Department of Civil Rights Ex Rel. Cornell v. Edward W Sparrow Hospital Ass'n

Mich 548 548 423 ex W OF CIVIL RIGHTS rel CORNELL EDWARD DEPARTMENT ASSOCIATION SPARROW HOSPITAL 2). (Calendar 70546, 5, Argued Docket 70578. March No. Nos. 22, 1985. November Decided Department complaint a of Civil Starrla K. Cornell filed with Sparrow Hospital following Rights against dis- Edward W. refusing comply charge to from her for laboratory personnel. hearing hospital A referee dress for code Rights hospital, in favor but the Civil Commission found Cornell, alia, finding reversed, pay, awarding inter Ms. Employment on of sex under the Fair discrimination the basis appealed Ingham hospital Circuit Practices Act. The to Bell, J., Court, court, reviewing the and the Robert Holmes novo, pay, holding that de the award of back matter reversed purposeful to and invidious the dress code did not amount such gainful employ- prohibit as discrimination attainment Kelly, P.J., Appeals, T. M. ment. The Court of M. J. and J., opinion dissenting), affirmed in Burns, (Mackenzie, J. per rejected and the claimant’s assertion entitlement curiam (Docket attorney Rights fees the Civil Act Nos. under 56535). parties appeal. opinions by joined by Williams, Chief Justice Justices Cavanagh joined Boyle, Ryan, and Justice Justice Supreme Brickley, Riley, Court held Justice plaintiff pay. should be awarded back Cavanagh joined by Williams, Justices Chief Justice Boyle, is found have been stated that an who Employment the Fair of unlawful discrimination under victim generally pay. Act Back Practices should awarded for Points in Headnotes References 2d, 2, 4, [1, Rights seq. Am Jur Civil et §§ 5] Rights Civil Act of in suit under Title VII of Award of back Opportunity by Equal Employment of 1972 as amended Act (42 employment practices. seq.), et USCS 2000e 472. ALR Fed 2d, [3, Civil 441. § Am Jur 6] backpay duty mitigate Employee’s under losses for award NLRB 160(c) requiring interim skilled seek USCS as § job ALR 511. line work. 32 Fed different Rights Dep’t only denial, should applied be denied where the reasons for if generally, purposes would not frustrate the central of the act to eliminate discrimination and to make whole the victim of discrimination. purposes Employment 1. The central of the Fair Practices Act were twofold: to eliminate discrimination and to make persons through Following whole who suffered discrimination. finding a of employer, unlawful discrimination an an em- ployee pay except which, should not be denied back for reasons applied generally, purposes. if would not defeat the central The purpose eradicating of consistently discrimination has been fepa recognized construing successor, in case law in the and its Rights the Civil Rights Act. Like Title VII of the federal Civil fepa of injuries Act the largely also dealt with that are major purpose economic in making nature and had as a second injury whole those who had suffered on account of discrimina- tory practices. law, pay Under federal back has been awarded course, Legislature such cases as a matter of and the presumed practice to have been aware of the when it enacted fepa. provision back-pay the case, applied 2. In this the trial court an incorrect standard deciding pay whether to award back to the claimant. Con- trary holding court, to the of the trial whether the discrimina- purposeful tion was and invidious in nature was not control- fepa ling. only purposeful The did not seek to eliminate and discrimination, invidious but all discrimination. An award of pay purposes: encourages back serves employers two it to employment examine and evaluate eye conditions of with an eliminating any effect, toward discriminatory that have a and compensates it Awarding the victim of pay discrimination. only purposeful where and invidious discrimination is found purposes. would thwart both pay justified 3. Nor ground was the denial of back on the that mitigate damages by the claimant complying failed to with the simultaneously challenging dress code while validity. its Be- actually sought employment elsewhere, cause the claimant question general mitigation hospital’s does not arise. The employment unconditional, offer of specifically was not but was upon compliance conditioned the claimant’s with the unlawful general rule, wrongfully dress code. While as a a terminated damages accept employment who seeks must either employer with a different employer or with the same in order mitigate damages job to except if the is unconditional as to nonetheless, pay, employer where an refuses to allow an employee complies to return to work unless that with Mich employment, discriminatory em- condition of unlawful damages. mitigate ployee to has not failed necessary question whether the It is to address 4. not actually constructively discharged plaintiff she because was was willing, discharged. ready, to times was and able At all she hearing findings of both the referee and the commis- work. was a the dress code made sion included statements plaintiff’s employment that she "ter- condition requirements. comply if with Even minated” for failure its constructive-discharge applied, to be doctrine were eligible plaintiff a for back because reasonable would be resign. position compelled employee in have her would felt analysis justify minority’s of back the doctrine to denial management’s ability manage im- would be because damages may paired distress emotional because avail- compensate able to victim rejected inadequate as and as fundamen- conditions must be undermining tally Act. the intent of the Civil question attorney 5. The whether the claimant is entitled appellate properly preserved review. fees was concurring, agreed joined by Riley, Ryan, Justice Justice plaintiff refusing comply was fired for pay, discriminatory to code that she is entitled back dress underlying agree not rationale did with the criticism the but constructive-discharge constructive-discharge the doctrine. The performs, alia, weeding inter the useful function of out doctrine case, case, might proper frivolous In a but not in this it claims. appropriate adopt the the for Court to the doctrine as determining pay employee in due an whether is standard voluntarily resigned. pay has Back should be awardable who discharged comply only employee refusal where an is to discriminatory employment, regardless not a condition of discharge resigna- the terminated or whether is case, pay only the should be awarded to tion. this plaintiff is that determined to have been fired. extent the agreed plaintiff concurring, Brickley, Justice that the should pay, express agree- separately to be awarded back but wrote portion ment with that of Justice Levin’s dissent which states constructive-discharge analysis applied in this should be Application analysis in a would result determina- case. employer discriminatory in tion that the action the resulted discharge plaintiff. constructive part, part, Reversed in affirmed in and remanded. that, Levin, writing developed separately, as Justice stated law, formally employee is not case an who under federal discharged and who declines to work under an unlawful work- ing may working condition be awarded back if the condi- person unpleasant tion is so difficult or that a reasonable compelled resign. employee’s would have felt If the shoes working unpleasant, condition is found to be so difficult or discharged, employee constructively is deemed have been condition, working although and back is awarded. If the unlawful, unpleasant, employee is not so difficult not is constructively discharged ordinarily deemed to have been reinstated, pay. is entitled to be but is not entitled to back constructive-discharge analysis applies whenever an em- position ployee working inis to continue and chooses not to employer discharges employee, employee do so. When an an mitigate damages by continuing cannot to work for the em- ployer. employee discharged, employee If the is not ordinar- must, ily discriminatory unless the unlawful condition is so unpleasant, working challenging difficult or continue while discriminatory unlawful condition. Because the generally position mitigate damages in a better and can ordinarily retroactively readily be made whole more than the employer, placed employee, the burden has been on the not the endure, employer, temporarily, per- at least an endurable injustice. ceived question The central is not whether a termination is classi- resignation discharge, fied a or a but whether an was justified failing mitigate damages by working under the challenged discriminatory pursuing condition while administra- judicial by drawing tive and remedies. This issue is not resolved employee quit a distinction between whether the or should be case, plaintiff deemed to have been fired. In this discharged. option continuing employment She had the under conditions. plurality appears employer to hold that whenever an imposes mandatory employment, condition of and the em- ployee job chooses to leave the rather than work under the condition, constructive-discharge analysis apply; does not im- posing discharge. the condition is deemed tantamount to actual unduly interpretation This is an narrow of the constructive- discharge ignores Ordering doctrine that the case law. employee to wear a uniform as a condition of continued em- requiring accept ployment employee not differ from an to does pay mandatory or less a transfer as a condition of continued plaintiff’s supervisor, "go employment. The statement the clothes,” change justify finding home . . . and does not a of discharge. go change actual She was told to home so she could Mich nothing "go the to state- The words home” added her clothes. working required comply the ment that she would be condition; they merely to the were incidental statement. apply apparent did con- is the circuit court not It structive-discharge deciding back-pay analysis in issue. The purposeful question the dress code constituted whether discrimination, but rather whether the dress code and invidious unpleasant working that a a condition so difficult constituted person employee’s have felt in the shoes would reasonable Thus, resign. compelled to the the case should be remanded regarding its circuit for reconsideration of decision court constructive-discharge pay application of mode and for of analysis. (1982) part App 387; 326 NW2d 519 reversed Mich part. affirmed Opinion Williams, C.J. Employ- — Rights Employment —

