This was an action pursuant to the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., to obtain damages and injunctive relief for discrimination in employment. Plaintiffs complaint alleged a violation of MCL 37.1202(l)(a); MSA 3.550(202)(l)(a):
"An employer shall not:
"(a) Fail or refuse to hire, recruit or promote an individual because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.”
*376 After a jury trial, a verdict of no cause of action was returned, and this Court granted plaintiffs application for a delayed appeal pursuant to GCR 1963, 806.4.
The trial court instructed the jury as follows:
"Plaintiff has the burden of proving, at the outset, the following propositions:
"Number 1: That plaintiff was within the group protected by the Michigan Handicappers [sic] Civil Rights Act at the time of defendant’s refusal to rehire him;
"Number 2: That plaintiff was qualified both technically and physically to perform the work in question; and,
"Number 3: That despite his technical and physical qualifications, defendant refused him reinstatement under circumstances which gave rise to an inference of unlawful discrimination.
"If it’s your judgment that plaintiff has not, by a preponderance of the evidence, established all of the foregoing elements, then your inquiry is over and you should return a verdict in favor of the defendant.
"If, on the other hand, you determine that plaintiff has established all of the foregoing elements by a preponderance of the evidence, then and only then does your inquiry shift to the evidence produced by defendant to determine if, in your judgment, the defendant has offered a legitimate, nondiscriminatory reason for the complained-of conduct. In this regard, the defendant need not persuade you that it was actually motivated by the stated reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. If it does, it is still the plaintiff’s responsibility to prove, by a preponderance of the evidence, that the defendant’s stated reasons are a pretext. The act is not violated by a refusal to hire based on a rational business decision not motivated by handicap bias. An employer is entitled to make his own policy and business judgments. Your *377 focus is to be on the defendant’s motivation and not on the correctness of the business judgment.”
These instructions were based on those approved by the United States Supreme Court for use in actions for racial discrimination in employment brought pursuant to Title VII of the Civil Rights Act of 1964, 42 USC 2000e
et seq. McDonnell Douglas Corp v Green,
In order for a failure or refusal to hire, recruit, or promote an individual to fall within the ban of MCL 37.1202(l)(a); MSA 3.550(202)(l)(a), two requirements must be met: (1) the employer’s failure or refusal must have been "because of a handicap” and (2) the handicap in question must be "unrelated to the individual’s ability to perform the duties” of the job or position at issue. In
Wardlow v Great Lakes Express Co,
Wardlow cannot be regarded as authority for the proposition that the employer’s intent is irrelevant to a determination of whether MCL 37.1202(l)(a); MSA 3.550(202)(l)(a) was violated because Wardlow dealt only with the second of the *378 two relevant requirements. The employer’s intent is irrelevant to determining whether a handicap was unrelated to the plaintiffs ability to perform the job. The employer’s intent is not irrelevant to determining whether the employer’s failure or refusal to hire, recruit, or promote plaintiff was "because of a handicap”. The Legislature’s use of the phrase "because of a handicap” demonstrates that the Legislature intended an inquiry into the employer’s reasons for failing or refusing to hire, recruit, or promote a handicapped individual. Failures or refusals not based on a handicap do not violate the act.
The instructions at issue here provided a framework for the jury in general to determine the employer’s reasons for not hiring plaintiff and in particular to determine whether an ostensibly nondiscriminatory reason proffered by the employer was a mere pretext for handicap discrimination. The instructions given accurately stated the law and were not erroneous.
In
Gallaway v Chrysler Corp,
"To the extent that the jury in the case at bar was instructed that plaintiff could not recover if a consideration other than age discrimination was a determining factor in the termination of his employment, error was committed. The jury should have been instructed that they were to return a verdict in favor of plaintiff if they found that age discrimination played a significant role in the reason for his retirement notwithstanding the presence of other, lawful considerations that also may have contributed to the cause of his retirement.”
Plaintiff argues that the instructions given here violated the
Gallaway
rule. We do not agree.
*379
While the instructions given in
Gallaway,
stated at
Affirmed.