*1
liability. Appeals The conclusion of the Cotut of that there is no opinion under the act should be affirmed. The Brokers, Jager Inc, v Nationwide Truck should not be overruled. Considering all the evidence and the reasonable inferences that it, questions be drawn from there are factual about which jurors regarding reasonable could differ whether Ford had notice Therefore, of the sexual harassment. the directed verdict in favor regard question of Ford with notice should be reversed. *3 part, part, Affirmed in reversed in and remanded. Rights — — Workplace Supervisors. Civil Sexual Harassment agent employer may individually
An of an be held hable under the Rights sexually harassing employee Act for Civil in the work- (MCL place seq.). et 37.2101 Granzotto, Granzotto), Mark EC. Mark (by Ed- wards & EC. Alice B. Jennings, (by Jennings), for the plaintiff. Eelton,
Kienbaum Opperwall Hardy (by & P.L.C. Baumhart) Hardy Elizabeth and Julia Turner {Patricia Boyle, counsel), J. for the defendants.
Amici . Curiae: & EC. B. Washington, (by George Washington Scheff Massie), Maldonado,
and Miranda K.S. for Justine McClements, Milissa and Pamela Perez. Elezovic v Ford Motor Co
Opinion of the Court Michigan for Conference Na- Hogan Carol Organization tional Women. (1) in whether the C.J. At issue this case TAYLOR, (CRA)1 Act a cause of
Michigan Rights provides Civil employer action an individual of an against (2) employer, Company, whether Ford Motor in plaintiffs was entitled to a directed verdict sexual it. against harassment lawsuit individually that an sued agent may We hold be 37.2202(1) (a)2 Thus, § under of the CRA. we overrule Brokers, Inc, v Nationwide Truck 252 Mich Jager App 464, 485; (2002), it held to the NW2d 503 because contrary,3 and the Court of in Appeals judgment reverse favor of Daniel Bennett Jager. followed hold, courts, with the consistently
We also lower Thus, Ford was entitled to a directed verdict. we affirm the trial court and Court of Appeals judgments favor of Ford.
I. FACTS AND PROCEEDINGS BELOW Plaintiff filed a lawsuit November 1999 pursuant against to the CRA Ford Motor Company and Daniel Bennett, supervisor Ford’s assembly plant at Wixom seq. MCL 37.2101 et 37.2202(l)(a) provides: MCL any following:
An
shall not do
(a)
recruit, discharge,
Fail or refuse to hire or
or otherwise
respect
employment,
discriminate
an individual with
condition,
compensation,
term,
privilege
employment,
or a
race, color,
sex,
religion,
origin, age,
height,
because of
national
weight, or marital status.
*4
3 Jager
activity
supervisor engaging
prohib
had concluded that “a
in
individually
violating
ited
the CRA
not be held
hable
rights.”
civil
Id.
412
sexual harassment based on a hostile work environment are:
(1) employee belonged protected group; to a (2) subjected employee on was to communication or conduct sex; the basis of (3) employee subjected was to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was
substantially
employ-
intended
to or
fact did
interfere with the
employment
intimidating, hostile,
ee’s
or created an
or offensive
environment;
work
(5) respondeat superior. [Emphasis added.]