1. Fair Discrimination Civil Pay. — ment Practices Act Back employee been a victim of unlawful An who found have gen- Employment Fair Practices Act discrimination under the erally pay; back should be denied should be awarded back denial, applied generally, only if would where the reasons purposes of act eliminate not frustrate central the victim discrimination discrimination and to make whole (MCL 423.307[h]; 17.458[7][h],repealed by 1976 PA MSA seq.; seq.). et MCL 37.2101 et MSA 3.548[101] Employ- — Rights Employment — 2. Fair Discrimination Civil Pay. — Back ment Practices Act upon Ending employee an was victim Denial ground on the that the discrimination unlawful discrimination purposeful invidious in nature was inconsistent was not Act; Employment purposes of the Fair Practices with the only purposeful and act did not seek to eliminate invidious (MCL discrimination, 423.307[h]; MSA but all discrimination seq.; 17.458[7][h],repealed by 37.2101 1976 PA MCL et seq.). MSA et 3.548[101] Mitigation Employment — — 3. Discrimination Damages. rule, seeking general wrongfully terminated As a damages accept either with a different em- must damages employer mitigate ployer in order to or with same nonetheless, pay; job except as to back if the is unconditional employer to return to refuses allow where an Rights Civil employee complies with an unlawful discrimi- work unless that employment, employee natory not failed to condition of has damages. mitigate

Opinion Ryan, J. Pay. Rights Employment — — Back 4. Discrimination Civil only employee is dis- should be awardable where an Back charged discriminatory comply refusal to with a condition for employment, not where is terminated be- resignation. employee’s cause of the Separate Opinion Levin, J. Rights Employment — —

5. Civil Discrimination Constructive Pay. Discharge — Back discharged employee formally An who is not and who declines to working may unlawful condition be awarded work under an working unpleasant pay if difficult or condition is so person employee’s that a reasonable in the shoes would have conditions, compelled resign; employee under such felt however, discharged; constructively where deemed to have been condition, unlawful, working although is not difficult or unpleasant, deemed to have construc- is not been and, discharged ordinarily tively while entitled to reinstate- ment, pay. is not entitled Mitigation Employment — — 6. Civil Discrimination Damages. An who is instructed to work under an unlawful burden, the condition is condition has the unless person unpleasant difficult, would feel so reasonable endure, perceived compelled resign, temporarily, a at least challenging injustice while the condition. Kelley, Attorney General, J. Frank J. Louis League, Caruso, General, E. Solicitor Felix Jack Blumenkopf, Moquin, and Michael J. Assistant plaintiff Department Attorneys General, for Rights. Starr) (by Starr, for Bissell & Hackett H. James plaintiff Cornell. Coey, (by Swift,

Foster, P.C. John L. Collins & Mich Opinion Williams, C.J. Nerat, Brookover, J. and Frank Collins, George M. Jr.), the defendant. for

Amici Curiae: Sugerman,

Miller, Cohen, P.C. Martens & (by Goodman, Obee), M. P.C. A. and Richard (by John Lister), Trial Asso- Susan E. Michigan Lawyers ciation. Heldman) C. & Heldman Victoria

Schaden (by Michigan. of for Association Lawyers Women Williams, C.J.

I. Introduction for presents two issues determination This case previously it consid- has by this Court which should be is standard The first issue what ered. determining pay to whether award applied 7(h) of Fair rights under the to civil claimant § a 423.307(h); Act, MCL MSA Practices Employment 17.458(7)(h), permit employer the refuses where complies unless she the to return to work claimant The second issue dress code. with a rights a claimant is entitled civil whether to the Fair the successor fees under attorney Act, Act, Rights the Civil Practices Employment 3.548(605)(2)(i), 37.2605(2)(i), (j), MSA (j); MCL fees, for such where provides specifically which prior three to the effective days was filed charge repeal Act and the of Rights date of Civil Act, does not Practices which Employment Fair attorney fees. provide generally should pay that back conclude We finding of unlaw- there has been where awarded finding, ful Given such discrimination. reasons, if applied which denied for only be should Rights Civil Opinion Williams, C.J. pur- statutory would not frustrate generally, Act. The Practices poses Employment the Fair first, to eliminate twofold: purposes were statutory second, and, discrimination, vestiges the last have suffered from discrim- whole those who make us, find that before we ination. On record that would for reasons trial court denied back pur- statutory of the above central frustrate both poses. fees, find ourselves we respect attorney

With has Cornell to reach this issue. Claimant unable as she review this Court inasmuch precluded to raise the issue before the failed Commission, appeal from the commis- failed the cir- ruling, and raised issue before sion’s real ground any court on a different without cuit accompanying argument. Ap- reverse the the Court judgment

We toas judgment as to back and affirm its peals pay, attorney fees.

II. Facts with the complaint K. Cornell filed a Starrla Rights against of Edward W. Civil Department 5, on Hospital May Association or about Sparrow department charge against issued a 1976. The 28, 1977. were con- Hearings on March hospital 13, 5, 6, 12 May a on and before referee ducted findings issued and rec- hearing 1977. The referee hospital. in favor ommendations 23, 1978, Rights the Civil Commission May On recom- findings order and rejecting issued opin- and adopting of the referee mendations Harbrecht, Paul H. Commissioner by ion issued Among Cornell. other in favor of Ms. finding No pay. was awarded back things, the claimant attorney fees. mention was made 423 Mich Opinion Williams, C.J. Sparrow Hospital appeal filed a claim of Only 19, The Ingham Court on June 1978. Circuit novo, af- judge, reviewing matter de circuit ruling respects, firmed the of the commission all benefits, wages, that he lost except denied fees. attorney Reconsideration was denied. Rights Department Ms. Cornell and the of Civil Appeals. to the In to one appealed Court a two decision, the circuit Appeals the Court of affirmed Hospital Sparrow court. (1982). Ass’n, 387; 119 Mich App NW2d in a two decision. Rehearing was denied to one filed applications Court denied the for leave This department. reconsider- Ms. Cornell and the On ation, leave to granted appeal. this Court Hospi- employed Sparrow Cornell

Starrla was 1, 1972 until histotechnologist a from July tal as report told when she was May later de- with what was complying work without dress code. The clared to be dress a full technologists to wear required female code uniform, including certain pastel-colored or white socks, dresses, shoes, underclothing, pantsuits. addition, technologists admonished female were and accesso- "respectable length” to wear skirts Male technolo- for the situation.” "appropriate ries hand, permitted to wear on the other were gists, cloth- over street ordinary coat laboratory white the dress testified that director ing. laboratory used patients were justified because code females like doctors seeing males dressed like nurses. dressed ex- Rights introduced of Civil Department of the discrim- effects testimony regarding

pert at the female technicians dress on lab inatory code testified psychologist Hospital. social One stereotypes negative the code reinforced that Spakkow Rights Civil J.C. Opinion Williams, do,” gave and them told what "must be females makes them function that inferiority a "sense of Another social workplace. in the effectively” less female lab requiring testified psychologist implied uniform that a kind of technicians to wear male lab tech- status than the were of lower they on the burden psychological increased the nicians established testimony females. Additional less more conve- costly uniform was female males. required than that nient 1, 1976. May was instituted on This dress code twice wear- to work at least reported Ms. Cornell required for inconsistent with that ing clothing code, for male acceptable but females under on She was sent home of her status. employees above, occasion, and, told not as noted each proper attire accordance to work without return the code. Pay III. Back right Cornell’s to back issue involves Ms. This permit her Hospital refused where pay, specific work unless she wore report This dress code for females. only required uniform to be Rights Commission found the Civil Act, Practices the Fair Employment violative (re- 17.458(1) seq. et MSA seq.; 423.301 et MCL Act, superseded by the pealed seq.), et seq.; MSA 37.2101 et MCL 3.548[101] which, alia, it to an unfair labor declared inter . . . because any employer practice "[f]or individual, other- to refuse to hire or any sex of respect him with against wise to discriminate tenure, terms, privileges hire, conditions 423.303a(a); MSA MCL employment.” Mich 548 Opinion Williams, C.J. IT^SÍSaXa).1 the Prac- Under Fair Employment Act, the commission determined that tices where in an respondent engaged employ- the has unfair practice: ment findings shall its of fact commission state [T]he shall and to be on such

and respondent issue cause served requiring respondent an order such and from such unfair cease desist or practice and to take such further affirmative purposes this action will effectuate the of other as act, to, hiring, including, reinstate- but limited employees of without upgrading ment or or pay, restoration to union or admission or including requirement reports membership, compliance. Upon the the of submission of manner reports compliance, may of the commission of such issue a stating respondent order that declaratory employment prac- unfair engage in has ceased to 17.458(7)(h). 423.307(h); Emphasis MSA tices. [MCL added.] in or- Commission this case Rights

