when the complainant asks the manager,
as a friend, to keep the information confidential.
With regard to the letters that were sent to Ford, we
concur with the Court of Appeals that where the evidence
showed
that
plaintiff
had
filed
numerous
grievances
and
labor relations complaints over the years against Bennett
and others that were unrelated to sexual harassment,27 the
mentioning of the word “harassment” alone or the phrase
“hostile environment” in the letters was insufficient to
26
Accord Hooker v Wentz, 77 F Supp 2d 753, 757-758 (SD
W Va, 1999) (where the plaintiff confided in her immediate
supervisor about sexual advances, but asked that he not
report it to others, there was no notice to the employer).
27
There were several disputes regarding plaintiff’s
shift assignment.
25
give Ford notice that sexual harassment was being claimed.
This is especially true where plaintiff was aware, and the
employer was aware that she was aware, of the terminology
at
issue
because
she
had
previously
filed
a
written
complaint asserting that her UAW committeeman had sexually
harassed her.28
Accordingly, even viewing the evidence in a
light most favorable to plaintiff, we conclude that Ford
was
entitled
to
a
directed
verdict
because,
under
the
totality of the circumstances, a reasonable employer would
not have been on notice of a substantial probability that
sexual harassment was occurring.29
Plaintiff argues in the alternative that, even if her
evidence of notice to Ford was insufficient, it would have
been
sufficient
if
the
trial
court
had
not
erroneously
granted the motion in limine that precluded introduction of
evidence of Ford’s knowledge of Bennett’s indecent exposure
conviction.
This conviction had been expunged before the
28
Justice Weaver’s dissent advocates what might be
characterized as a “near miss” theory of notice, i.e., if a
male employee had problems at work with female employees or
was accused of harassing someone in a nonsexual way, this
somehow constitutes notice that such an employee was a
sexual harasser.
The perils of such an approach are
apparent and we decline to adopt it.
29
A directed verdict is proper where no prima facie
showing of liability is made.
Locke v Pachtman, 446 Mich
216, 222-223; 521 NW2d 786 (1994).
26
trial in this matter.
We conclude that the trial court’s
ruling was not an abuse of discretion.
First, we note that MCL 780.623(5) provides:
Except
as
provided
in
subsection
(2)
[pertaining to certain law enforcement purposes],
a person, other than the applicant, who knows or
should have known that a conviction was set aside
under this section and who divulges, uses, or
publishes information concerning a conviction set
aside
under
this
section
is
guilty
of
a
misdemeanor punishable by imprisonment for not
more than 90 days or a fine of not more than
$500.00, or both.
Pursuant
to
this
statute,
evidence
of
Bennett’s
expunged misdemeanor conviction was not admissible.
this
statute
clearly
made
evidence
of
the
While
conviction
inadmissible, that leaves the question whether the facts
that led to the conviction, which occurred while Bennett
was not at work and involved individuals with no connection
to Ford, were admissible to establish that Ford knew or
should
have
plaintiff.
known
that
Bennett
sexually
harassing
The trial court ruled that the evidence was
inadmissible
because
the
substantially
outweigh
any
might have.
was
prejudice
probative
to
value
Ford
the
would
evidence
The trial court did not abuse its discretion.30
30
See, e.g., Tomson v Stephan, 705 F Supp 530, 536 (D
Kan, 1989) (excluding evidence that the defendant made
sexual advances outside the employment setting because the
advances were not made toward an employee); Longmire v
(continued…)
27
Indeed,
improper
we
question
off-site
how
Ford’s
behavior
knowledge
involving
of
Bennett’s
nonemployees
could
constitute notice to Ford that plaintiff’s work environment
was
sexually
hostile.
Context
is
important;
improper
behavior of a given type is not an inevitable predictor of
other types of improper behavior especially where, as here,
they
occur
at
entirely
different circumstances.
different
locales
and
under
Tomson v Stephan, 705 F Supp 530,
536 (D Kan, 1989).
And, as we stated in Chambers, supra at 315-316, an
employer
can
be
vicariously
liable
for
a
hostile
work
environment only if it “failed to take prompt and adequate
remedial action upon reasonable notice of the creation of a
hostile
[work]
environment
.
.
.
.”