Trettco, Inc,
297, 311;
See also Chambers v
463 Mich
Before filed a motion in defendants unrelated, limine to exclude from an prior evidence criminal misdemeanor conviction of for inde Bennett pointed cent Defendants that exposure. out incident did not occur on Ford property and involved employees. Plaintiff, however, non-Ford argued that the indecent exposure conviction of was evidence plan a or had scheme Bennett of himself exposing to provided women that it to Ford notice in engaged Bennett sexual inappropriate acts. The trial court that the exposure ruled indecent conviction was with regard inadmissible to Bennett 404(b)(1) under MRE because it was not offered for any purpose other than to show he had to propensity expose himself. The court held it also was inadmissible regard pursuant with to Ford “ 37.2103(g), turn, provides: individual, MCL in ‘Person’ means an agent, association, corporation [or] 404(b)(1) provides: MRE crimes, wrongs, Evidence other or acts is not admissible prove person character of a order to action in show however, conformity may, therewith. It be for admissible other motive, purposes, proof opportunity, intent, prepara- such as scheme, tion, doing act, plan, system knowledge, identity, or material, or absence mistake or accident when the same is wrongs, crimes, contemporaneous whether other or such acts are with, prior subsequent or at to the conduct issue in case. 472MICH408 op
Opinion the Court any probative value would be sub MRE 4039because danger prejudice. stantially outweighed of unfair jury for three weeks. The case was tried before consistently allegations in with the Plaintiff testified complaint against Bennett. it was uncon- her While com- had not filed a formal written tested that she plaint pursuant anti- to Ford’s of sexual harassment policy, plaintiff attempted to establish harassment aware, notice, or on that Ford was otherwise reasons. She claimed sexual harassment several (friends supervisors that she told two first-line of hers *6 command) in the chain of who were under Bennett exposed her, but admitted that Bennett had himself to secrecy. pledged intro- that had them to She also she psychologist had written to the duced two letters her indicating plant physician, one that in his view Wixom plaintiff descending “[d]ue mental to into illness perceived she from Mr. Bennett” and a harassment stating plaintiff that continued “to feel uncom- second Dan These letters were offered fortable with Bennett.” psychologist a third to the with letter from same plant manager regarding complaints against a Wixom it has different coworker which was said “there past year going on for the and a half been harassment plant job.” at her Also introduced was testi- Wixom mony employee from an to a Ford Labor Relations Department representative effect that the em- to the ployee remain medical leave until someone would on something plaintiff did about the situation between provides: MRE 403 relevant, Although probative be excluded if its evidence substantially outweighed by danger preju- value is of unfair issues, jury, by dice, misleading or or consid- confusion time, delay, presentation erations of undue waste of needless cumulative evidence. Elezovic v Ford Motor Co Opinion the Court Finally, Bennett. reference was to a letter made (her son-in-law) from plaintiffs to the attorney Ford Labor Relations Department which he asserted he legal “to might take action insure that our client is not to [plaintiff] subjected in a hostile working environment.”
At of plaintiffs proofs, the close defendants filed a joint verdict, for a plaintiff motion directed that arguing had not facie presented prima case them.10 emphasized Ford that had not plaintiff established it had notice of the sexual alleged by harassment and, thus, Bennett it not could be held liable for any improper acts him. joint
The trial court took the motion under advise- ment, with continuing present defendants to their cases jury. Bennett testified that he had not sexually plaintiff harassed the and that her were claims false. Ford presented evidence showing only time ever had filed a complaint sexual harassment committeeman, was in involving UAW and that none of several grievances and complaints plaintiff filed against Bennett had mentioned sexual harass- Rather, ment. with regard Bennett, complaints her having concerned changed her shift days from to after- disputes noons and regarding overtime. also She filed a *7 complaint alleging that a female had physi- coworker cally threatened her.
Upon the close of proofs, defendants’ the trial court granted directed verdicts to the The defendants. trial court held that failed prima had to establish a facie case of sexual harassment with to regard either and, in particular, defendant found that Ford could not 10 provides: may party MCR “A 2.515 move for a directed verdict at the by opponent.” close of the offered evidence Mich 408 472 416 Opinion the of Court alleged it had no notice of Bennett’s because be liable harassment. a prima that had
Plaintiff, asserting
she
established
Ford,
the
appealed
to
facie
Bennett
case
however,
Court,
affirmed the
That
Appeals.
Court of
In
opinion.11
in
published
of the trial court
a
orders
in
relied on the
Bennett,
majority
Elezovic
ruling for
at
that “a
holding
supra
in Jager,
then-recent
by
the CRA
engaging
activity prohibited
supervisor
violating
a
individually
not be held
liable
The
Court had reached its
rights.”
Jager
civil
by
largely
holdings
on federal court
relying
conclusion
rights act,
under Title
of the federal civil
that
VII
CRA,
there is no individual
analogue
federal
our
majority,
it
that the
liability.12
obligatory
was
While
7.215(J)(1),
to MCR
Jager pursuant
Elezovic follow
that,
at the same time
but for that
majority indicated
rule,
opposite
it
have reached the
result.13
court
would
wrongly
majority’s
Jager
It was the
view that
it
not consistent with the
simply
decided
because was
CRA,
of our
which it concluded made
language
actual
(2003).