The Civil dered, alia, that claimant be reinstated inter the the The circuit court reversed pay. with back code, as of because dress award "[t]he instituted, purposeful amount to such does not the attain- prohibit as to invidious discrimination Rights comparable provision is MCL in Civil Act the 3.548(202)(1). charge 37.2202(1); the Civil issued here MSA days Department the date of Rights filed before effective three Rights repeal Employment Practices the of the Fair Civil Act and filing such, case, except proceedings in for the this As all Act. charge, Act. referee and commission repeal Employment Practices the Fair occurred after hearing rights Nonetheless, parties, and the civil courts litigation throughout proceeded this have Employment not decide Act. We do the Fair Practices under purposes proceeding of our discussion propriety under that act. For Rights provision case, Civil that the back this we note 3.548(605), respects, lan Act, guage, sor, 37.2605; is in all relevant MSA MCL predeces present history purpose, in its the same as 423.307(h); Act, MSA MCL Employment Practices the Fair 17.458(7)(h). Rights Opinion Williams, J.C. Ap- The Court of gainful employment.” ment of disagree and re- peals affirmed decision. We verse. provision involving back-pay

The issue Practices Act is one of first Employment Fair fact, in this Court. In there is little impression Michigan. guiding precedent no on this issue hand, courts, have had The federal on the other provision experience comparable far more with a of the federal Civil Act of 42 USC 2000e-5(g). provision That reads: respondent If the court finds that the has inten-

tionally engaged intentionally engaging in or is employment practice charged an unlawful complaint, in the respondent may enjoin the court engaging employment prac- from tice, in such unlawful may and order such affirmative action as include, appropriate, may which but is not limited to, without back hiring employees, reinstatement or of with or pay (payable by employer, em- organization, ployment agency, or labor as the be, may responsible employ- case ment for the unlawful practice), any equitable or other relief as the appropriate. pay liability court deems Back shall years prior not accrue from a date more than two filing charge to the of a with the Commission. earnings Interim sonable inated or amounts earnable with rea- diligence by person persons or discrim- against operate shall to reduce the back pay otherwise allowable. No order of the court require shall individual as member of a reinstatement, employee, the admission or reinstatement of an union, hiring, or the promotion or of an individual as an payment any or the to him pay, of admission, if such individual was refused sus- expelled, pended, or or employment was refused or suspended or discharged advancement or for any reason other than discrimination on account race, color, sex, religion, origin of or national or in 2000e-3(a) [Empha- violation of section of this title. sis added.] Mich 548 423 Opinion Williams, C.J. construing 42 USC federal case preeminent Paper Moody, Co v 422 US

2000e-5(g) Albemarle (1975). Although 2362; 45 L Ed 2d 280 405; S Ct here, find binding on us we case law is not federal compelling. See the Albemarle reasoning Chrysler Corp, App Mich Rights Comm (1977). 4;n NW2d A. Albemarle Albemarle, on brought a class action was employees black present and former

behalf alleging certain Paper Company, the Albemarle federal Civil of Title VII of the violations Act, sys- company’s seniority to the respect One testing. program employment tem and its the United States issues before primary Supreme Court on certiorari was: applicants employees employment When wages opportunity to earn because have lost the engaged in an unlawful discrimi- employer has practice, what standards natory deciding court should a federal district follow [Albemarle, deny backpay? whether award or

supra, p 408.] that 42 USC 2000e- Albemarle Court noted authorizing an award "may” the term in 5(g) used that award any and hence concluded pay, of back an award of back is discretionary. Since restitution, the award and a form discretionary Loether, v nature, see Curtis in equitable also is 189, 196-197; 1005; S Ct 39 L Ed 2d 260 94 415 US " (1974), . . . mechanical rules 'equity eschews ” Albemarle, supra, p flexibility.’ depends on [and] Armbrecht, v 392, 327 quoting Holmberg 417, US (1946). 90 L Ed 743 396; 582; Despite Ct 66 S award, nature of the how- discretionary/equitable ever, author- the Albemarle opined Court that 561 1985] by Opinion Williams, J.C. far from an award was or such ity grant deny unlimited: left to a discretionary choices are not [S]uch "inclination, judgment; to its and its but court’s legal princi- guided by

judgment is to be sound (No 30, Burr, 25 F 35 ples.” United States v Cas 1807) C.J.). (CC (Marshall, 14,692d) power Va Congress, backpay as to award was bestowed part complex legislative design directed at a of a proportions. A court must historic evil of national large power light objectives exercise this "in of the 321, Act,” Bowles, 321 US 331 Hecht Co v (1944). 587; S Ct 88 L Ed That the court’s [64 discretion is nature, equitable Curtis v see Loether, 189, 1005; 39 L 2d 415 US S Ct Ed [94 (1974), hardly means that it is unfettered 260] meaningful thorough standards or shielded from appellate review. Congress invokes the Chancellor’s con- [WJhen legislative pur-

science to further poses, transcendent required principled applica- what is the purposes tion of standards consistent with those "equity and not varies like the Chancel- [which] L.C., Pritchard, [Eldon, lor’s foot.” Gee v *403, *414, (1818).] Eng Rep Swans Important regime sults for breaches of goals national would be frustrated "produce[d] of discretion that different re- duty in situations that cannot policy.” Moragne be differentiated in States Ma- Lines, 1772; 398 US 26 L rine S Ct Ed [90 (1970). [Albemarle, supra, pp 2d 339] 416-417.] foregoing, accordance with the the Albemarle Court held a trial court’s decision to award deny against must be measured of Title purposes VII. of Title VII was to achieve primary purpose

equality opportunities and remove operated barriers have to favor one identifia- Mich 548 J. C. Opinion Williams, is connected another. Back group ble over a provides catalyst it objective with this because and self-evaluate employers for self-examine discrimina- in an effort eliminate practices their Albemarle, supra, pp 417-418. tion. a that Title VII embodied

The Court also found for persons whole purpose, whole” make "make dis- to unlawful injuries suffered due was evi- purpose This "make whole” crimination. armed the Congress the fact that had denced powers, whose historic equitable courts with full " v justice,’ Brown purpose complete was to 'secure Swann, Porter 10 Pet (1836); see also Co, Holding Warner US 397-398 S Ct [66 (1946).” Albemarle, supra, p L 1086; 90 Ed 1332] the Albemarle Court stated Moreover, 418. nature injuries VII dealt with of an economic Title attempt should and that in such cases courts as the same party near place injured this occupied had position party would have not Court wrong Finally, been committed. purpose sup- was noted that the "make whole” VII. The legislative history Title ported by VII modeled on the back-pay provision of Title was Relations provision of the National Labor back-pay Act, the National Labor Relations under which as consistently Board has awarded The Albemarle Court stated matter course. this Congress it must assume that aware Albemarle, supra, 418-421. pp fact.

Thus, Title statutory purposes two central VII as set forth in Albemarle are to eliminate for persons inju- whole discrimination and make The Albe- through discrimination. ries suffered marle Court held that of unlawful "given finding discrimination, backpay only should denied which, if would applied generally, reasons . .” . . purposes statutory frustrate the central Rights Dep’t Opinion by Williams, J.C. Albemarle, 421. of this supra, p On the basis that the the Albemarle standard, Court concluded to back pay. were entitled employees 7(h) Employ- & Section of the Fair B. Albemarle Act ment Practices the Albemarle standard should be think that

We 7(h) Employment of the Fair under the standard § fact, dissenting agree we with Practices Act. that "the in the Court below Judge Mackenzie in as the Court reached for a result such case the state Albemarle compelling more under is of the federal statute.” than under statute Ass’n, Hospital supra, p J., dissenting). (Mackenzie, Title VII of the federal operative The section . . . order such affirmative may reads, "the court may include which appropriate, as may action pay . back . . with or without . . . reinstatement language clearly Such is 2000e-5(g). . . . .” 42 USC 7(h) Em- the state Fair Section of discretionary. hand, reads, Act, on the other Practices ployment . . . take such further affir- commission shall "the the pur- effectuate or other action as will mative act, . . . this . . . including reinstatement poses . . .” The "with or . pay with or without 7(h) sense of imparts some language without” § discretion, However, the ex- by discretion. statute, exercised so as of the shall be press terms of the act. purposes effectuate the to Albemarle, Furthermore, power as in Legislature as given by was award back that was directed at historic legislation part on the power bestowed this Legislature evil. legislative transcendent to "further commission Albemarle, supra, p per- 417. To . . . .” purposes provi- back-pay application mit inconsistent purposes. those to frustrate sion would be 423 Mich Opinion Williams, C.J. discussion, we the above In accordance deny grant the decision think that of the Fair purposes be measured must pur- find Act. We Employment Practices Act, like Practices Employment of the Fair poses and to VII, discrimination eradicate Title were suffered as persons injuries whole for make of discrimination. result discrimination eradicating purpose At the time this act itself.