(Emphasis
added.)
Here, the trial court and the Court of Appeals properly
held that plaintiff’s notice evidence was insufficient to
allow the case to be submitted to the jury.
V. Conclusion
Because employers can be held liable under the CRA,
and because agents are considered employers, agents can be
(…continued)
Alabama State Univ, 151 FRD 414, 417 (MD Ala, 1992) (the
defendant’s
“activities
outside
the
work
place
are
irrelevant” to determining the existence of a hostile work
environment).
28
held
liable,
as
individuals,
under
the
CRA.
Thus,
we
accept the invitation of the Court of Appeals and reverse
that part of the Court of Appeals opinion that relied on
Jager in holding that agents may not be held individually
liable under our CRA.
We affirm the judgment of the Court of Appeals that
Ford was entitled to a directed verdict and that the trial
court’s pretrial ruling on the motion in limine was not an
abuse of discretion.
Reversed in part, affirmed in part, and remanded to
the circuit court for further proceedings regarding Bennett
and consistent with this opinion.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
29
S T A T E
O F
M I C H I G A N
SUPREME COURT
LULA ELEZOVIC,
Plaintiff-Appellant,
and
JOSEPH ELEZOVIC,
Plaintiff,
v
No. 125166
FORD MOTOR COMPANY AND DANIEL P.
BENNETT,
Defendants-Appellees.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I believe that the Civil Rights Act (CRA), MCL 37.2101
et seq., does not provide for individual liability against
an agent of an employer; therefore, I respectfully dissent
from the majority on this issue.
I also dissent from the
majority on the issue of notice.
As discussed by Justice
Weaver
in
plaintiff
her
partial
provided
dissent,
evidence
of
I
likewise
notice
to
believe
that
defendant
Ford
Motor Company (Ford) that was sufficient to allow the issue
to be decided by a jury.
reached
by
the
Finally, I concur with the result
majority
regarding
the
trial
court’s
decision to grant defendants’ motion in limine to preclude
evidence
of
Ford’s
knowledge
of
the
alleged
sexual
harasser’s expunged indecent exposure conviction.
I. INDIVIDUAL LIABILITY UNDER THE CIVIL RIGHTS ACT
This issue involves the proper interpretation of the
CRA.
The primary goal of statutory interpretation is to
give effect to the intent of the Legislature.
In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
The first step is to review the language of the statute.
If the statutory language is unambiguous, the Legislature
is presumed to have intended the meaning expressed in the
statute and judicial construction is not permissible.
MCL
37.2201(a)
states
the
following:
“‘Employer’
means a person who has 1 or more employees, and includes an
agent of that person.”
According to the statute, “that
person” refers to the employer.1
Simply, the statute means
that an employer is a person who has one or more employees
and this includes an agent of the employer.
1
This means
MCL 37.2103(g) states the following:
“Person”
means
an
individual,
agent,
association, corporation, joint apprenticeship
committee,
joint
stock
company,
labor
organization,
legal
representative,
mutual
company, partnership, receiver, trust, trustee in
bankruptcy,
unincorporated
organization,
the
state or a political subdivision of the state or
an agency of the state, or any other legal or
commercial entity.
2
that an employer still falls within the purview of the
statute even if its “employees” are mere agents, such as
family
members
determine
who
are
employer
employees.
Thus,
helping
with
liability,
an
the
business.
To
agents
considered
cannot
employer
are
escape
liability
because the alleged sexual harasser is not officially an
employee, but is instead, for example, a family member who
is “helping out” with the business.
If the sexual harasser
is an employee or agent of the employer, the employer is
liable if it had notice and failed to act reasonably.
See
Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993).
According to the unambiguous language selected by the
Legislature, the plain text of the statute provides for
employer
liability
for
the
acts
of
its
employees
and
agents, but it does not provide for individual liability.
Because policy considerations cannot be taken into account
in this case, I offer no position on whether it would be
best for plaintiffs in sexual harassment cases to also hold
an alleged sexual harasser individually liable under the
CRA.
That
decision
is
solely
for
the
Legislature
to
determine.
II. NOTICE TO FORD OF SEXUAL HARASSMENT
I
concur
dissent.