Co,
187;
App
v
Motor
259 Mich
With directed verdict for Court claim Appeals rejected plaintiffs -of that her regarding evidence notice had been to sufficient enable her to reach the Court jury. plaintiffs The held that report of Bennett’s conduct to her did supervisors not actual constitute notice to Ford her request because of at the same time that this information conveyed not be supervisor to their or appropriate other El persons. Co, 194; ezovic v Ford Motor Mich App 187, (2003). NW2d 776 As for the letters that had been sent Ford, to the Court of Appeals concluded these also because, did not provide notice none importantly, them to referred sexual conduct. The Court held that fact, when this viewed in the context previous harassment complaints had not sexual in been nature, but were explicitly concerning nonsexual Ben (with nett exception and others of the 1991 com plaint against UAW committeeman that did not as rely part case), on of her meant Ford would not reasonably have been put on notice. Id. at Finally, 195. the Court also affirmed trial court’s decision to exclude evidence regarding expo Bennett’s indecent sure conviction. It was the Court’s conclusion that plaintiff failed to establish that evidence offered for proper purpose because Bennett’s act of indecent 14 making point, majority In this noted that Chambers held that “ language certain in the CRA ‘allows this Court to whether determine employer, himself, the sexual harasser’s addition thé sexual harasser responsible Chambers, supra is to be held for the misconduct.’ at 320 Elezovic, (emphasis original).” supra at 201. ' Mich 408 Opinion of the Court sufficiently was not workplace exposure outside in the employee work- sexually harassing similar scheme, system. plan, a common to establish place *9 the trial concluded that The Court further Id. at 206. discretion, concerning defen- its court had not abused value of this Ford, probative the holding dant substantially outweighed by evidence would have been Id. at 207-208. prejudice.15 of unfair danger Court, and in this appeal for leave to applied Plaintiff parties and directed the appeal leave to granted we a supervisor whether among include the issues briefed Michigan Civil activity prohibited by engaging Act, et be held individu- Rights seq., MCL 37.2101 ally violating plaintiffs rights. Mich civil 470 liable for (2004). 892 REVIEW
II. STANDARDS OF
whether our CRA
question
de novo the
We review
of action
an individual
authorizes a cause
ques
because it is a
sexual harassment
workplace
Ins Co
Re
(After
Morales v Auto-Owners
tion of law.
(2003). In
487, 490;
849
mand), 469 Mich
672 NW2d
clear,
statute,
language
if its
we con
reviewing the
intended the
Legislature
must have
clude
is enforced as
meaning expressed,
the statute
Ass’n,
22, 27;
v Auto Club Ins
448 Mich
Turner
written.
(1995).
We also verdict, viewing for a directed evidence ing motion in the most favorable legitimate light and all inferences v Blue Cross & Blue nonmoving party. to the Sniecinski 124, 131; 469 Mich 666 NW2d Michigan, Shield of is, probative given marginally could be undue or evidence That weight by jury. preemptive Elezovic v Co Ford Motor Opinion of the Court (2003); Univ, 222 Mich Meagher Wayne App 700, v State (1997). 707-708; 565 NW2d admit or Finally, decision whether exclude evidence for an is reviewed abuse of discretion. v People (1999). Lukity, 488; 460 Mich 596 NW2d III. INDIVIDUAL AGENT LIABILITY THE CRA UNDER The prohibits CRA from discriminating sex, on account of which includes sexual harassment. (“Discrimination 37.2103(i) 37.2202(l)(a); MCL MCL harassment.”). because of sex includes sexual previ- As ously forth, set the statute defines an “em- expressly ployer” as a which is defined under “person,” MCL 37.2103(g) corporation, to include a and also states that an “employer” “agent includes an of that person.” MCL 37.2201(a).16 statutory language
This uncontroversially means *10 that Ford Company Motor is an under “employer” CRA. What is contested is an agent whether of the corporation subject is also to liability. individual
Bennett and Ford argued have that the statutory definition of an “employer,” “agent which includes of that person,” should not be read as providing (1) liability because inclusion “agent” of the term in the definition statutory of operates “employer” solely to (2) confer liability on employer, vicarious federal courts of have all appeals held that Title VII—the analo- gous federal sexual discrimination statute with its simi- “employer” lar definition of not allow individual —does (3) liability, and history amendment of our CRA suggests a different part Legisla- intention on the of the ture. legislatively binding provided Tryc These on definitions are this Court. (1996). Michigan Facility, 129, 136;
v 451 Mich Veterans’ NW2d 642 472 MICH Opinion the Court that this arguments, the first of these