clearly stated commenced, preamble the Fair action pertinent part, Act read in Practices Employment the welfare of promote protect act "An and elimination prevention of this state people poli- practices discriminatory employment seq.; . . MCL 423.301 et MSA . .” Preamble, cies (em- 17.458(1) 1976 PA 52 seq., et by as amended added).2 phasis consis- fact, forthrightly has and

In this Court construing purpose in tently recognized this and its successor Practices Act Employment Fair Bell Boscaglia Michigan Act. Rights the Civil See Co, 308, 314-316; 362 Telephone 420 Mich NW2d policies of to this state the welfare of the throughout MSA read much the same this action was welfare discriminatory employment MCL 423.301 et MCL 423.301 et from meaning Practices Act read 52 17.458(3) 1975 ^[2] discriminatory employment practices read, (emphasis As PA 17.458(3), originally in of the "An act 332). of et act employment. "unfair seq., the act as discrimination. See MCL added). (Emphasis prevention people itself which defines "unfair 17.458(3a). seq.; seq.; as commenced, enacted, people in practices amended promote as it MSA MSA pertinent part, this state added.) . did of this and elimination of . .” 17.458(1) 17.458(1) In practices ... and originally "An 1976, Preamble, preamble 1975 state in protect by prevention act employment. et et "An act preamble PA by seq. seq., and and as it did read at the the welfare prevention preamble 332. MCL policies promote policies (before as amended the Fair employment practice” (Emphasis was amended unfair 423.303 promote and elimination . .” 423.303, 423.303a; . . . 1975 . . . was amended and elimination of can be practices et .” Employment .’’Preamble, amendment, by 1976 PA added.) protect and seq.; Preamble, people gleaned in 1975 protect MSA time and of of 565 Opinion Williams, C.J. 355, Corp, Muer Mich v C A 420 Miller (1984); 642 Park v (1984); Highland 362-363; 362 NW2d Comm, 364 Mich 508, Practices Employment Fair (1961). and em- We reiterate 512; NW2d purpose. that dominant phasize of the act VII, purpose major Title a second Like on injury suffered those who to make whole was previously As practices. account of Title out that the Albemarle noted, pointed Court powers equitable full the courts "with VII armed purpose equity "it is the historic . . .” and that Albemarle, ....’” complete justice to 'secur[e] Swann, supra, p Brown v supra, p quoting the Fair part purpose This historic 503. because, Act much Practices Employment VII, Practices the Fair Employment as Title same full array the commission a upon Act bestowed MCL in nature. See equitable that were powers Albemarle, supra, p 17.458(7). 423.307; MSA Swann, supra, Brown v p 503. The Fair quoting injuries Practices Act also dealt with Employment nature, in and as the economic largely that were Albemarle, such situations Court stated may as near as party placed, is to be injured "[t]he if the be, occupied he would have in the situation Albemarle, su- had not been committed.” wrong Hoppock, Wall quoting Wicker v 418-419, pra, pp (1867). 94, 99; 18 L Ed 7(h) addition, Fair Prac- Employment § VII, Title Act, provision of back-pay tices like the Labor corresponding on the National was modeled Bell Boscaglia Michigan provision, Relations Act Co, Highland supra, p n 12. See Telephone Comm, supra, Employment Practices Park v Fair the Na- provision, 516-517. Pursuant pp back Board has awarded tional Labor Relations Albemarle, supra, pp of course. as a matter pay Legislature the assume that 419-420. We must 423 Mich Opinion Williams, C.J. back-pay it the fact enacted aware of this when Act. Employment Practices Fair provision Sands, Albemarle, 2A Suth- supra, pp 419-420. See (4th ed), 52.02. Statutory Construction § erland 7(h) of Fair Employment We conclude § to eliminate purpose, Act had a twofold Practices those who have and to make whole discrimination Thus, following through discrimination. suffered discrimination, back pay finding of unlawful which, if except for reasons not be denied should not defeat these two cen- would applied generally, tral purposes.3 in the Case of Back Instant Pay

C. Award court an incorrect standard applied trial to the claim- pay deciding whether to award pay award back trial court refused to ant. The did not amount "to such the dress code because as pro- discrimination and invidious purposeful employment.”4 gainful hibit attainment seek eliminate However, only the act does not discrimination, all and invidious” but "purposeful Therefore, whether question discrimination. purposeful of a invidious the discrimination is controlling. nature not is First, purposes.

An serves two of back award to examine and evaluate encourages employers it eye with an toward conditions have ef- eliminating discriminatory those which Albemarle, 417-418, 422. supra, pp pur- This fects. only if is awarded pose is not served and invidi- against employers "purposefully who here, While, present ruling applies our a situation such as that commission, equally it in the to the award of first instance reviewing reviewing subject proper applicable courts to the light, court the commission or declines standard. award back In this whenever pay, necessary it is to articulate the reasons therefor. See Albemarle, p supra, n 14. hospital’s regarding comment whether or We make no purposeful or invidious. dress code was 1985] Opinion Williams, C.J. The un- impose discriminatory conditions.

ously” in of an witting equally discriminator need undergo incentive to self-evaluation. purpose back-pay

The second award is compensate a claimant for economic losses suffered practices. as a result of Such losses discriminatory exist to the attitude with which regard without working employer imposes discriminatory Awarding pay only purposeful conditions. for and invidious discrimination thwarts this second purpose too. Albemarle

The trial court denied back for a reason similar to that the circuit employed by Supreme court in this case. The Court of the as inconsistent rejected United States basis purposes with the of the act: grounds denying The District Court’s stated against backpay in this case must be tested these ground standards. The first was that Albemarle’s breach of Title VII had not been This is not a sufficient reason for "bad faith.” denying backpay. employer Where an has shown bad faith — maintaining practice illegal to be a which he knew highly questionable legality or of claims whatsoever on the Chancellor’s conscience. But, can make no —he VII, the mere absence of bad faith under Title depress simply opens equity; the door to it does not If employer’s backpay the scales in the favor. were faith, showing only upon awardable of bad remedy punishment for moral would become compensation for work- turpitude, rather than a injuries. ers’ This would read the "make whole” VII, purpose right out of Title for a worker’s employer injury did not inflict simply is no less real because his it in faith.” Title VII is not "bad employer’s "good intent or concerned with "Congress of intent” for absence consequences of the Act to the directed thrust practices, simply the motiva- Co, [424,] 432 Griggs 401 US tion.” v Duke Power 423 Mich Opinion Williams, C.J. 849; (1971)]. L Ed 2d 158 See also S Ct [91 City Memphis, 526, Watson 373 US S [83 (1963); Wright v Council 1314; 10 L Ed Ct 2d 529] Emporia, City 461-462 S Ct 407 US [92 (1972). 2196; [Emphasis 33 L Ed 2d added. Albemarle, Albemarle, supra, pp 422-423. See su pra, p MERC v Reeths-Puffer School 16; n Dist, 253, 266-267; (1974).] 215 672 391 Mich NW2d Court, Supreme reject Like the United States we the basis of pay the trial court’s denial of back on find that hospital’s alleged "good faith.” We defeat denial of back to this claimant would purposes the central of the act. that

Sparrow Hospital argues the circuit court’s denial of the claim- justified was because mitigate damages continuing ant failed to her argues at Sparrow Hospital. hospital work mitigated the claimant should have her dam- ages by complying discriminatory with the dress challenging validity.5 code while its simultaneously The circuit court seems to this same have shared opinion. hospital points out the United States EEOC,

Supreme Court Ford Motor Co v US (1982), 236; 3057; 73 L S Ct Ed 2d VII, duty mitigate held that under Title requires wronged individual a subse- accept quent employment wrongdoing offer of from the employer. hospital What fails to note is that Supreme although Court held that the offer need not include back it must employment pay, hospital’s otherwise be "unconditional.” Here the "offer of was not unconditional. employment” Rather, upon it conditioned Ms. specifically was testimony by plaintiff sought The record discloses that she However, employment attempt mitigate damages. elsewhere in an finding question general mitigation damages no on the was made below. Opinion Williams, C.J. compliance with Cornell’s an unlawful discrimina- tory dress code. hospital’s position wholly