I
with
part
believe
II
Justice
of
Justice
Weaver
Weaver’s
outlines
partial
sufficient
evidence to support plaintiff’s claim that Ford had notice
3
of
plaintiff’s
plaintiff
allegations
requested
of
sexual
confidentiality
harassment.
from
two
While
supervisors
whom she told about the alleged sexual harassment, it is
critical to note that the supervisor of labor relations had
notice of plaintiff’s allegations of sexual harassment from
one of plaintiff’s coworkers and from the alleged sexual
harasser himself.
In addition to the other facts presented
by plaintiff, because the supervisor of labor relations had
notice of plaintiff’s allegations of sexual harassment, I
believe that this issue should be determined by a jury.
III. EXCLUDING EVIDENCE OF THE ALLEGED SEXUAL HARASSER’S
EXPUNGED CONVICTION FOR INDECENT EXPOSURE
I concur with the result reached by the majority that
the
trial
court
did
not
abuse
its
discretion
when
it
granted defendants’ motion in limine to preclude evidence
of
Ford’s
knowledge
of
the
alleged
expunged indecent exposure conviction.
sexual
harasser’s
I also concur with
the majority’s conclusion that, in this case, the facts
that led to the conviction were not sufficient to put Ford
on notice of sexual harassment.
However, I note that there
certainly may be instances where the facts of a conviction,
even one that occurs off-site and involves nonemployees,
may lead to notice because of the context in which the
incident occurred and the totality of the circumstances.
4
IV. CONCLUSION
Because
the
CRA
does
not
provide
for
individual
liability against an agent of an employer, I respectfully
dissent from the majority on this issue.
I also dissent
from the majority on the issue of notice and, accordingly,
I
concur
plaintiff
with
Justice
provided
Weaver
evidence
of
because
notice
I
to
believe
Ford
that
that
was
sufficient to allow the issue to be decided by a jury.
Finally, I concur with the result reached by the majority
regarding the trial court’s decision to grant defendants’
motion in limine to preclude evidence of Ford’s knowledge
of the alleged sexual harasser’s expunged indecent exposure
conviction.
Michael F. Cavanagh
Marilyn Kelly
5
S T A T E
O F
M I C H I G A N
SUPREME COURT
LULA ELEZOVIC,
Plaintiff-Appellant,
and
JOSEPH ELEZOVIC,
Plaintiff,
v
No. 125166
FORD MOTOR COMPANY AND DANIEL P.
BENNETT,
Defendants-Appellees.
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the majority’s conclusions that the trial
court’s ruling on the defendants’ motion in limine was not
an abuse of discretion and that its decision to exclude the
evidence of defendant Daniel Bennett’s expunged conviction
should
because
therefore
I
conclusion
be
affirmed.
respectfully
that
dissent
Michigan’s
But
both
Civil
I
write
from
Rights
the
Act
separately
majority’s
(CRA),
MCL
37.2101 et seq., provides for individual liability against
an
agent
of
an
employer
and
from
its
conclusion
that
defendant Ford Motor Company was entitled to a directed
verdict because plaintiff failed to establish that Ford had
notice of the sexual harassment.
Instead,
I
would
conclude
that
the
Legislature
included the word “agent” in the definition of “employer”
in MCL 37.2201(a) to denote respondeat superior liability,
not
individual
liability.
Accordingly,
I
would
not
overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich
App 464; 652 NW2d 503 (2002), and I would affirm the Court
of
Appeals
conclusion
in
this
case
individual liability under the statute.
that
there
is
no
Further, I would
conclude that plaintiff offered sufficient evidence during
trial to allow the question of notice to go to the jury.
Therefore, I would reverse the Court of Appeals decision
that the trial court properly granted a directed verdict in
Ford’s
favor
because
plaintiff
failed
to
show
that
she
provided notice of her sexual harassment claim.
I
The
CRA
provides,
in
pertinent
part,
that
“[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.
(b)
Limit,
segregate,
or
classify
an
employee or applicant for employment in a way
that deprives or tends to deprive the employee or
2
applicant
of
an
employment
opportunity,
or
otherwise adversely affects the status of an
employee or applicant because of religion, race,
color, national origin, age, sex, height, weight,
or marital status.