Regarding the class of expand not be read to should statute defendants as- agents, to include defendants potential Chambers, 310, supports at this narrow- supra that sert it that the inclusion of because held ing conclusion in MCL “employer” the definition of an “agent” within 37.2201(a) liability on the served to confer vicarious analysis. While disagree We with this agent’s employer. language this establishes vicarious Chambers held that did not limit it to that function. liability, our discussion that, says “employer” a statute The reason is when employees, 1 or more person means “a who has must, it if the words agent person,” includes an that sensibly, Legislature mean that the going are to be read to the agent intended to make the tantamount em- unmistakably subject that the is also ployer so added.) In- employer. (Emphasis with the along suit Chambers, deed, said in at supra when we categorizing given pattern of misconduct allows the sexual Court “to determine whether harasser’s in to the sexual harasser employer, himself, addition misconduct,” held for the we believe responsible to be (Emphasis original.) Accordingly, we said as much. reject argument including “agent” we within only provide “employer” definition serves liability agent’s employer vicarious we conclude that it also serves to create individual employer’s agent.17 for an dissent offer “no clear reason for Justice Weaver states her that we ‘agent rejecting phrase employer’ the conclusion that the denotes But, respondeat superior liability.” as our Post at 438. discussion above clear, Rather, reject this hold that the makes we do not conclusion. we Legislature’s “agent employer” respon use of the words denotes *11 liability may superior liability deat and also that individual exist under the statute. Cavanagh argues
Justice in his dissent that Elezovic v Ford Motor Co Opinion of the Court respect With to defendants’ argument, second which effectively is that we should piggyback on the rationale VII,18 federal courts have used with Title defendants refer us to that, numerous federal decisions on the basis of the and “policy” “object” of Title VII rather than what the actually says, statute have read Title VII to preclude liability.19 individual This Court has been clear the policy behind a statute cannot prevail over employer person
the statute means that an is a who has one or employees agent more and this employer. includes an This employer purview means that an still falls within the of the statute “employees” agents, even if family its are mere such as members helping who are employer with the business. To determine liabil- ity, agents employees. are considered [Post 432.] at We Cavanagh misreading believe Justice the statute. The statute says agent an can employee. be an The in reference —not “agent” “employer.” statute to modifies expand scope It does not “employee.” parallel This is evident from the verbs: “Employer” person means a employees, who has 1 or more 37.2201(a) person.
includes an [MCL of that (emphasis added).] “employer” Title person VII defines engaged to mean “a in an industry affecting employees commerce who has fifteen or more ... and any agent 2000e(b). added.) person----”42 such a (Emphasis USC Thus, “employer” while the definition of under Title VII is similar to that CRA, pointed Chambers, of our law, as out in unlike the federal the CRA expressly establishes a cause of action for sexual harassment and employer liability agency Chambers, based on principles. traditional supra 311, 315-316, at 326. Wathen, 405, example, supra For in at the Sixth Circuit Court of Appeals liability determined there was no individual under Title VII of rights act, though the federal reading civil even language contained in Title VII would lead to the conclusion that an could, fact, be held hable Circuit, for acts of discrimination. The Sixth however, citing “object” “policy” behind Title VII instead of its language, ultimately rendered a decision in language. conflict with that Similarly, (CA Corp, Tomka 2, 1995), v Seiler 66 F3d Second Circuit ruled individual was not available under Title VII though grudgingly narrow, even reading what it referred to as “a literal *12 Mich 408 422 472 Opinion Court In says. prevail. The text must actually what the text Chambers, “policy” an invitation to follow fact, in when CRA, we presented regard “text” was with over said: many of the guided interpretation are times in our
We interpretations Michigan Rights Act federal court Civil However, gen- counterpart statute. we have of its federal erally to make it clear that we are not been careful Instead, compelled interpretations. those federal to follow Michigan obligation interpreting law is primary our when always give effect to the intent of the “to ascertain Legislature,... gathered [W]e ‘as from the act itself.’ ”... interpretations doing if so cannot defer to federal would nullify portion Legislature’s enactment. [Cham- a of the (citations omitted).] bers, supra at 313-314 Chambers, again decline to follow the As we interpreta- tendered over “text” federal court “policy” Title for the same reason: it would be tions of VII contrary very wording to the of our CRA. Because MCL 37.2201(a) an an provides “employer” includes “agent” employer, agent can be held individu- 20 ally liable under the CRA. employer’s agent imply in Title VII “does that an clause” statutory liability....” employer purposes [Title VII] a for As in Wathen, the Second Circuit went on to read Title VII not on the basis of language, on the basis of what it viewed as the real its but “intentions legislators.” holding may in her Justice Weaver states dissent that our be victory” may plaintiffs “shallow because sexual harassers not be “agents” they acting scope authority. if outside of their were We agree disagree any aspect premise proposition, neither nor with or of this here, and do not address it issue has not been raised or because this argued by parties. Further, holding by whether or not some later this victory” sharp prove Court to be a “shallow is in contrast with the defeat” that in sexual harassment cases “certain individuals would suffer under Justice Weaver’s “common sense” inter pretation of the statute. Post at 439. Justice Weaver further claims that supervisor, coemployee,may opinion under our but not a face individual v Co Elezovic Ford Motor Opinion of the Court