Furthermore, purposes inconsistent with the of the act. Al- though justified complying the claimant in not discriminatory code, with the thereby unlawful dress employment, denied she would not be injuries. Likewise, made whole for her the em- ployer policies encouraged would not be to examine its eliminating eye

with an toward discrimi- hospital’s position encourage nation. The employees would comply discriminatory practices encourage by employers, employers established practices. to eradicate such ready, willing, Ms. Cornell was and able to work simply comply at all times. She refused to with the unlawful supervisor dress code. Ms. Cornell’s

refused allow her to return to work complied code, and, unless she with the when she so, did not do her was terminated. general wrongfully rule, While as a terminated employee seeking damages accept employ- must mitigate damages, ment to either with a different employer employer, job or with the if same the except pay, nonetheless, unconditional as to back employer employee where an refuses to allow an employee complies to return to work unless that discriminatory with an unlawful condition of em- ployment, employee mitigate has not failed to damages. hospital argues that the federal doctrine of discharge prevents

constructive Ms. Cornell from receiving pay. award Under that doc- quits voluntarily employ- trine, an who may "constructively discharged,” ment be deemed eligible pay only and hence for back when "work- ing . . . [become] conditions have so difficult or unpleasant person that a reasonable the em- 423 Mich 548 Opinion Williams, C.J. to re- compelled have felt shoes would ployee’s Co, Mfg Electrical v Powell sign.” Bourque Alicea Rosado (CA 5, 1980), quoting F2d 1977). (CA 1, 114, 119 Santiago, 562 F2d Garcia the fact of discrimination deem generally Courts quitting, justify voluntary insufficient to alone to attack discrimina- encourage employees order of a the context working conditions within tory Bourque, su- continuing relationship. employment pra, p 66. question to address are not inclined

We discharged constructively Cornell was whether Ms. actually that she was facts indicate because the above, ready, she will- As stated discharged. findings at all times. ing, and able work the Civil hearing referee fact of both the included statements Rights Commission Ms. Cornell’s made a condition of dress code was Ms. Cornell hospital and that at working as prevented from "was terminated with the comply” of her failure the result light of the fact- of the dress code. requirements and lower tribunals finding of the administrative courts, finding hospital accept we refusing comply discharged Ms. Cornell for code.6 See also EEOC dress (SD 599, 608, 613 Corp, Supp 507 F Sage Realty 1981). NY,

However, the doctrine of construc- even under eligible would find Ms. Cornell discharge tive we in her a reasonable for back because resign. compelled have felt situation would two different dress Hospital imposed dress technologists, a male laboratory its codes on findings "was sent stated that Ms. Cornell The circuit court’s policy she would be she adhered to the new home and told that unless terminated.” The Court refused to conform she was stated, Appeals opinion "When Cornell code, provisions appearance of the dress her (1982). 387, 390; discharged.” App 326 NW2d 519 119 Mich Opinion Williams, C.J. code and a female dress code. The codes were designed to intentionally reinforce sexual stereo- doctors, men types: were dressed to look like women were dressed to look like nurses. complained

Ms. Cornell about the discriminatory nature of the dress code to a member responsible committee for designing the codes and supervisor to her several times before the codes became effective. complied Cornell with the male dress code after the codes became effective. She again called her supervisor’s attention to the dis- criminatory nature of the dress code when the supervisor called her from away her work station and sent her home to change light clothes. the obviously demeaning nature of the dress code and of her employer’s unwillingness to reexamine code, its dress it was reasonable for Ms: Cornell to return to work. We therefore find that under the doctrine of constructive discharge, Ms. Cornell is entitled to receive back pay.

We reject also several aspects of the minority’s analysis constructive-discharge doctrine. opinion The minority justifies the denial of back under the constructive-discharge doctrine for First, at least two reasons. management’s ability manage is impaired when the threat of back makes it unable to enforce employment condi- tions which Second, are arguably discriminatory. emotional damages distress may be available compensate the victim of discriminatory employ- ment conditions for period in which illegal condition tolerated. was.

These justifications are inadequate and funda- mentally undermine the intent underlying Civil Rights Act. The minority concludes that it analysis applies "is beneficial to both employers Post, and employees.” p because, 584. This is minority argues, 423 Mich Opinion Williams, C.J. retro- ... be made whole employer cannot . . . not en- Requiring employer the actively. [to] it employee considers rule whenever an

force] management’s impair discriminatory . . . would ability to large plants, the result could manage. In Post, pp 585-586. disruptive. be "disruption” and "serious of such No evidence back-pay liable in businesses impairment” Certainly in case. the this produced awards was opposite. Un- very the case demonstrates present management ability is the essence of very less the working upon conditions discriminatory impose harm imagine any it is difficult employees, whatsoever, Sparrow Hospi- "disruption,” alone let introducing and from not have suffered tal would Thus, this code. adopted dress enforcing newly its problems address the in which to is not the case to man- "management’s ability "disruption” assuming they exist. age,” states, hand, the minority the other the On "[i]f con- discriminatory despite on stays 'made dition, ordinarily can Yet, Post, 585. as p retroactively.” whole’ footnote, post, p in a concedes minority distress held that mental has never this Court discrimi- for employment recoverable damages are fact, is on a Thus, minority relying nation. whole the employee to make with which remedy Boscaglia v at all. not be available may which 13; n Kewin v Massa- Bell, p supra, Michigan 401; 295 Co, 409 Mich Mutual Life Ins chusetts LaCroix, 4; 179 384 Mich (1980); Daley NW2d (1970). NW2d concedes, ap- under its

Indeed, minority as are recov- damages distress unless mental proach, would job on the erable, who remains "a worker Rights Dep’t Opinion Williams, C.J. receive nothing for successfully challenging Post, unlawful condition.” p 585. Implicit is, acknowledgment course, this recognition who employer illegally discriminates subject is to no more than a declara- tory judgment or, its policy illegal, worst, at an injunction against continuing the practice. Thus, the minority’s analysis removes "the spur or catalyst which causes employers ... to self-exam- ine and to self-evaluate their employment prac- eliminate, tices and to endeavor to so possi- far as ble, vestiges the last . . .” Albe- discrimination, marle Paper Co v Moody, supra, pp 417-418, quot- Industries, Inc, United States v NL ing 479 F2d (CA 1973). 8, Not only does the minority’s analysis eliminate employers’ incentives to criti- evaluate cally their employment practices policies also eliminates all incentives for em- —it to ployers cease and desist from a discriminatory practice once they recognize it as being illegal. Instead, are they encouraged to wait until declaratory judgment of illegality becomes final— and, indeed, there is no reason for them not to "new,” simply institute different, slightly policy and let the employees go through the entire court- process fact, all over again. In the minority’s incentive, is an analysis an encouragement, to employers continue to discriminate. addition, vulnerability to mental distress

damages is far more likely disruptive management than vulnerability back-pay awards. An known, award of back pay is a rela- tively easily figure. contrast, calculable dollar By the award of mental damages distress will vary from widely and, doubt, individual to individual no from jury jury. Management can calculate the financial risk of imposing an arguably discrimina- tory condition far more accurately when back pay, 423 Mich Opinion Williams, C.J. damages, distress is an available

and not mental remedy. resigns because of an arguably

An who will not condition in the form of back if a be assured a windfall illegal. finds that the condition was court later general duty under a to miti- always seeking other damages by employment, as gate at footnote 5. mentioned above trial judge improperly conclude that We pay. the commission’s award overturned Attorney IV. Fees should argues attorney Ms. Cornell fees the circuit court and com- have been awarded Act. MCL Rights under the Civil mission 3.548(605)(2)(i), 37.2605(2)(i), (j). The claim- (j); MSA that her action was filed under ant admits Act the effec- Practices before Employment Fair Act, March 1977. Rights of the Civil tive date . however, provi- fees attorney argues, She to be Act should be held of the Civil sion it in nature. We is remedial retroactive because the merits of the unable to reach find ourselves has failed to because she argument claimant’s the issue for review. preserve clearly Act did Practices Employment The Fair fees, while the Civil attorney for provide 37.2605(2)(i), does, MSA (j); Act MCL Rights clearly 3.548(605)(2)(i), complaint filed a Ms. Cornell (j). Employ- the Fair under Sparrow Hospital against 5, 1976 with May Act on or about ment Practices department That Rights Department. the Civil under hospital charge against issued a 28, on March Act Practices Employment Fair Rights Opinion Williams, C.J. date the effective days three before 1977. This was Act. Rights of the Civil referee on before

Hearings were conducted his 13, 1977, he issued 6, 5, 12 and May soon thereafter. findings and recommendations were sub- recommendations findings and These Commission Rights the Civil stantially rejected hospi- Only 1978. May dated final order court on June to the circuit sought appeal tal 1978. in effect Act was

Although Rights the Civil Rights Com- before the Civil during proceedings all complaint, filing the actual except mission In never raised.7 fees was attorney the issue fact, does not even the order of the commission or the other. way address the issue one Moreover, an appeal Cornell never filed Ms. Instead, the commission. she from the order of along fees with her requested attorney simply 7(h) relief, citing of the Fair request for other § 423.307(h); MSA Practices Act. MCL Employment 17.458(7)(h). fees was made attorney No claim Act, did the claimant Rights under the Civil nor regarding applica- the retroactive any raise issue Rights attorney provi- tion of the Civil Act’s fees to the award of the commission. It was not sion sought until the claimant review the Court fees Appeals right attorney that she claimed under the Civil Act.

