*1 Rights 387 v Civil 1982] rel STARRLA K CORNELL RIGHTS ex OF CIVIL DEPARTMENT ASSOCIATION HOSPITAL A SPARROW EDWARD 1982, 9, Lansing.— 56528, at March 56535. Submitted Nos. Docket 9, 1982. appeal applied September for. Leave to Decided Sparrow Hospital Cornell, employee A. of Edward Starrla K. refusing comply Spar- Association, discharged for required em- newly female dress code row’s instituted employees were re- ployees uniforms”. Male to wear "nurses street clothes. Cornell quired only white lab coat over to wear a Michigan Department complaint of Civil with the filed a finding Rights Rights. issued an order Civil Commission The unlawful discrimination on the dress code constituted that the Sparrow to cease and desist from sex and ordered basis of Cornell, code, enforcing discriminatory dress to reinstate appealed pay. Sparrow compensate her with back and to Court, finding Ingham the commission’s which affirmed Circuit reversed the commission’s order of back discrimination but Bell, Rights Department pay, of Civil J. The Robert Holmes separate appeals. appeals complainant The filed Cornell Held: have been consolidated. refusing to award back 1. trial court did not err in The awarding pay to the entrusts the of back The statute involved its court. The trial court did not abuse discretion of trial discretion. awarding complainant in not 2. The trial court did not err attorney fees.
reasonable Affirmed. that, Mackenzie, J., once unlawful dissented. She would hold found, pay should be denied discrimination has been [1] [2, [3] [4] [5] [7] [8] [9] 15 Am Jur 20 Am Jur 15 Am Jur 22 Am Jur 73 Am Jur 15 Am Jur 16A Am Jur 15 Am Jur 2d, 2d, 2d, 2d, 2d, 2d, References 2d, 2d, Civil Costs 72.§ Civil Damages Statutes Constitutional Law 738. Civil Rights Rights §§ §§ for Points in Headnotes 22-25. § § § 435. 431. 446. § 32. 433. § purposes of the fair not frustrate the for which would reasons act, i.e., practices employment the eradication of discrimination making who suffered and the whole employment. through circuit injury reasoning denying in this case would court’s *2 purposes. circuit court committed an error those The frustrate ground by denying pay on the of fact and of law discrimination, showing purposeful had been no of there basing amounts to an abuse of discre- a decision on such error of the Civil reverse and reinstate the order tion. She would Rights regard Commission in to back Opinion of the Court Employee — Employment Rights — Practices Unfair 1. Civil Pay. — Back Reinstatement subject employee of unfair An who has been position practice may with or be reinstated his her Michigan pay provisions of the State under without (MCL 423.307[h]; Employment MSA Practices Act Fair 17.458[7][h]). Employment Rights Michigan — 2. Civil Act State Fair Practices Pay. — — Back Discrimination Act, Michigan Employment in a case State Fair Practices The discriminatorily discharged, employee not does where an presumption to be that an award of back mandate a special justifying denial in the of circumstances made absence award; awarding pay to entrusts the of back of the statute (MCL seq.; et MSA the discretion the trial court 423.301 seq.). et 17.458[1] Attorney Attorney — 3. Fees. and Client Generally, party own of his or her a must bear the burden expressly attorney authorized of a fee is fees unless allowance by statute or court rule. Michigan Employment — 4. Practices Act Civil State Fair Attorney — Fees. Michigan Employment Practices Act does The State Fair complain- prevailing provide attorney for an award of fees to a ant. "May” Statutory — — — Con- "Shall” Phrases
5. Words and struction. mandatory provi- ordinarily a indicates of the term "shall” Use "may” indicates a of the term while use sion of a statute grants provision discretion. Employment Michigan Rights — Act Fair Practices State 6. Civil Pay. — — Back Discrimination employee who is reinstated should be denied to Back fínding job discrimination on the of unlawful his or her after Michigan employer Fair part of the State violation act, purposes of the Employment Act where the Practices i.e., employment and the of discrimination in the eradication through making injury discrimi- whole of who suffered doing employment, so not be frustrated in nation in would (MCL seq.; seq.). et MSA et 423.301 17.458[1] Employment Rights Michigan — Practices Act State Fair 7. Civil Pay. — Back Employment Act does not Fair Practices State showing purposeful require on faith or bad *3 discharging employee part employer an before of an (MCL seq.; pay may 423.301 et MSA be ordered award of back seq.). et 17.458[1] — 8. Phrases "Invidious Discrimination”. Words and discrimination”, equal protec- of art found in "Invidious a term cases, irrational, arbitrary, to a classiñcation that is tion refers reasonably legitimate purpose. and not related to a Wrongful Discharge — Rights — — Master and 9. Civil Servant Damages. Mitigation of damages mitigate duty to make reasonable efforts to does require employee employer’s unlawful that an surrender to her wrongfully discharging prevent employer to her from demands her. Kelley, General, Louis J.