Moreover, Michigan federal courts have several that, CRA, anticipated holding our under our if agent liability even it did not exist under Title exists Co, can in Hall v Farm Ins F VII. This be seen State (ED Mich, 1998), 2d in which the United Supp for the District of Michi- States District Court Eastern gan explained: Rights any [Elliot-Larsen Act]
ELCRA Civil covers Comp. employees.” “who has more Mich. 37.2201(a). Thus, undeniably § Laws *13 ELCRA envisions placing liability individuals, on such as two-member busi- person principal one ness entities where is the and the Moreover, person employee. other as the serves ELCRA’s remedy provision “person[s] alleging a authorizes violation bring injunctive of this a civil appropriate [to] act action for both,” damages, being relief or or “damages” with awarded “injury act, for an or loss caused each violation of this including attorney’s Comp. reasonable fees.” Mich. Laws (3). 37.2801(1), §§ These further ELCRA remedies distin- guish damages it from Title VII because can be obtained employers. from as well as individuals Similarly, judge another of the same federal district court also questioned Jager Court’s conclusion that individual did liability Michigan’s CRA, not exist under stating that language agent employer,” could, “includes of that construction, statutory
under principles of strict well be Otherwise, read as extending to individuals. this phrase merely surplusage, nothing as it adds to the scope “employer,” of itself definitional which defines the “employer” person. Wayne term as a v [United States Co liability. opinion. proposition This also is a that has no basis our All we is, agent employer, have said if the individual was an liability may can drawn under the exist. Whether distinction be statute supervisory nonsupervisory employees again between has not been argued raised case. in this 472 MICH Opinion the Court (ED Mich, Dist, 497, nil College Supp 242 F 2d
Comm 2003).][21] have the federal courts conclude, then, that while
We will, that not they does Title VII as to construe power language if the them, especially to follow compel us purported at with being loggerheads construed is policy. argument regarding third respect to the
With CRA, that defendants assert history of our amendment liability. They ad- finding of individual precludes it the CRA was first that when by positing vance this mean “a “employer” it defined enacted in and includes an employees, 4 or more who has person meant, as PA 453. This agent person.” of that individu- it, that an could not be defendants read did at all unless apply because the CRA not ally liable predicate employees. there at least four With were understood, they under the 1976 act agent liability of no statute, reflects the to the amended which then turn protection amendment22 that broadened only with by sweeping aegis companies under its CRA the definition of unchanged one but left employee, “agent,” argue to include an even “employer” nonliability agents cannot be though theory the old *14 21 (ED Mich, Co, Supp 950, Energy n DTE 285 F 2d 964 16 Millner v Wayne 2003), expressed qualms as those indicated in Comm also the same College. that, Systems Corp, 266 F also note in Poches v Electronic Data We (ED Mich, 2003), Rymal Baergen, App Supp 623, 2d v 262 Mich 627 Jager 274, 296-297; (2004), distinguished 241 the courts NW2d go to forward because the allowed retaliation claims individuals 37.2701, CRA, provision than the MCL is broader antiretaliation CRA, provision MCL antidiscrimination 37.2202. say 1980, Legislature “em the statute to that an In amended person employees, ployer” 1 more and includes an means “a who has agent person.” PA of that 202. y Ford Elezovic Motor Co Opinion of the Court sustained under the new language, we should read it in anyway. we Legislature This cannot do. The held to what it It said. is not for us to rework the statute. Our duty is to the statute interpret as written. The binding nature of responsibility this was reiterated by this Court in recently Comm, v Lansing Mayor Pub Service 154, 161; 470 Mich (2004), NW2d 840 which we said: task, Constitution,
Our
under the
important,
is the
but
yet limited, duty
interpret
to read and
Legislature
what the
actually
has
many
made the law. We have observed
times in
the past
Legislature
that our
policy
is free to make
choices
that, especially
matters,
in controversial
some observers
inevitably
will
dispute
think unwise. This
over the wisdom
law, however,
of a
give
cannot
warrant
to a court
to
people’s Legislature.
overrule the
Thus, what this comes down to is that perhaps the
Legislature’s policy choice
debated,
can be
but
judiciary is not
the constitutional venue for such a
Legislature
debate. The
is the proper venue. It is to that
body that the defendants should
argument.
