Lead Opinion
This аppeal follows the remand of this matter to the circuit court by our Supreme Court
Because the facts related to this matter have been extensively detailed in previous opinions, we reiterate only the salient facts here. See Elezovic v Ford Motor Co,
On appeal, this Court affirmed the trial court’s decisions. With regard to defendant, this Court relied on the then-recent case оf Jager v Nationwide Truck Brokers, Inc,
Plaintiff argues that the trial court erred in concluding that defendant was not functioning as an “agent” of Ford under the CRA when he committed the charged acts of sexual harassment and, thus, could not be held individually liable. We agree.
This Court reviews de novo the ruling on a motion for summary disposition. Walsh v Taylor,
This Cоurt also reviews de novo issues of statutory interpretation. Bloomfield Twp v Oakland Co Clerk,
The CRA is remedial and thus must be “liberally construed to suppress the evil and advance the remedy.” Eide v Kelsey-Hayes Co,
There are two categories of sexual harassment: (1) quid pro quo and (2) hostile work environment. See Chambers v Trettco, Inc,
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(Hi) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment... or creating an intimidating, hostile, or offensive employment. .. environment. [MCL 37.2103(i).]
However, “if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary because holding an employer liable for personal actions is not unfair.” Radtke, supra at 397 (emphasis in original). Thus, when the hostile work environment is created by the actions of the employer, the alleged victim seeking a remedy under the CRA mаy file such a claim against her employer premised on a direct theory of liability. Similarly, this case involves not vicarious liability but the individual liability of the alleged sexual
In this case, defendant argued in the trial court on remand that plaintiffs case had to be summarily dismissed because defendant was never vested with authority to create a sexually hostile work environment; i.e., defendant “was not Ford’s agent for purposes of creating a sexually hostile work environment.” The trial court agreed with defendant, granting defendant’s motion for summary disposition on the ground that defendant was not functioning as an agent at the time he committed the alleged unlawful acts of discrimination. We conclude that both defendant and the trial court misconstrued the applicable legal principles of agency. This unjust and unreasonable result permits an agent to pursue and accomplish his illegal objective by using his position and power, but immunizes him from liability because he was not supposed to do that. In other words, in this case, defendant could not be held personally liable for violating the purported victim’s civil rights because Ford did not tell him to sexually harass her. We do not believe that the Legislature intended this incongruous result.
Article 2 of the CRA defines an “employer” as “a person who has 1 or more employees, and includes an agent of that person.”
[W]hen a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that*9 person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers [v Trettco, Inc,463 Mich 297 , 320;614 NW2d 910 (2000)], that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent. [Elezovic,472 Mich at 420 .]
The Court also specifically held:
Because we find that (1) inclusion of an “agent” within the definition of the word “employer” is not limited to establishing vicarious liability for the agent’s employer, but in fact means agents are considered employers, (2) federal decisions construing Title VII should not be followed because it would lead to a result contrary to the text of our CRA, and (3) the amendment history of the CRA does not preclude a finding of individual liability, we conclude that liability under our CRA applies to an agent who sexually harasses an employee in the workplace. [Id. at 426.]
Again, our Supreme Court reiterated in its conclusion thаt “[b]ecause employers can be held liable under the CRA, and because agents are considered employers, agents can be held liable, as individuals, under the CRA.” Id. at 431.