(c)
Segregate,
classify,
or
otherwise
discriminate against a person on the basis of sex
with respect to a term, condition, or privilege
of employment, including, but not limited to, a
benefit plan or system. [MCL 37.2202.]
The CRA defines discrimination because of sex to include
sexual harassment.
MCL 37.2103(i).
It defines “sexual
harassment” to mean “unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct or
communication
of
a
sexual
nature
under
the
following
conditions”:
(i)
Submission
to
the
conduct
or
communication is made a term or condition either
explicitly or implicitly to obtain employment,
public
accommodations
or
public
services,
education, or housing.
(ii) Submission to or rejection of the
conduct or communication by an individual is used
as
a
factor
in
decisions
affecting
the
individual’s employment, public accommodations or
public services, education, or housing.
(iii) The conduct or communication has the
purpose or effect of substantially interfering
with
an
individual’s
employment,
public
accommodations or public services, education, or
housing, or creating an intimidating, hostile, or
offensive
employment,
public
accommodations,
public
services,
educational,
or
housing
environment. [MCL 37.2103(i).]
3
The term “employer” is defined as “a person who has 1 or
more employees, and includes an agent of that person.”
MCL
37.2201(a).
The majority concludes that because the definition of
the word “employer” includes an “agent” of the employer,
“an agent can be held individually liable under the CRA.”
Ante
at
17.
I
disagree
and,
instead,
agree
with
the
conclusion reached by the Court of Appeals in Jager, supra
at 484, that by defining “employer” to include an “agent”
of the employer, the Legislature “meant merely to denote
respondeat
superior
liability.”2
liability[1]
Thus,
I
would
rather
not
than
overrule
individual
the
Jager
decision.
Had
liability
the
on
Legislature
the
intended
individuals
who
the
commit
CRA
to
impose
harassment,
it
would likely have done so in a more straightforward manner
than by defining “employer” to include an “agent” of the
1
Respondeat superior “means that a master is liable in
certain cases for the wrongful acts of his servant, and a
principal for those of his agent.” Black’s Law Dictionary
(6th ed). It is an element of a prima facie case of sexual
harassment based on hostile work environment.
Radtke v
Everett, 442 Mich 368, 383; 501 NW2d 155 (1993).
For all
five elements, see p 10 of this opinion.
2
See also Miller v Maxwell’s Int’l Inc, 991 F2d 583
(CA 9, 1993), and Wathen v Gen Electric Co, 115 F3d 400 (CA
6, 1997), which interpret the phrase as used in Title VII.
4
employer.3
Relying on the word “agent” to impose individual
liability would, under the majority’s interpretation, only
allow individual liability against supervisors and others
in
similar
positions
who,
under
agency
considered “agents” of the employer.4
permit
coemployees
who
individually liable.
impose
individual
harass
a
law,
might
be
But it would not
victim
to
be
held
If the Legislature truly intended to
liability
under
the
CRA
on
those
who
commit sexual harassment, one would expect that it would
choose language that would allow all individuals who commit
the
harassment
to
be
held
liable,
regardless
of
their
status as a supervisor or coemployee.
Further,
approach
the
becomes
“round-aboutness”
more
evident
when
of
the
one
majority’s
realizes
that
recognizing individual liability under the CRA may be a
very
shallow
“victory”
for
plaintiff
and
may
actually
result in very few individuals being held liable.
In this
3
For example, the Legislature could have said in MCL
37.2202 that an “employer or employee of the employer shall
not . . .,” or it could have included a separate section in
the statute addressing individual liability.
4
An agent has been defined as a “person authorized by
another (principal) to act for or in place of him; one
intrusted with another’s business” or “[o]ne who deals not
only with things, as does a servant, but with persons,
using his own discretion as to means, and frequently
establishing contractual relations between his principal
and third persons.” Black’s Law Dictionary (6th ed).
5
case, the majority assumes that Mr. Bennett was an “agent”
of Ford without analyzing the issue.