make their
Accordingly,
reject
we
the claim that
the amendment
history
our CRA precludes a finding of individual
liability where the actual wording of the statute as
currently written unambiguously provides that an
agent may be individually liable.23
23 Notwithstanding
Legislature
Justice Weaver’s view that
could
“straightforward
have acted in a
communicating
more
manner” in
its
intentions, we cannot think of
part
a more clear-cut statement on its
concerning liability under the statute.
prefer
While Justice Weaver would
rely
sense,”
ón
post
her own
interpreting
“common
at
“employer”
coverage
to exclude from
employees,
majority
prefer
rely
itself,
would
on the statute
which
“[e]m
states that
ployer...
person.”
includes an
of that
It is a caricature of the
(which
concept
“judicial
concept
restraint”
she invokes on her own
439)
behalf, post at
for Justice Weaver
to assert that her “common sense”
language
should he allowed to override the
of the statute.
*15
Because we not “employer” the definition of the word is within liability agent’s for the establishing limited to vicarious agents are considered employer, but fact means (2) construing federal decisions Title employers, VII lead should not be followed because it would to result (3) CRA, the text of our the amendment contrary to not of history preclude finding CRA does our liability, we conclude that under applies sexually CRA to an who harasses an in the employee workplace.
IV PLAINTIFF’S CLAIM AGAINST FORD employer It is the case in this area of the law that responsibility for sexual harassment can be established if only employer had reasonable notice of the harass- appropriate ment and failed to take corrective action. Chambers, Chambers, at 312. In we held that supra also if, adequate objec- “notice of sexual harassment is standard, totality tive of the circumstances were such that a employer reasonable would have been aware of a substantial probability sexual harassment was oc- Thus, Id. at actual curring.” employer 319. notice to the rather, required; is not employer test is whether the Radtke, knew or should have known of the harassment. n supra apparent, at 396 46.24As is the issue whether reasonably known, Ford knew or should have under the circumstances, totality of the of Bennett’s harassment of plaintiff. agrees majority employer Justice Weaver with the that an must have But, notice before it can be hable. Post at 441. arguably later she undercuts Bank, Vinson, Savings by citing 57, 72; Meritor FSB v 477 US this 106 S (a (1986) 2399; VII), construing L Ct Ed 2d 49 case Title for the proposition employer necessarily that the “absence of notice to an not does Meritor, liability.” language from insulate that As for this from interpreted “employers
we note that it has been to mean that are hable for y Elezovic Ford Motor Co Opinion Court showing made a facie prima
Plaintiff claims she supervisors told of Ben- notice when she two low-level *16 put and that Ford also on notice exposure, nett’s sent to Ford. psychologist the letters her son-in-law and the Court of agree Appeals with the trial court We insufficient to allow plaintiffs that notice evidence was jury. the the case to be submitted to plaintiffs telling first consider whether two low- We level in confidence that Bennett had supervisors exposed to her Ford. that himself constituted notice to We find it that, if employee did not. It must be recalled is in sexually workplace, employee’s harassed it is that words, choice to In pursue whether matter. other notify victim of harassment whether to right” “owns the company process investigation. and start the Until the employee appropriate steps pro takes to start the cess, it is not started. As stated in v Harris Perry (CA 1997): Chernin, Inc, 1010, 7, 126 F3d [T]he sexual not law harassment is self- enforcing. plaintiff duty A has no under the law to com- harassment, plain discriminatory about employer but the in a case like this one will not be liable if it had no reason to know about it.
Thus, when an in employee requests confidentiality discussing harassment, workplace request and the for honored, is a confidentiality request properly such is of the right give considered waiver to notice.25 failing remedy prevent to or a hostile or offensive work environment of knew, management-level employees in which the exercise reasonable Equal Employment Opportunity care should have known.” Comm v Haci added). Hotel, 1504, 1515-1516 (CA9,1989) Thus, (emphasis enda 881 F2d language from Meritor should be to mean understood actual notice is Michigan required. not This is consistent with law because the test whether knew or should have known of the harassment. Radtke, supra at 396 n 46. course, employer, discipline supervisor An remains free to for failing report complaint proper persons to a sexual harassment to the as 472 MICH408 Opinion of the Court
Thus,
telling
super-
two
we conclude
instance of Bennett’s
visors
confidence about one
notice,
conduct does not constitute
notwith-
improper
to
standing
policy
required
supervisors
Ford’s
personnel.26
the information to human resources
report
holding
Our
is consistent with other courts that have
example
Wentz,
considered this issue. For
in Hooker v
(SD
753,
Va, 1999),
Supp
F
2d
757-758 W
the court held
the employer
there was no notice to
where the
in her
supervisor
confided
immediate
about sexual
And,
report
advances but asked that he not
it to others.