The clear result of the Supreme Court’s conclusion is that if the purported harasser is an agent of the employing entity, the harasser is treated as if he is the employer for purposes of the CRA. In other words, the harasser may be held directly and individually liable if
Nеxt, we must determine when one is considered an “agent” and, thus, an employer under the CRA. The CRA does not define the term “agent,” so we may turn to a dictionary for guidance on its plain and ordinary meaning. See Koontz, supra. An agent is “a person or business authorized to act on another’s behalf” and “a person or thing that acts or has the power to act.” Random House Webster’s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v Golden (On Rehearing),
Specifically, persons to whom an employing entity delegates supervisory power and authority to act on its behalf are “agents,” as distinguished from coemployees, subordinates, or coworkers who do not have supervisory powers or authority, for purposes of the CRA. If this agent is also the alleged sexual harasser, the agent is considered an employer under the CRA and may be directly and individually liable for this tort against the
Contrary to defendant’s argument, the trial court’s holding, and the dissent in this case, it is not necessary for a plaintiff to establish that a defendant was “functioning as an agent” when he committed the charged specific acts of sexual harassment charged. Almost invariably, the harasser is never acting within the scope of his agency when he breaks the law by sexually harassing a subordinate. As our Supreme Court has noted, “an employer rarely authorizes an agent to break the law or otherwise behave improperly. . . .” Champion, supra at 712 n 7. The issue is not whether the harassing acts were within the scope of the agent’s authority — the plaintiff is not attempting to hold the principal liable for the agent’s acts. The issue is whethеr the harasser was an agent, one vested with supervisory power and authority, at the time the harassing acts were being perpetrated against the victim; if so, the harasser is considered an employer for purposes of the CRA.
We disagree with the dissent’s contention that the common-law agency principles on which the Court relied in Chambers, supra at 311, “in determining when an employer is liable for sexual harassment committed by its employees,” are relevant in this case that does not involve vicarious liability. The dissent’s reliance on other cases involving claims of vicarious liability is not persuasive. The dissent’s claim that we have altered “the elements necessary to establish a prima facie case of hostile work environment sexual harassment by eliminating the respondeat superior requirement” is accurate, but only with respect to claims of direct liability. First, sexual harassment is an intentional tort.
The harassing agent, then, is held to the same standаrd as an employer; employers shall not discriminate against employees. We note Justice Weaver’s concern in her partial dissent with regard to the issue of holding agents, like supervisors, who sexually harass liable for their conduct, while not holding coemployees liable for similar harassing actions. Elezovic,
As our Supreme Court previously noted,
[slexual harassment was targeted by the Civil Rights Act because it is both “pervasive” and “destructive, entailing unacceptable personal, organizational, and societal costs.”
“Sexual harassment should be explicitly defined and prohibited because it is a demeaning, degrading, and coercive activity directed at persons on the basis of their sex, the continuation of which is often contingent on the harasser’s economic control over the person being harassed. It should be outlawed because it violates basic human rights of privacy, freedom, sexual integrity and personal security.” [Radtke, supra at 380-381, quoting House Legislative Analysis, HB 4407, August 15, 1980.]
Agents have been granted supervisory powers that do not, and should not, come without the concomitant responsibility attendant to such powers. They are, for all intents and purposes, the employing entity’s front-line defense against this type of unlawful behavior occurring in the workplace. When an agent instead becomes the sexual harasser, immunity from the reach and teeth of the CRA should not be the reward. The Legislature’s intent is clear — the eradication of sexual harassment as a destructive and hazardous condition in the workplace. Employers, including agents, share the burdens and the benefits of meeting the requirements of the CRA. The effect of the narrow construction posited by defendant in this case, as well as the trial
This conclusion is consistent with prevailing law related to torts committed by agents. “It is a familiar principle that the agents and officers of a corporation are liable for torts which they personally commit, even though in doing so they act for the corporation, and even though the corporation is also liable for the tort.” Warren Tool Co v Stephenson,
Our holding is also consistent with the rule that remedial statutes like the CRA are to be construed liberally “to suppress the evil and advance the remedy.” Eide, supra at 34. The evil here is discrimination, particularly sexual harassment, in the workplace. See Champion, supra at 713. With regard to the imposition of vicarious liability in the case of sexual harassment, our Supreme Court rationalized that “when an em
In summary, under the CRA, an “employer” includes an agent of the employing entity. “Agents” are persons to whom thе employing agency delegates supervisory power and authority over subordinates. An agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim’s employer. Therefore, if plaintiff can establish a prima facie case of hostile work environment sexual harassment against defendant, her supervisor, absent the respondeat superior requirement, she may be found entitled to damages for which defendant is individually liable. Therefore, the trial court’s grant of defendant’s motion for summary disposition on the ground that defendant was not functioning as an agent of Ford when he committed the charged acts of sexual harassment is reversed.