But if the issue
whether the perpetrator of the harassment was an agent of
the employer were analyzed under strict agency principles,
in many cases, it may be concluded that the perpetrator of
the harassment cannot be held individually liable as an
agent
because
the
perpetrator
did
not
have
actual
or
apparent authority from the employer to harass employees of
the employer; therefore he cannot be considered an “agent”
of the employer because he was acting outside the scope of
his
authority.5
Legislature
language
It
would
that
does
create
might,
not
seem
reasonable
individual
in
actuality,
that
liability
foreclose
the
using
most
5
See, e.g., AMCO Builders & Developers, Inc v Team Ace
Joint Venture, 469 Mich 90, 103-104; 666 NW2d 623 (2003)
(Young, J. concurring)(stating that agency principles are
applicable to the attorney-client relationship and that a
client may be bound by the acts of his agent when the agent
is acting within the scope of his authority); James v
Alberts, 464 Mich 12, 15; 626 NW2d 158 (2001)(noting that
“a principal is bound by an agent’s actions within the
agent’s actual or apparent authority”).
In light of this, I now question the correctness of
our decision in Chambers v Trettco, Inc, 463 Mich 297, 312,
316; 614 NW2d 910 (2000), which concluded that the CRA is
firmly “rooted in traditional agency principles.”
While
agency principles may be a helpful guide in applying the
CRA, I question whether they should be rigidly applied in
this setting.
6
individuals from being held individually liable under the
CRA.
The majority offers no clear reason for rejecting the
conclusion that the phrase “agent of the employer” denotes
respondeat superior liability.
Rather, it simply concludes
that the phrase “includes an agent of that person” must
mean “if the words are going to be read sensibly” that
agents
are
statute.
subject
Ante
at
to
individual
14.
Thus,
liability
the
majority’s
under
the
reasoning
amounts to little more than it must mean this because we
say
it
does.
But,
as
suggested
above,
rather
than
a
“sensible” reading of the statute, this seems a very roundabout way to create individual liability.
I also disagree with the majority’s suggestion that
concluding
superior
that
the
liability
word
and
“agent”
not
denotes
individual
“policy” over the “text” of the statute.
respondeat
liability
places
Ante at 15—17.
Interpreting the text of the statute does not mean that we
read a phrase in the statute in isolation from the act as a
whole
or
from
the
purpose
of
the
act.
Interpreting
a
statute with judicial restraint and common sense may, in
fact, require us to consider the act as a whole and its
purpose
while
we
endeavor
to
understand
what
Legislature intended by including a particular phrase.
7
the
In this case, a purpose of MCL 37.2202 is to prohibit
employers from sexually discriminating against employees.
By imposing liability on employers for sexual harassment,
employers
will
be
encouraged
to
take
steps
to
prevent
sexual harassment from occurring in the workplace.
But
often in a large company or corporation, there is not one
“person”
that
could
be
considered
the
“employer”
for
purposes of determining whether an “employer” discriminated
against an employee.
is
reasonable
definition
for
that
The employer is an entity.
the
an
Legislature
“employer”
to
include
includes
an
Thus, it
in
the
“agent.”
Including this respondeat superior aspect in the statute
ensures
that
harassment
employees
while
still
can
hold
balancing
employers
the
liable
interests
of
for
the
employer by limiting employer liability to those who can be
considered
the
employer’s
“agents”
and
incorporating
respondeat superior principles that require notice to the
employer
of
the
alleged
harassment.6
Considering
this
“policy” behind the provision does not place policy over
“text.”
Rather, it is another way a judge exercises common
6
As noted in footnote 3 of this opinion, I question
whether agency principles should be rigidly applied to the
CRA
rather
than
used
as
a
general
guideline
for
interpreting the CRA, and I do not mean to suggest that by
using the word “agent” to denote respondeat superior
liability, the Legislature clearly intended to incorporate
any and all principles of agency law into the CRA.
8
sense and judicial restraint while attempting to reach a
reasonable interpretation of what the Legislature intended
the words to mean.
Therefore,
until
the
Legislature
clearly
creates
individual liability under the statute, I would conclude
that plaintiff does not have a cause of action against Mr.
Bennett under the CRA.7
II
The
majority
also
concludes
that
the
trial
court
properly granted a directed verdict in favor of defendant
Ford Motor Company because plaintiff failed to establish
that Ford had notice of the harassment.
I disagree and
would allow the jury to determine, under the totality of
the circumstances, whether Ford had notice of the alleged
sexual harassment.