Thus, the claimant failed to raise the issue commission, from appeal before the failed to complete proceed We note that we do not have the record of the However, ings deny before the commission. Ms. Cornell does not hospital’s attorney assertion that the issue of fees was never raised. fact, during argument oral counsel for Ms. Cornell conceded as Moreover, hospital’s supported by assertion is the commis much. sion’s opinion attorney makes no mention of fees. which 548 423 Mich

576 Opinion Williams, C.J. before raised the issue ruling,8 and commission’s without theory a different court under the circuit For these rea- argument. accompanying real any See sons, appeal. not reviewable on this issue is 188, 191- Co, 376 Mich Consumers Power Turner v White, 342 Mich (1965); 1 Odoi v 192; 136 NW2d Dwelley Tom (1955); 709 577; 70 NW2d McDonnell, Inc, 233; 54 NW2d 334 Mich (1952).

V. Conclusion dis- given finding of unlawful We hold that Practices Employment under the Fair crimination Act, be denied to a claimant pay only should which, if would applied generally, reasons of the act. The two purposes the central frustrate dis- of the act were to eliminate purposes main who suffered and make whole those crimination Denial of back on account of discrimination. injury frustrate the facts of this case would under pay purposes. of these both fees, has Ms. Cornell respect attorney

With she has review this Court because precluded preserve appellate the issue for properly failed to review. foregoing, with the we reverse accordance Appeals as to back Court

judgment as to attor- of that Court judgment and affirm the circuit court for deter- fees. We remand to ney mitiga- mination of the amount tion.

Cavanagh JJ., Boyle, Wil- concurred with liams, C.J._ novo does not absolve that the circuit court’s review is de The fact responsibility to the issue before the com raise

the claimant preserve appeal in order to issue and seek an therefrom mission for NW2d Lehman, 446, 457-458; appellate 350 Mich review. See Alford v (1957). Rights Dep’t Opinion by Ryan, J. I Ryan, (concurring). plurali- concur with the J. appellant that Cornell was fired determination ty’s the comply discriminatory her refusal to with that she is entitled to back pay. dress code and However, I cannot subscribe to a number state- and, opinion in my plurality ments brother’s therefore, separately. I concur I agree do not with the criticism of

Specifically, underlies the doctrine of con- the rationale that discharge. constructive-discharge structive among function performs doctrine useful oth- weeding proper out frivolous claims.1 ers case, it Court may appropriate adopt for this to as the constructive-discharge doctrine standard used to determine whether is due pay to be back voluntarily resigned. who has This is employee not such a case. I concur with the award of back

Additionally, Cornell, to Ms. but to the extent that she pay only was determined to have been fired. Some of the in language opinion suggests, of the plurality dicta, that should be awarded ordinarily back whether is terminated dis- charge resignation. I do not concur in this language. agree I plurality only broad with the that, it for excep- the extent would hold save case, presented circumstances in this tionable is awardable when an is dis- charged for refusal with a discrimina- comply condition of tory employment. 1982) (CA (constructive- See, Texaco, e.g., Junior v 688 F2d 377

discharge employee voluntarily resigned claim dismissed where after were performance evaluation; working he received a low conditions tolerable); Cleland, 668; Supp more than Nolan v 482 F 55 ALR Fed 1979) (ND Cal, (constructive-discharge dismissed; resigna 411 tion was not the employment prior claim accepted product of duress where other Dillon, resignation); Supp F Neale v 1982) (ED (no NY, discharge employee’s resigna constructive where situation, product tion was not the her own of an intolerable work but rather personal being passed promotion). over for embarrassment at 423 Mich by Brickley Opinions Levin, JJ. Ryan,

Riley, J., J. concurred Brickley, with the (concurring). I concur J. separately but write plurality, result of separate Justice Levin’s agreement with express com- standard opinion, adopting difficult or must be "so plained-of discrimination em- person that a reasonable unpleasant compelled resign” felt would have ployee’s shoes constructive-discharge analysis. requiring a awarding of in the agree plurality I with the action I think the pay because standard, resulting a con- here offended this discharge. structive

Levin, K. Cor- issue is whether Starrla J. The go again "to home was asked nell —who code subse- comply clothes” to dress change discriminatory be entitled found to quently —is pay. developed analysis have an The federal courts should awarded to deciding pay when back discharged and formally who is not employee an working an unlawful declines to work under who be awarded back employee may condition.1 The condition is "so difficult or working if the in the em- person that a reasonable unpleasant to re- compelled have felt ployee’s shoes would Co, Mfg v Powell Electrical sign.” Bourque 1980).2 (CA 5, working If the condition F2d em- unpleasant, or is found to be so difficult "constructively have been is deemed to ployee prece Appeals often follow federal This Court and the Court containing rights legislation construing provisions of federal civil dent language corresponding Boscaglia rights to this state’s civil act. See (1984). 308, 323; Bell, Michigan 420 Mich 362 NW2d 642 Santiago, 562 119-120 v Garcia F2d See also Alicea Rosado 1977). (CA 1, Sparrow Separate Opinion Levin, J. discharged” and back If the work- awarded. ing although is, unlawful, condition not so difficult unpleasant, employee is not deemed to have constructively discharged; employee been ordi- narily is entitled to be reinstated not but is enti- pay. tled to back plurality says

The the constructive-dis- charge only applies employee doctrine when the resigns. plurality concludes that Cornell did resign, discharged. not that she was In the instant case this is a dubious distinction. resignation,

Cornell did not submit her Sparrow discharge Instead, did not her.

indicated that Cornell’s continued submitting was conditioned on her to the dress Sparrow’s return, code. She free but on terms. constructive-discharge doctrine is not based

on a distinction as narrow as whether the em- ployer employee or the blinked. The constructive- discharge analysis applies employee whenever an position working is in a to continue and chooses discharges employer not to do so. When an employee, employee mitigate damages cannot by continuing employer. to work for If the discharged, is ordinar- ily must, unless the unlawful condi- unpleasant, working tion is so difficult or continue challenging while the unlawful condition. Cornell discharged. option was not She had the of contin- ued under conditions. court, The circuit which ordered Cornell rein- pay, apply stated but denied did not construc- tive-discharge analysis reaching its decision denying pay. I would remand to the circuit back-pay decision, court for reconsideration of the applying analysis. the correct mode of Mich Opinion Levin, J. Separate

I a histo- Sparrow as working for began Cornell laboratory in a She worked in 1972. technologist slides, assisting and making receiving specimens, code, re- a dress instituted pathologists. complete uniforms to wear white women quiring underclothing socks and and white shoes with employees Male for the situation.” "appropriate to wear only required work were doing the same code, the dress purpose The lab coats. white director, please towas laboratory according to as doctors dressed employees to male used patients A com- as nurses. dressed employees female and female, had and male employees, of lab mittee uniform. chosen the be- the differences about complained

Cornell to her dress code and female the male tween to her and also the committee on representative on the committee representative Her supervisor. be- the difference concerned about not seem did appears supervisor Her uniforms. tween committee’s decision. her it was the have told effect, code was the dress day the first On wear- She was until the afternoon. worked Cornell supervisor Her and a lab coat. street clothes ing she told her office and her into his called code, and go and home the dress with comply must had communicated him that she She told change. suggested supervisor an attorney. the matter. to discuss attorney in her bring she bring did she indicate whether record does not returned with- later she days Two attorney. in her minutes, twenty After the uniform. wearing out office. He supervisor’s to the was summoned she go you have to ask her, going "I am told She left change clothes.” again home returned. never Rights Dep’t Sparrow Civil Separate Opinion by Levin, J. complaint Michigan

Cornell filed a with the Department Rights, of Civil which found discrimi- nation on the basis of sex and ordered reinstate- pay. ment and back The circuit court affirmed the finding discrimination, but reversed the commis- pay. sion’s order of court, back The circuit finding pay, that Cornell not entitled to back characterized the conclusion of the relationship: "Claimant chose not to adhere to the employment.” code and thus terminated her Appeals holding affirmed, The Court of would not be ordered because there were special justifying no circumstances the award. The Appeals Court of characterized the termination of employment differently, Cornell’s "When Cornell appearance provi- refused to conform her sions of the dress to the discharged.” code, she was II challenge does not the determination discriminatory. the dress code was Men and performing women the same work were treated differently apparent except for no reason "sexual stereotyping.”3 Cornell is entitled to reinstatement. pay is, however, Back a different matter. employee who,