On cross-appeal, defendant argues that the trial court erred in denying his motion for summary disposition of plaintiffs hostile work environment sexual harassment claim because her sexual allegations were insufficient as a matter of law. Again, we disagree.
“[Wjhether a hostile work environment existed shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiffs employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” Id. at 394. Plaintiff presented evidence that, from November 1996 when defendant became her supervisor through approximately the summer of 1999, (1) defendant would frequently look at plaintiff and lick his lips in a sexually suggestive manner, (2) defendant would frequently grab his crotch and ask plaintiff to perform oral sex on him, (3) defendant asked plaintiff if her “boobs” were real and told her that he would like to stick his “dick” between them (but this may have occurred outside the period of limitations), (4) there were three or four instances where defendant was “playing with himself” and, at least once, said, “[L]ick it Lula, lick it,” (5) defendant called plaintiff a “bitch” at least once, (6) defendant grabbed plaintiffs arm as she was leaving a restroom and said, “[C]an we go inside and I’ll wipe,” (7) defendant placed his hand on his groin and asked, “You want some, you want some, you want some?” and (8) defendant went to an unoccu
Objectively examining the totality of the circumstances, a reasonable person could conclude that defendant’s conduct was unreasonable, i.e., it was hostile, intimidating, or offensive. See Radtke, supra at 386-387. Although we recognize that plaintiff was unable to give specific dates and times with regard to many of the instances of claimed sexual harassment, she has established, at least, a genuine issue of material fact regarding whether she was subjected to a hostile work environment as a consequence of defendant’s conduct. See Quinto v Cross & Peters Co,
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Elezovic v Ford Motor Co,
Daniel Bennett will bе referred to as “defendant” in this opinion.
We use gender-specific pronouns in this opinion merely for convenience; obviously, the legal principles involved would be equally applicable were the genders reversed.
“[W]hen a statute specifically defines a given term, that definition alone controls.” Tryc v Michigan Veterans’ Facility,
Dissenting Opinion
(dissenting). I respectfully dissent. Specifically, I believe the majority’s conclusion, holding defendant Daniel E Bennett individually liable under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., as an agent of the Ford Motor Company, is inconsistent and incompatible with the definitional requirements necessary to establish Bennett as an agent and, consequently, as an employer under the CRA. I would, therefore, affirm the trial court’s decision to grant summary dispоsition in favor of Bennett on plaintiff Lula Elezovic’s hostile work environment claim.
This case is once again before this Court, having already generated two published decisions in Elezovic v Ford Motor Co,
This appeal is a necessary extension of the Supreme Court’s analysis of plaintiffs claim of hostile work environment sexual harassment, Elezovic v Ford Motor Co,
“Through the Civil Rights Act, Michigan law recognizes that, in employment, freedom from discrimination because of sex is a civil right. MCL 37.2102 .... Employers are prohibited from violating this right, MCL 37.2202 . . . .” Chambers v Trettco, Inc,
MCL 37.2201(a) defines the term “employer” as “a person who has 1 or more employees, and includes an agent of that person.” The Michigan Supreme Court concluded in Elezovic,
The majority appears to elevate this holding to the imposition of strict liability while ignoring the accepted definition of the term “agent,” which is necessary to
An agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim’s employer. Therefore, if plaintiff can establish a prima facie case of hostile work environment sexual harassment against defendant, her supervisor, absent the respondeat superior requirement, she may be found entitled to damages for which defendant is individually liable. [Ante at 15.]
This effectively ignores both the prior caselaw determining the requirements for establishing liability under an agency relationship and, impliedly, alters the elements necessary to establish a prima facie case of hostile work environment sexual harassment by eliminating the respondeat superior requirement.