Frank J. Attorney Lock- A. Caruso, and Michael General, Solicitor Blumenkopf, and Jack Attorney man Assistants General, Rights. of Civil Department for Starr,
H. James Cornell. for Starrla App 387 op Opinion the Court Coey, Foster, Swift, P.C. John L. Collins & (by George Nerat, Collins, M. Brookover and Frank J. Jr.), Sparrow Hospital A. Association. for Edward Kelly, P.J., and T. M.
Before: M. J. Burns Mackenzie, JJ. K.
Per Starrla Cornell and the Michi- Curiam. of Civil as of gan Department appeal right 15, 1981, affirming lower court order February Commission, an order of the Civil code to respondent’s discriminatory found dress be against employees women and which reversed the commission insofar as it awarded back Cornell. employed by respondent hospi-
Cornell was 3, 1, 1972, tal from when she July May discharged refusing comply respon- code, The dress dent’s dress code. which was insti- 1, 1976, required tuted on female May employees including to wear "nurses uniforms” white shoes undergarments. and certain colors of employ- Male ees, however, required were to wear a white lab coat over street clothes. When Cornell refused appearance provisions to conform her to the of the code, discharged. dress she was Cornell filed a complaint Michigan with the Department of Civil Rights. Following investiga- hearings, tion and the commission issued a final 23, 1978, order on May finding that the dress code constituted unlawful discrimination on the basis of sex in violation of the State Fair Em- seq.; MCL 423.301 et Act, ployment Practices MSA seq. *4 17.458(1) et respon- commission ordered dent to cease and from the dis- enforcing desist code, Cornell, criminatory dress to and to reinstate compensate her with back pay. court,
Respondent to appealed the circuit Civil Opinion op the Court 3, 1980, affirmed the dated October opinion in an However, finding of discrimination. commission’s order reversed the commission’s circuit court appeal right. now as Appellants pay. of back court did not hold that the lower we Initially, Pursu- pay. Cornell back refusing err in award 423.307(h); MSA of MCL provisions ant to the 17.458(7)(h), subject who has been the employee be rein- practice may unfair "with or without back position to his or her stated been discriminated clearly Cornell has pay”. out, points respondent’s against. As the dissent stereotyping. on sexual How- practice was based ever, appellants’ position, the Michi- contrary that presumption does not mandate a gan statute is to be made where pay an award of back discharged unless discriminatorily claimant was denial of the award. justify circumstances special support- authority there is some federal Although of the federal ing interpretation such an 2000e-2 et seq.; see Act of USC 405; 95 Paper Co v 422 US S Ct Albemarle Moody, (1975), 2362; applicable provi- 45 L 2d 280 Ed clearly statute make an sions of the cannot re- discretionary. award of back We that legislate presumption write the statute to cir- "special advocate or to create the appellants a denial of back justify cumstances” would awarding The statute entrusts though respon- the trial court’s discretion. Even women, it did against dent’s discriminated policy egre- else so deny employment anything (and trust gious. Although we we sympathize practice), ended the respondent permanently has so invidi- practice we do not believe that have contin- reasonably ous that Cornell could not *5 App 387 392 Opinion the Court at the same respondent while working ued Although in court. we policy the challenging time we do not believe differently, decided have may its discretion in refus- court abused that the trial ing to award back trial court erred in argues
Cornell next fees. awarding attorney her reasonable not the burden of his In must bear general, party "unless allowance of a fee attorney or her own fees or court rule”. by authorized statute expressly Allen, Ins Co v Mutual Automobile State Farm 50 (1973). 821 Cornell 74; NW2d Mich attorney that she is entitled to reasonable argues Elliott-Larsen in with 802 of the fees accordance § 3.548(802). Act, 37.2802; MSA MCL Rights Civil provides: That statute court, rendering judgment an action
"A article, pursuant may this award all or a brought litigation, including reasonable portion of the costs of fees, complainant attorney fees and witness if the award is the action the court determines appropriate.” brought pursu- was not "an action
Cornell’s case Rights ant to” the Civil Act. That Elliott-Larsen act not in effect at the time that Cornell was was it in discharged respondent nor was wrongfully complaint effect at the time that Cornell filed her The statute with Civil Commission. suit under which Cornell initiated this Act, Michigan Practices Employment State Fair seq. seq.; et 17.458(1) et MCL 423.301 MSA Act State Fair Practices Employment fees to a provide attorney does for an award of Therefore, prevailing complainant. because there authorizing is no statutory authority or court rule by Mackenzie, J. case, the trial fees in this attorney an award to award them. declined correctly court Affirmed. (dissenting).