An in the words of the circuit employment” court, may has "terminated her application entitled to in the constructive-discharge doctrine. A constructive dis- charge challenged working occurs when the condi- unpleasant tion is "so difficult or person that a reasonable employee’s in the shoes would have felt compelled resign.” Bourque, supra. Stated some- " differently, 'mitigate what must damages by remaining job’ job on the unless that Sparrow, 387, 391; App 119 Mich 326 NW2d (1982). 423 Mich Separate Opinion Levin, J. rea- that a situation

presents aggravated 'such ” resign.’ be forced employee would sonable Marsh, F2d 355; 665 Clark v App 214 US DC (1981). 1168

A Appeals of Bourque, States Court In the United discrimination, no found but for the Fifth Circuit com- the female discharge, where constructive counterparts than male paid less her plainant position.4 in the same Clark, of for Appeals

In States Court United of Circuit found discrimina- the District Columbia em- discharge where an and a constructive tion an work record was "contin- excellent ployee receiving promotion one uously spurned,” only & Root v Brown Construc- years. Meyer In eleven (CA 1981), Co, 5, tion 369 the United 661 F2d for Fifth held of Circuit Appeals States Court when, discharged constructively that a woman was she pregnant, she was telling supervisor after her moving involved to duties was transferred her and thereby endangering heavy equipment, her child.5 unborn has construc- Appeals applied of Court

tive-discharge doctrine.6 that, manifesting in the 4 The held "discrimination itself Court alone, finding cannot, support unequal pay of a of be sufficient form constructive discharge.” F2d 65. 617 5 resign were that would cause a reasonable Conditions college professor predominately in a also found where a white black against race. At and harassed on account her was discriminated one vated signing racially point colleagues moti coerced students into teaching petition "delinquent” habits and that accused her of Georgia job. University System drinking Bd on the Lincoln v 1983). 928, (CA 11, Regents, 697 F2d Schools, Community App LeGalley 127 Mich v Bronson (1983), 487; Appeals concluded that there the Court 339 NW2d discharge "plaintiff present failed to constructive onerous where was not a evidence of working of harassment.” conditions or Cross, 791, 797; App 141 Mich In Jenkins v American Red Separate Opinion Levin, J.

B arise in the context of question may A similar sought has to accommo workplace safety. Osha competing by promulgating date the concerns disciplin which bars an from regulation employer if who walks off the there is a ing job y.7 danger injur real of death serious Supreme The United Court sustained the States Mar regulation. Whirlpool Corp of this validity shall, 1, 17; 883; 63 L Ed 2d 154 445 US 100 S Ct (1980). discrimina-

Although engendered by the harms different, are the osha workplaces tion and unsafe sought is informative. to accom- regulation Osha fears of abuse and legitimate employer modate physical from risks. protection workers’ need off the allowing job a worker to walk Rather than unlawful, working condition was whenever (1985), plaintiff of a the was an assistant administrator NW2d Red Cross blood his new accepting refused to do either. He was then terminated center, overseeing departments. a number of When gave option superior his work and him the officer criticized pay resigning, job at the same he a different Red Cross report for failure to to sought damages The Court of He for racial discrimination. work. Appeals said: plaintiff position testimony of the that the new offered to "In view responsibilities severely and his were reduced was a demotion that arrived, executive we believe a reasonable after factfinder could conclude that the new tial new [a director] position not the substan- Program equivalent position Administrator. of the of Blood finding discharge supported of constructive is "We conclude that plaintiff required accept was not the could conclude that the to the evidence and that juror position foreseeable A offered to him. reasonable plaintiff’s working impact was that of defendants’ conduct unpleasant and that he would be conditions would become so difficult compelled resign.” to Id. at 797-798. 7Discipline is barred where: (2) "(1) faith; perform- employee good believes in that a reasonable danger ing assigned a real of death or serious work would involve (3) employee injury; of the the was unable to obtain correction (4) employer; time to the and there is insufficient condition danger through regular statutory enforcement the resort to eliminate channels.” Rothstein, Health, (Emphasis Occupational Safety p 219. supplied.) Mich 548 Separate Opinion Levin, J. severity right premised on the the to walk osha danger potential death or harm, real "a the serious regular inability injury,” "resort the and statutory enforcement channels.”

C justify sufficient alone is not Discrimination pay not to return chooses when back policies underly- "society the and because work ing if, wherever Title will be best served VII possible, is attacked unlawful discrimination existing employment rela- the within context of policy Bourque, supra tionships.” 66. at The same reasoning implemented analysis should be and comparable legisla- application of this state’s underlying right in the tion, the source case. instant may

Society be because discrimination benefits plant If the em- with less at corrected ployee paid cost. money awarded, is and is leaves performed. if not Even for services employer ordered, nevertheless must is replacement. generally pay train a to find and employ- employee might to find former be unable might during legal and even contest ment unemployed If the remain afterwards. stayed job, been an there would have

had on par- opportunity communication between for greater opportunity ties, to resolve them probabil- might differences, and there less their ity they have resorted a lawsuit.8 would

Although it is clear continued employers employees, to both beneficial employer why not the the reasons upon mitigate ordinarily called dam- should ages be suffering legal during by at least contest 8 Savings Ass’n, Young & Loan 509 140 v Southwestern F2d See 1975). (CA 5, 585 Separate Opinion Levin, J. injustice temporarily perceived need to be articu- legality of the that the I note at the outset lated. rule being usually has not contested or treatment begins. controversy when the determined been right, they and it can often are Both sides believe despite stays employee the on If the a close call. be discriminatory condition, ordi- can retroactively. narily If the dis- be "made whole” example, pay scales, is, for crimination employee paid what the difference between can be have been earned.9 and what should was earned case, where the discrimination In the instant pay differential, if Cornell had not involve a does chosen to continuing damages mitigate work, compensation might for be entitled to she mental distress caused wearing her the discrim- inatory uniform.10 employer cannot, however, be made whole mitigate employer Requiring

retroactively.11 enforcing damages by not a rule whenever 9 (CA 10, 923, Corp, Steel 509 F2d 930 See Muller v United States 1975). 10 Bell, Boscaglia Michigan supra 1 at n this Court n said: question, decisionally "Although Court has not addressed this whether, jurisdictions under similar in other are divided over courts statutory language, physical, ment discrimination.” damages agency may award for an administrative mental, employ- injuries suffered as a result or emotional compensation might justified in the instant case Mental distress regard to whether this continued to work—without —had Cornell gener- damages ultimately distress are concludes that mental Court ally job recoverable, a worker who remains on otherwise because challenging nothing successfully dis- an unlawful receive would 567, 572; Smith, criminatory 414 Mich Cf. Veselenak v condition. Credit, Inc, (1982); American Valentine v General NW2d Mich (1984). 423.307(h); 256, 263; MSA See MCL 362 NW2d 3.548(605)(2)(k). 17.458(7)(h) 37.2605(2)(k); If such MCL MSA exception general rule that compensation mental ing to a as an awarded recoverable, damages in formulat- this Court distress are exception to the full of the amount could confide control on a trial de novo. circuit court 3057; EEOC, 219, 232-233;102 Ct 73 L 458 US S Ford Motor Co v (1982). Ed 2d 721 423 Mich Separate Opinion Levin, J. discriminatory run the it considers manage- impair back-pay award would risk of a ment’s result could be plants, manage. large ability the to Reinstating disruptive.12 rules sub- discriminatory sequently would not to be found employer. rectify damage to the not the generally employee is in a better Because the damages ordinarily mitigate position can to retroactively readily the on the than whole more made placed employer, has the burden been employer, employee, endure, at least the to not perceived injustice. temporarily, an endurable Ill plaintiff plurality not did The declares that discharged. resign; rather she was

A plurality’s consequence decision labelling discharge, em- facts a that ployee without re- entitled becomes gard condition was whether unpleasant per- that a reasonable "so difficult or employee’s have felt com- in the shoes would son pelled plurality resign.” If the the had labelled resignation, a case then facts the instant only employee discriminatory if would be entitled not so difficult or condition was unpleasant. plurality The reasons the classifies resignation discharge not are not this a persuasive. discharge Sparrow summarily Cornell did noncomplying dress. Cornell she arrived in when resignation. Sparrow Rather, submit her did not Marshall, Whirlpool Corp supra at where the United of See "giving employ impolicy Supreme on the Court commented authority States might job they abuse off the which ees a unilateral in order to intimidate to walk employer.” or harass their Separate Opinion Levin, J. change her home with instructions sent Cornell dress to conform requirements of the dress to the plurality made a matter consider has code. able tion. From consequence characteriza turn on doubtful vantage point may