In responding to this dissent, the majority relies on an isolated statement from Radtke v Everett,
The question central to the resolution of this case is whether Bennett acted as Ford’s agent when he committed the claimed acts of sexual harassment. The CRA does not specifically define the term “agent” of the employer, see MCL 37.2201, and no published decision of this Court or the Michigan Supreme Court has yet interpreted the contours of this term as it appears in the CRA. The Michigan Supreme Court has explained, however, that the definition of the employer-agent relationship depends on principles of common-law agency: “Because the Civil Rights Act expressly defines ‘employer’ to include agents, we rely on common-law agency principles in determining when an employer is liable for sexual harassment committed by its employees.” Chambers, supra at 311.
Michigan has long recognized the following general common-law principles governing principal-agent relationships:
“An agent is a person having express or implied authority to represent or act on behalf оf another person, who is called his principal.” Bowstead on Agency (4th Ed.), p. 1.
*22 “An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.” 2 C. J. S. p. 1025. [Stephenson v Golden (On Rehearing),279 Mich 710 , 734-735;276 NW 849 (1937).]
“Among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created.” Leo Austrian & Co v Springer,
The parties do not dispute that Bennett was a Ford Motor Company superintendent, and that in this position he was an agent with actual authority, express or implied, to bind Ford regarding certain employment decisions affecting subordinate employees. Alar v Mercy Mem Hosp,
The term “agent” in MCL 37.2201(а) takes into account common-law principles regarding agency relationships, under which Bennett cannot be liable for the alleged acts of sexual harassment because they did not occur in the scope of any authority, express or implied,
Although plaintiff testified that Bennett committed several offensive aсts tending to constitute sexual harassment in the workplace, these acts of discrimination do not have any “usual or necessary connection to accomplishing the purpose[s] of” Bennett’s responsibilities as Ford’s superintendent. Smith, Hinchman & Grylls Assoc, supra at 706. As the Michigan Supreme Court has observed with respect to the potential vicarious liability, under common-law agency principles, of an employer for an employee’s acts allegedly creating a hostile work environment, “[W]e have noted that.. . strict imposition of vicarious liability on an employer is illogical in a pure hostile environment setting because, generally, in such a case, the supervisor acts outside the scope of actual or apparent authority to hire, fire, discipline, or promote.” Chambers, supra at 311 (emphasis added; internal quotations and citation omitted). Notably, Bennett’s acts of sexual harassment also contravened Ford’s antidiscrimination policy, which the parties agree governed their relationship with Ford. Although Bennett’s acts of sexual discrimination violate the CRA, “[w]hen a purported agent is shown to have been acting outside the scope of the law, it is presumed that he was not acting within the scope of his
If interpretation of the term “agent” within MCL 37.2201(a) incorporates common-law agency concepts, then Bennett was not acting within his authority as Ford’s agent when he performed the acts of sexual discrimination allegedly constituting a hostile work environment, and therefore, could not face individual liability under the CRA. Contrary to the majority’s assertion, this determination neither precludes the probability of a defendant facing individual liability under the CRA nor contravenes the overriding intent of the statute. Individual liability is appliсable in cases of quid pro quo harassment “because the quid pro quo harasser, by definition, uses the power of the employer to alter the terms and conditions of employment,” thereby fulfilling the definitional requirements of MCL 37.2201. Chambers, supra at 311.
Because the undisputed facts reflect that Bennett’s acts of sexual harassment occurred outsidе the scope of his authority as a Ford superintendent and violated Ford’s antidiscrimination policy, the trial court properly granted Bennett summary disposition pursuant to MCR 2.116(0(10) with respect to plaintiffs CRA-based claim that his acts of sexual discrimination created a hostile work environment.
In addition, apart from the CRA, an individual agent conceivably could face individual liability in some circumstances for acts of discrimination that satisfy the elements of a tort. Charvat v Gildemeister,