(CA
Raton,
Faragher
1997),
v Boca
Plaintiff in the alternative even if her insufficient, evidence of notice to Ford was it would have been sufficient if the trial court had not errone- ously granted the motion limine that precluded introduction of knowledge evidence of Ford’s of Ben- exposure nett’s indecent conviction. This conviction had expunged been before the trial in matter. this We conclude that the ruling trial court’s not an was abuse of discretion. 780.623(5)
First, we note that MCL provides: (2) Except provided [pertaining as in subsection certain purposes], person, law enforcement other than applicant, who knows or should have known that a conviction was set aside under this section who di- vulges, uses, publishes concerning or information a convic- tion set aside guilty under this section is of a misdemeanor punishable by imprisonment days for not more than 90 $500.00, a fine of not more than or both. statute,
Pursuant
to this
evidence of Bennett’s ex-
punged misdemeanor conviction
not
admissible.
might
Justice Weaver’s dissent advocates what
be characterized as a
theory
notice,
i.e.,
employee
problems
“near miss”
if a male
had
at
employees
harassing
work with female
or was accused
someone
*18
way,
employee
nonsexual
this somehow constitutes notice
an
that such
perils
approach
apparent
was a sexual harasser. The
of such an
are
and
adopt
we decline to
it.
29
proper
prima
showing
A directed verdict is
where no
facie
of
(1994).
Pachtman,
216, 222-223;
is made. Locke v
446 Mich
Opinion of the Court clearly this While statute made evidence of the convic- inadmissible, tion question leaves the whether conviction, facts that led to the which occurred while Bennett was not at work involved individu- Ford, als with no connection to were admissible to establish that Ford knew or should have known that Bennett sexually was The trial harassing plaintiff. court ruled that the evidence was inadmissible because prejudice Ford would substantially outweigh any probative value the might evidence have. The trial Indeed, court did not abuse its discretion.30 we question how knowledge Ford’s improper Bennett’s off-site involving behavior nonemployees could constitute notice to Ford that plaintiffs work environment sexually hostile. important; Context is improper behavior of a given is not type predictor an inevitable types other improper where, here, behavior especially they as occur at entirely different locales and under different circum- (D Tomson v 530, stances. 705 F Stephan, Supp Kan, 1989).
And, Chambers, as we stated in supra 315-316, at can vicariously be liable a hostile work environment only if it “failed to take prompt adequate remedial action upon reasonable notice of the creation of a hostile [work] environment....” added.) (Emphasis Here, the trial court and the Court of Appeals held properly notice evi- dence was insufficient to allow the case to be submit- jury. ted to the 30 See, (D 1989) e.g., Stephan, Supp 530, Kan, Tomson v F (excluding evidence that the defendant made sexual advances outside the
employment setting because the advances were not made toward an (MD employee); Longmire Univ, Ala, v Alabama State 151 FRD 1992) (the place defendant’s “activities outside the work are irrelevant” environment). determining the existence of a hostile work *19 431 Ford Motor Co Elezovic v Opinion by Cavanagh, J.
v CONCLUSION CRA, under held liable can be employers Because agents employers, agents are considered and because Thus, individuals, the CRA. liable, under as can be held and Appeals of the Court the invitation accept we that opinion Appeals of the Court of part that reverse held may not be holding agents in that Jager relied on CRA. under our individually liable that Appeals of the Court judgment affirm the We the trial and that to a directed verdict Ford entitled was not motion in limine was ruling on the pretrial court’s an abuse of discretion. in and remanded to part, affirmed part,
Reversed in regarding proceedings for further circuit court opinion. with this Bennett and consistent Markman, Young, JJ., with concurred Corrigan, Taylor, C.J.