Sparrow’s it have vantage resignation. From Cornell’s as a been seen discharge.13 may point seen as it have been constructive-discharge analysis Application of the questionable characterizations not turn on should appellate by courts. of the same facts

B question a termina- is not whether The central discharge, resignation or a but classified a tion is failing justified employee an was whether mitigate damages by working under the chal- pursuing lenged discriminatory condition while judicial This issue is remedies. administrative drawing a between distinction not resolved quit employee deemed to or should be whether have been fired. appears plurality that whenever an to hold mandatory imposes

employer of em- condition ployment, chooses to leave and the job condition, con- than work under the rather apply; impos- structive-discharge analysis does not ing tantamount to actual is deemed the condition interpretation discharge. unduly This is an narrow ignores constructive-discharge doctrine law. the case

Ordering uniform as a to wear a an employment does not differ of continued condition accept requiring employee less or a from mandatory of continued condition transfer as a constructive-discharge Bourque, employment. applied analysis told she a woman was when was accept for the same than a man less must supra Young, n 8 at 142. See 423 Mich 548 Levin, J. Separate Opinion 63-64. In Alicea Bourque, supra at Rosado work. (CA 114, 1, Santiago, 562 F2d 119-120 Garcia Cross, American Red 1977), Jenkins 141 Mich (1985), 785, 791, 797; 369 NW2d App Co, 491 F Management Natl Frazer v KFC Supp (MD Ga, 1980), constructive-discharge analy- were applied employees required when sis to less as a condi- accept jobs transfers desirable cases, In all employment. of continued these tion surrender demanded unconditional "[employers] Young v Sav- Southwestern policy.” company 1975). (CA Ass’n, ings & Loan 509 F2d ap- constructive-discharge analysis was Similarly, Young an atheist refused to attend plied where meetings began monthly business meetings her the supervisor Her had told prayer. where a construc- mandatory. In all cases were found, have discharge was the courts could tive result, ignoring same constructive-dis- reached the characterizing the ter- charge analysis, simply discharge firing. as a mination of that Cor- emphasizes The plurality repeatedly She willing, and able to work.” ready, nell "was work, on willing only able to but and ready, was in all other were the employees her terms. So if the willing to work contested cases. were They removed, is, that if the scales was condition supra, Bourque, if the transfers changed, were withdrawn, Rosado, Jenkins, supra, supra, were meeting not prayer if was and attendance at required. "go home supervisor, Cornell’s

The statement clothes,” find- not change justify does again and so go told to home discharge. She was ing actual had If the uniform change her clothes. could she locker, have been sent she would in her been The circumstance change her clothes. her locker to her is change clothes go home that she had Rights Separate Opinion Levin, J. added noth- significant. "go not The words home” required that she would be ing to the statement condition; were working they with the comply to the statement. merely incidental relies on the decisions of the plurality The also Commission, Rights and the Civil hearing referee finding discharge place. that an actual had taken earlier, the circuit court characterized As noted "claimant chose finding the record that differently, to adhere to the code and thus terminated her not "light plurality states that employment.” fact-finding the administrative tribunals and courts, finding hospi- that accept lower we . . .” discharged tal Ms. Cornell. requires 29 of

Article section the Constitution findings de novo review the circuit court of the of the commission. This Court has said: "Our decision, appeal review on is of the circuit court . . . .” Dep’t not that of the commission of Civil Beznos, Rights 117; 421 Mich NW2d (1984). judge The circuit did find that Cornell discharged. He found rather that Cornell ter- employment. minated her own He did not find she was "go that the words home” meant dis- court, charged. It was for the circuit not the Court Court, Appeals, this or the Civil Commis- sion, findings to find the facts. The circuit court’s pre- should not be reversed unless this Court not, it pared say, they clearly has that were erroneous.

C constructive-discharge concluding After apply, plurality says does not analysis applied, constructively if it were Cornell was even should be awarded. discharged constructive-discharge misapplies analy- plurality light hold that plurality sis. The would "[i]n 423 Mich Separate Levin, J. Opinion obviously demeaning nature the dress code and of unwillingness employer’s of her dress return to resigns, unwilling reexamine its code, Ms. not to it was reasonable for Cornell most where an

work.” cases employer may be said to have been working reexamine the contested con- "Demeaning” working dition. conditions them- necessarily do mean that selves discharged. constructively Paying a been has woman less than man ing job a in is demean- the same discriminatory, but found not have was discharge Bourque, supra. been constructive Discriminatory are demotions and also transfers. demeaning, been but were found not have con- discharges supra Rosado, at structive Alicea or race is 119-120. Discrimination because sex generally demeaning, but discrimination alone constructive dis- not sufficient constitute charge. Bourque, supra; Cleland, 686 F2d Nolan v (CA 1982); supra. Marsh, Clark

D plurality do not relied on The cases application against of constructive-dis- militate charge analysis case. on the facts of this Albe- Paper Moody, 405; 95 S 422 US Ct Co v marle (1975), plurality as the 2d 280 2362; 45 L Ed "brought indicates, on behalf a class action employees present of the Albe- and former black alleging Paper Company violations certain marle respect company’s to the . . . with Title VII of seniority system testing.” program its working employees at who remained brought had action was when Albemarle They damages. mitigated clearly had decided their working in the face to continue pay they working were seek- conditions; the back compensation ing between difference was the 591 Levin, J. by Opinion Separate have would they what and had received they They no discrimination. had been if there received could have damages they asking not were for Albemarle. continuing to work mitigated by that in Albemarle no indication There is damages they claiming employees were "former” not does opinion The mitigated. have so could who lost their employees these were suggest that under dis- refused to work had they because jobs can be If conclusion any conditions. criminatory had drawn, who employees were they it is that seeking were they and jobs, retired or switched compensa- between the for the difference damages have should paid they and what they tion were to address the Albemarle thus seems paid.14 been in a different context. back-pay question as a basis plurality case cited only constructive-discharge analysis does for rejecting in the application its preclude not contradict or Sage Realty Corp, 507 F case. EEOC instant (SD NY, 1981), an essentially is Supp principle. same expression alternative There, attendant was serving lobby a woman as a resembling uniform an Ameri- required to wear a portions Her of her buttocks flag. thighs can arms, raised her exposed, were and when she of her above the waist was visible. While body side to re- "subjected the uniform she was wearing a number harassment. She received peated propositions and endured lewd comments sexual . . . .” refused to wear the gestures When she outfit, was sent to convince her refused, and, or- change, when she still she was dered to leave. employees Albemarle also seems to have involved who were discriminatory employment tests or who were laid off hired because of groups discriminatory seniority practices. Neither of these

because mitigate damages continuing employees position was Albemarle, supra Albemarle. at 408. work for Mich Separate Opinion Levin, J. Sage Realty plurality shows concludes to leave there is ordered

that where an discharge precludes "con- has been an actual discharge” analysis. sure, To be structive United States District not Sage Realty did

Court in constructive-discharge analy- explicitly apply might however, did, It the same result as sis. reach application of reached in the construc- have been tive-discharge analysis. The noted that court question "proper employee not whether the victimized

resigned discharged, but whether quitting reasonably rather than suf- in she acted fering Court effects of discrimination.”15 The plaintiff reasonably in had "acted added that refusing uniform was Bicentennial she to wear the issued.” reasonable-person applied

A has been standard Bourque constructive-discharge See in the cases. supra. Sage Realty Clark, in The trier fact and could have

properly there that the condition found unpleasant that a reasonable was "so difficult or person employee’s felt in the shoes would have compelled resign.”

IV denying The circuit court in said: Respon- Although this Court has found upon dent’s sex, code was based dress employment, these as a as well condition perspective. The put proper must be violations instituted, code, does not amount to such dress as discrimination pro- as to purposeful and invidious gainful employment. This hibit the attainment of that has been so type is not the discrimination rampant an individual of historically that denied any opportunities. at 14. Id. n Opinion Levin, J. Separate court did the circuit apparent

It deciding constructive-discharge analysis apply not whether question issue. back-pay invidi- "purposeful code constituted the dress code discrimination,” the dress but whether ous difficult or "so working condition constituted in the em- person that a reasonable unpleasant re- compelled to have felt shoes would ployee’s sign.” for a recon- to the circuit court

I remand would applying back-pay question, sideration constructive-discharge analysis. mode of

Case Details

Case Name: Department of Civil Rights Ex Rel. Cornell v. Edward W Sparrow Hospital Ass'n

Court Name: Michigan Supreme Court

Date Published: Nov 22, 1985

Citation: 377 N.W.2d 755

Docket Number: Docket Nos. 70546, 70578. (Calendar No. 2)

Court Abbreviation: Mich.