Mackenzie, respectfully I dis- of the resolution agree majority’s I sent. agree cannot concerning attorney fees but issue *6 of the issue concern- resolution majority’s with the ing back under the brought proceeding this
Claimant
Fair
Practices
Employment
State
former
423.301 et
seq.;
MSA
Act,
251;
1955 PA
MCL
17.458(1)
seq.
et
repealed
by
The former act
31, 1977,
March
which also
1976 PA
effective
the Elliott-Larsen
what
is now
enacted
3.548(101)
seq.;
37.2101 et
Act,
MSA
MCL
turns on the
seq.
et
concerning
The issue
act, MCL
the
former
following
provision
17.458(7)(h):
423.307(h); MSA
"If,
on the
upon
preponderance of the evidence
the
whole, the
shall
record considered as a
determine that
engaging
commission
engaged in
respondent
or is
has
employment practice,
unfair
the com-
findings
and
issue
mission shall state its
of fact
shall
respondent an order
and cause to be served on such
requiring
respondent
and
from such
such
to cease
desist
further
employment practice
unfair
affirmative or other action as will effectuate
poses
and to take such
pur-
to,
act,
hiring,
including,
limited
of this
but not
upgrading
employees
or with-
reinstatement
out back
membership, including
manner of
reports
to union
pay,
or admission or restoration
requirement
reports of the
compliance. Upon
of such
the submission
compliance,
may
the commission
issue
declaratory
engage
stating
respondent
order
has ceased
practices.”
in unfair employment
oppor-
greater
Federal courts have had a much
App
119 Mich
concerning discrimina-
questions
to review
tunity
have state courts. Conse-
than
employment
tion
dealing
ques-
with such
precedent
federal
quently,
although
necessarily
highly persuasive,
tions is
in the state
of the differences
controlling
view
See Civil
statutory
schemes.
and federal
368, 375, fn
Corp,
v Chrysler
Comm
(1977).
2000e-5(g) pro-
42 USC
4;
ally unlawful plaint, charged in practice the com- employment engag- respondent from may enjoin court practice, order ing in such unlawful may appropriate, which action as be such affirmative to, include, reinstatement or is not limited may hiring but pay (payable employees, with or without of employer, organiza- employment agency, or labor be, tion, responsible for the unlawful may case as the equitable any other relief as employment practice), or liability appropriate. Back shall the court deems years prior to the date more than two not accrue from a filing Interim earn- charge with the Commission. of a *7 diligence by reasonable ings or amounts earnable with against oper- shall person or discriminated allowable. No pay ate to reduce the back order of the court shall statement of an individual as the as an otherwise require admission or rein- union, or a member of a reinstatement, hiring, promotion or of an individual pay, any him of back employee, payment or the to admission, suspended, or if such individual was refused expelled, or than discrimination on account of sex, or or advancement was refused other suspended discharged for reason or color, race, religion, 2000e- origin in of section or national violation 3(a) of title.” this the state distinguish The to majority attempts the state ground and federal statutes on the discretionary. pay statute makes an award of back Dep’t v however, said of the the same be may Clearly, Co Paper Moody, In Albemarle statute. federal 405, 2362; 45 L 2d 280 421; 95 S Ct Ed 422 US of back (1975), recognized that an award the Court discretionary the federal statute was under discretion must be exercised but held that such of the statute: light purposes of the "* * * vesting Congress’ purpose variety a of 'dis- appel- in the courts was not to limit cretionary’ powers courts, inconsistency or to invite and late review of trial possible 'fashion[ing] rather to make caprice, but possible. complete relief the most [of] that, finding given a of unlawful discrimi- "It follows nation, backpay should be denied for reasons which, applied generally, if would frustrate eradicating statutory purposes of central throughout economy making persons for whole (Foot- through past discrimination.” injuries suffered omitted.) note Albemarle regard and the parties majority creating a in favor of presumption pay; as however, as creat- the case is better characterized determining whether discretion ing standard regard has been abused. A comparison language of the used in the state and federal statutes shows that the case for a Albemarle result such as the Court reached in under the state statute than compelling more indi- under the federal statute. "shall” Ordinarily, mandatory provision "may” cates a while indicates discretion. Law provision grants which Flint, Employees Union v 368; (1975). 235 NW2d 783 The state uses the statute require "shall” the commission mandatory issue an order to take requires respondent *8 of the purpose such action as will effectuate the statute, statute. As was the case with the federal 119 Mich by Mackenzie, were the commission granted powers the various to reach the commission to enable intended rather capricious results but inconsistent view remedy to fashion the commission enable carry it to out facts before particular of the seriously It cannot be statute. of the purposes statute, like the federal the state disputed that purposes the eradica- statute, among includes its and the of discrimination tion suffered injury who making whole of I would employment. through that, unlawful finding given hold therefore discrimination, should be denied which, would not applied generally, if reasons purposes. the statutory frustrate explained his judge the circuit opinion, In his as follows: denial respondent’s found that "Although this court has sex, upon discriminatory based as well code was dress as a condition of must employment, these violations be code, as insti- proper perspective. The dress put tuted, into purposeful and invidious to such does not amount gainful prohibit the attainment of discrimination as to employment. discrimination that type This is not the rampant that denied an individ- historically so has been most, At this employment opportunities. ual of poor respondent has exercised court believes that judgment in the establishment of such a code.” follows ruling his as judge explained