The elements required to establish a prima facie case
of sexual harassment based on hostile work environment are:
(1)
group;
the
employee
belonged
to
a
protected
(2)
the
employee
was
subjected
communication or conduct on the basis of sex;
to
(3) the employee was subjected to unwelcome
sexual conduct or communication;
7
I note that although I would conclude that plaintiff
does not have a claim against Mr. Bennett under the CRA,
she can pursue any traditional tort claims that she may
have against him.
9
(4)
the
unwelcome
sexual
conduct
or
communication was intended to or in fact did
substantially
interfere
with
the
employee’s
employment or created an intimidating,
hostile,
or offensive work environment; and
(5) respondeat superior. [Radtke v Everett,
442 Mich 368, 382-383; 501 NW2d 155 (1993).]
As further explained, under the fifth element, an employer
may avoid liability if, upon notice of the hostile work
environment,
it
adequately
remedial action.
Receiving
Hosp,
[1991]).
An
investigated
Id. at 396 (quoting
191
Mich
employer
App
must
232,
have
and
took
prompt
Downer v Detroit
234;
notice
477
of
NW2d
the
146
alleged
harassment before it can be held liable, and it does not
have a duty to investigate and take prompt remedial action
until it has actual or constructive notice.
Radtke, supra
at 396-397 and n 44.
In
verdict
this
in
case,
Ford’s
the
trial
favor
on
court
granted
plaintiff’s
a
directed
hostile
work
environment claim on the basis that there was no notice to
Ford.8
The trial court stated:
The fact of the matter is that there was no
notice to Ford. This 1998 letter to Mr. Rush, if
it went to him, from the son-in-law, the
defendant never made mention of any sexual
harassment. And again, the only people she told
were supervisors.
Under normal circumstances I
8
Defendant Ford moved for summary disposition of
plaintiff’s hostile work environment claim only on the
issue of notice.
10
would agree that that would be enough.
But in
this case it was told to them in confidence. She
asked them not to repeat it.
And again, she
complained that she couldn’t come forward because
of her culture.
The Court of Appeals affirmed the trial court’s ruling.
This Court reviews de novo the grant of a motion for a
directed verdict.
Cacevic v Simplimatic Engineering Co (On
Remand), 248 Mich App 670, 679; 645 NW2d 287 (2001); see
also Craig v Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296
(2004) (stating that a decision on a motion for judgment
notwithstanding
the
verdict
is
reviewed
de
novo).
In
reviewing the trial court’s decision on the motion, “we
examine the evidence and all reasonable inferences that may
be
drawn
from
it
nonmoving party.”
in
the
light
most
favorable
to
the
Hord v Environmental Research Institute
of Michigan (After Remand), 463 Mich 399, 410; 617 NW2d 543
(2000).
“A directed verdict is appropriately granted only
when no factual questions exist on which reasonable jurors
could
differ.”
Cacevic,
supra
at
679-680;
see
also
Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000)
(stating that a directed verdict is appropriate only if the
evidence, when considered in the light most favorable to
the nonmoving party, fails to establish a claim as a matter
of law).
Thus, while not insurmountable, the threshold for
obtaining a directed verdict is high.
11
Hord, supra at 410.
In my opinion, considering all the evidence and the
reasonable inferences that may be drawn from it, there are
factual
questions
about
which
reasonable
differ regarding whether Ford had notice.
issue
of
properly
notice
decide
is
as
not
a
one
that
matter
of
the
law;
jurors
could
Therefore, the
trial
court
instead,
it
question of fact to be decided by the jury.
can
is
a
Consequently,
I would reverse the Court of Appeals affirmance of the
trial court’s grant of a directed verdict in Ford’s favor
and remand this case to the trial court.
Plaintiff
testified
that
in
1995,
she
told
her
supervisor, Gary Zuback, that Mr. Bennett had been sexually
harassing her.
She also testified that around the same
time, she told another supervisor, Butch Vaubel, who said
that he would talk to Mr. Bennett, and that on different
occasions, she told her coworkers Dan Welch, Dave Perry,
and
Brad
Goatee.
She
admitted
that
when
she
told
Zuback and Mr. Vaubel, she told them confidentially.
Mr.
Dan
Welch testified that he did not tell anyone about the first
incident of harassment that plaintiff described to him, but
that he later spoke to Jerome Rush, the supervisor of labor
relations,
in
October
1998,
as
well
as
Ron
perhaps Richard Greenfield about the situation.
Mester
and
Mr. Goatee
testified that he was called down to labor relations in
1996 or 1997 to discuss Mr. Bennett.
12
Mr. Rush testified
that before plaintiff’s lawsuit was filed, Mr. Bennett told
him that plaintiff was trying to set Mr. Bennett up on a
sexual
harassment
claim
and
that
Ford,
therefore,
knew
about the lawsuit before it was filed.
Labor relations notes written by Pete Foley to Jerome
Rush on August 25, 1998, indicate that plaintiff was very
upset and felt that Mr. Bennett and another worker, Tammy
Holcomb, were looking at her and laughing.
Notes dated
August 28, 1998, state the plaintiff told Pete Foley that
Mr. Bennett came near her when no one was around and that
she was scared.
Notes from Jerome Rush dated September 30,
1998, stated that plaintiff told him that Mr. Bennett was
“harassing” her.
Letters from plaintiff’s treating psychologist, Fran
Parker,
on
reference
September
plaintiff’s
19,
1997,
and
discomfort
November
with
Mr.
10,
1997,
Bennett,
A
letter sent by plaintiff’s son-in-law, Paul Lulgjuraj, who
is an attorney, on April 9, 1998, to Mr. Rush states that
his
office
was
investigating
“ongoing
acts
of
discrimination and retaliation,” references threats made by
Tammy Holcomb, and advises that his office may be taking
actions “to insure that our client is not subjected to
working in a hostile environment.”
Dr.
Parker
wrote
to
Mr.
Rush
to
On December 17, 1998,
explain
that
Rush
had
misunderstood Parker’s phone call on October 6, 1998, to
13
Rush to tell Rush that plaintiff had homicidal and suicidal
thoughts.
Parker’s letter stated that Parker did not tell
Mr. Rush that plaintiff intended to kill Dan Bennett, but
that the call was meant to ask Mr. Rush to intervene on
plaintiff’s behalf because the stress of plaintiff’s job
was “breaking her down.”
The majority, in affirming the trial court’s grant of
a directed verdict in Ford’s favor, improperly creates a
rule of automatic waiver.
any
time
an
employee
Under the majority’s analysis,
requests
confidentiality
when
reporting sexual harassment, the employee will have waived
notice.
Ante at 23-24.
While a request of confidentiality
is certainly something that the jury should consider in
determining whether the employer had notice, such a request
should
not
constitute
an
automatic
waiver
of
notice.
Rather, all the evidence presented and the totality of the
circumstances must be considered when determining whether
the employer had actual or constructive notice.
See, e.g.,
Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct
2399; 91 L Ed 2d 49 (1986), where in rejecting a rule of
automatic liability for employers for sexual harassment by
supervisors, the United States Supreme Court also stated
that
the
“absence
of
notice
to
an
employer
necessarily insulate that employer from liability.”
14
does
not
Considering all the evidence presented in this case in
the light most favorable to the plaintiff, there are issues
of fact to be decided by the jury about whether defendant
Ford
Motor
Company
had
sexually harassed.
have
that
requested
many
of
notice
that
plaintiff
was
being
While it is true that plaintiff may
confidentiality
the
letters
from
and
her
supervisors
documents
and
mentioning
“harassment” generally do not detail the specific instances
of sexual harassment on which plaintiff’s lawsuit is based,
evidence was also presented that she told coworkers of the
harassment
employees
and
in
considering
that
the
all
the
labor
the
coworkers
relations
in
turn
spoke
department.
documentation
in
the
with
Further,
light
most
favorable to plaintiff, there is certainly evidence that
plaintiff
complained
to
Ford
that
Mr.
Bennett
was
“harassing” her and doing something to make her job very
stressful.
Therefore,
I
would
conclude
that
the
question
of
notice is not one that can be decided as a matter of law by
the trial court, but one that must be decided by the jury
after
it
considers
the
entire
record
and
weighs
conflicting evidence.
Elizabeth A. Weaver
15
the
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