The circuit motion for hearing in the course of a on claimant’s reconsideration: ruling the court has "See the court made its when consider, the court had question it not that
before before it whether or not there had in this been error case, as commission particular whether the board [sic] finding and law in its of fact agency had errored [sic] *9 Rights Dep’t Civil 397 J. Dissent and this court there had not upon ruled that based the record that discrimination; error as it been related to however, the court went findings further the based upon on that record to that based findings show those showing type there was no of invidious and that purposeful ment of Under the I’ve had to prohibit such toas the attain- gainful employment. my opinion was this. Now law, had, you and appreciate I’ve have to time, many since my memory cases this so has back, go the law as I is that where understand it the person is discriminatorily employment denied then the power the to Commission reorder the has cetera, wages et by et cetera with back reinstatement way damages, I ruling upon but made a the based person record here that employment, discriminatory gainful not this was denied purposefully this person disobeyed the believe, I to, code the it extent was dress days two or three she in a appeared row without appropriate quote unquote dress on or on uniform employment, condition of you however view it that such she to foreclosed that that eventually terminated. So right that she had a gainful employment but that action which she took gainful employment, therefore I ordered the Civil factually Commission errored [sic] in determining given that she should damages. be I mean common sense dictates that she could have con- employment tinued filed the she could dressed in her brought lawsuit, and complaint Rights Commission, with the Civil litigated
have this matter while she was required the 'uniform’ as argu- all the while ing that it was an unconstitutional discrimination. She elected to foreclose herself employment from and ac- cordingly that is the issue the court dealt with.”
The circuit judge’s if reasoning, applied gener- ally, would frustrate the statutory purposes of eradication of discrimination and employment the making whole of who suffered such discrimination. The circuit found the judge dress code to be discriminatory finding and that has not been challenged on appeal. Under State Fair Act, Employment Practices claimant 119 Mich by Mackenzie, discrimina- free from right employment
had act, had a respondent Under conditions. tory conditions discriminatory to enforce duty who failed discharging employees by judge majority circuit comply. there is of discrimi- a class apparently believe violate the employment which natory conditions of to justify serious insufficiently act but which are employee. authority No has noncompliance position because none support cited been *10 of discriminatory employ- If the condition exists. serious insufficiently ment at issue here claimant, was it why noncompliance justify in sufficiently justify respondent serious dis- noncompliance? charging claimant for judge of the circuit and Implicit opinion the opinion is the view that a reasonable majority woman) (or, precisely, more reasonable person to wear able forced being should be to endure I have little doubt that of badge inferiority. to a member of greater concern would be accorded or whose religious minority employer a racial the wearing as a required condition reinforcing of a costume offensive racial reli- opinion simply The gious stereotypes. majority distinguishes, analysis, "egre- between without What gious” "non-egregious” and discrimination. statutory poli- such a has basis distinction making eradicating cies of discrimination through past whole injuries for suffered only appar- discrimination eludes this writer. is a value ent basis for such a distinction here that less is serious judgment sexual a value than other forms of discrimination. Such is inconsistent judgment fundamentally statute. judge’s
I at a circuit explain am loss to Rights Dep’t finding that the discrimination involved in the dress code did not amount to purposeful and invi- dious discrimination. Respondent’s laboratory di- rector was asked to explain the differences be- tween the dress codes for men and women and testified as follows:
"Q. right. All any job Is there in the laboratory that any justification would—is there job the lab would indicate the difference? guess "The know, Witness: I really, you depends interpretation on the broad asking what he’s me. Do you my gut response want me to that? to— "Hearing Well, Officer: yes. "Mr. Starr I’ll you give ask [counsel claimant]: your gut response, go and we’ll from there.
"Hearing Officer: Go. Well, know,
"The you Witness: I think that one of the responsibilities that we have in laboratory or any- body in health delivery care and patients is that expect professional a certain appearance. May I finish?
"Q. [by Starr, Mr. continuing]: Yes. And, know, "A. you they seeing are used to physi- they’re essentially male—dressed very much as cians— it’s described here under Male Dress Code. That something they expect. They expect don’t the same *11 thing in nurses or medical technologists. I just— would just my that’s gut response.” first short, In respondent wanted its male medical technologists to have the professional appearance patient a would expect of a doctor. A female medical who, technologist claimant, like in dressed the fashion a patient expect would of a doctor thereby violated the dress code. Female medical technologists required were to dress like nurses. The laboratory director’s testimony shows an in- tent to reinforce sexual stereotypes and therefore shows purposeful discrimination. No other testi- 387 by Mackenzie, between of the differences purpose as the
mony
was offered.
for men and women
the dress codes
Albemarle,
422-423,
the
Moreover,
supra,
could be
a contention
that
rejected
Court
faith”:
showing of "bad
upon a
only
awarded
denying backpay.
for
"This is not a sufficient reason
employer
shown bad
maintain-
an
has
Where
faith —
illegal
highly
or of
practice
he knew to be
ing a
no
legality
can make
claims whatso-
questionable
—he
But, under Title
conscience.
ever on the Chancellor’s
VII,
opens the
simply
of bad faith
the mere absence
depress
it
in the
equity;
does not
the scales
door
employer’s
backpay
upon
If
were awardable
favor.
faith,
remedy
showing
the
would become a
a
of bad
turpitude,
compen-
a
punishment
moral
rather
than
for
the
injuries.
for
This would read
'make
sation
workers’
VII,
right
purpose
out of Title
simply
for worker’s
whole’
employer
did
injury is no less real
because his
in 'bad faith’. Title VII
not concerned
not inflict it
'good
of
employer’s
the
intent
absence
discrimi-
'Congress
directed the thrust of the
natory intent’
consequences
employment practices, not
to the
of
Act
simply
Griggs
Duke Power Co
motivation.’
[401
424, 432;
849;
(1971)].
Respondent (CA Union, 6, 1972), and Kober v 466 F2d 812 (CA Westinghouse Corp, Electric 3, F2d 240 480 1973). cases, In those was denied because the employers’ discriminatory policies were re- quired state No by comparable justifica- statute. for respondent’s tion policy appears discriminatory here.
"Invidious discrimination” is a of art term found equal protection cases. It to a refers classifica- irrational, arbitrary, tion and not reason- legitimate related see United ably purpose; to a Correction, States ex rel of Buonoraba Comm’r (SD City York, New NY, 316 F 564 Supp 1970). applicable meanings The most of "invidi- usage ous” unpleasant are "of an ordinary nature”, objectionable "causing and harm or re- Third sentment”; Webster’s New International see (1968), Dictionary p 1190. I see cannot how discrimination which violates the statute is not "invidious”.
Respondent attempts circuit justify court’s holding reference principles mitiga- Respondent tion. brought pursuant relies on cases v City to the federal statute as Sias Demon- such 1978). stration Agency, 588 F2d 692 (CA 9, I have that, case, no doubt appropriate claimant might be required to make efforts to reasonable secure thus alternative avoid some the economic of her consequences employ- Shiffer v wrongful er’s Compare, example, act. *13 190, 196-200; 224 Ed, Bd of Gibraltar However, to make (1974). duty NW2d damages does not mitigate efforts reasonable employ- to her surrender employee require employer her prevent demands unlawful er’s 22 Am Jur her. See discharging wrongfully from 55: p 2d, Damages, § does not consequences of avoidable "The doctrine wrong- wrongful demand to a yielding include doer of his own consequence legal wrongdoer from to save * * *.” error court’s decision the circuit hold that I would of law fact and error of on clear based I would reverse discretion. abuse of to an amounts the order and reinstate decision court’s the circuit to back regard Rights Commission of the Civil