CAVANAGH, dissenting (concurring part J. (CRA), Act MCL Rights I the Civil believe part). for individual provide et does not seq., 37.2101 therefore, respect- I employer; of an I also majority from the on this issue. fully dissent on the of notice. As majority issue dissent from dissent, I in her by partial Justice WEAVER discussed evidence of provided believe that likewise (Ford) Company Ford Motor notice to defendant by jury. decided the issue to be sufficient to allow major- by the result reached I concur with Finally, defen- grant decision to the trial court’s ity regarding of Ford’s to evidence preclude motion in limine dants’ expunged harasser’s knowledge alleged of the sexual conviction. exposure indecent Mich 408 Opinion Cavanagh, J. THE CIVIL RIGHTS ACT I. LIABILITYUNDER INDIVIDUAL proper interpretation This issue involves statutory interpretation is primary goal CRA. The In re MCI Legislature. effect to the intent of the give 396, 411; Mich Complaint, Telecom NW2d (1999). language step The first is review statutory language unambiguous, If the is statute. meaning to have intended the Legislature presumed *20 judicial in the statute and construction is not expressed permissible. “ 37.2201(a) following: ‘Employer’ states the
MCL employees, who has 1 or more and person means of that to the agent person.” According includes an statute, “that to the person” employer.1 Simply, refers the means that an is a who has employer person statute or more an of the employees agent one this includes employer. employer This means an still falls within the if are purview “employees” statute even its agents, family helping mere such as members who are employer liability, with the business. To determine Thus, agents are considered an employees. employer escape liability alleged cannot because the sexual ha- instead, officially employee, rasser is not but is for example, family “helping member who is out” with the If the an employee business. sexual harasser is or is liable if it had employer, employer Everett, notice and failed to act v reasonably. See Radtke (1993). 368, 396; 442 Mich NW2d 37.2103(g) following: MCL states individual, agent, association, corporation, “Person” means an joint apprenticeship committee, joint company, organi- stock labor zation, legal representative, company, partnership, mutual re- ceiver, trust, unincorporated organization, bankruptcy, trustee in political agency or an the state or a subdivision of the state state, any entity. legal other or commercial Ford Motor Co Elezovic v Opinion by Cavanagh, J. unambiguous language selected According to provides text of the statute Legislature, plain employees for the' acts of its liability. for individual provide it does not agents, but cannot taken into Because considerations be policy case, position I offer no on whether it account in this in sexual harassment cases plaintiffs would be best for individually sexual harasser alleged to also hold an solely That decision is for the liable under the CRA. Legislature to determine. TO FORD OF SEXUAL HARASSMENT
II. NOTICE II of part partial I concur with Justice Weaver’s dissent. I believe Justice WEAVERoutlines sufficient that Ford had support plaintiffs evidence to claim allegations notice of of sexual harassment. plaintiffs plaintiff requested confidentiality from two su- While told about the ha- pervisors alleged whom she sexual rassment, supervisor it is critical to note that plaintiffs allegations labor relations had notice of sexual harassment from one of coworkers In alleged and from the sexual harasser addi- himself. tion to the other facts presented by plaintiff, because *21 supervisor of labor relations had notice of allegations harassment, of sexual I believe that this by jury. issue should be determined III. EVIDENCE OF THE ALLEGED SEXUAL EXCLUDING HARASSER’S EXPUNGED CONVICTION FOR INDECENT EXPOSURE by majority I concur with the result reached trial court did not its discretion it abuse when motion in limine to evi- granted preclude defendants’ knowledge alleged dence of Ford’s sexual harass- exposure indecent conviction. I also con- expunged er’s that, case, majority’s cur with the conclusion this Opinion 472 MICH 408 by Weaver, J. that led facts conviction were not sufficient to put Ford on notice of sexual I However, harassment. note that there certainly may be instances where the facts of conviction, even one that occurs off-site and involves nonemployees, may lead to notice because of the context in which the incident totality occurred and the circumstances.
IV CONCLUSION Because the CRA does not provide for individual liability against agent an of an employer, I respectfully from the majority dissent on this issue. I also dissent majority from the on and, the issue of notice accordingly, I concur with Justice WEAVER because I believe that plaintiff provided evidence of notice to Ford that was sufficient to allow the issue to by be decided a jury. Finally, I concur with the result reached the majority regarding the trial court’s decision to grant defendants’ motion in preclude limine to evidence of Ford’s knowl- edge of the alleged sexual expunged harasser’s indecent exposure conviction. J., concurred J. Cavanagh, with
Kelly, J. (concurring part and dissenting in WEAVER, I part). concur in majority’s conclusions that trial court’s on ruling the defendants’ motion in limine not an abuse of discretion and that its decision to exclude the evidence of defendant Daniel Bennett’s expunged conviction should therefore be affirmed. IBut separately write I because respectfully dissent both from the majority’s conclusion that Michigan’s Civil Rights (CRA), Act MCL 37.2101 et seq., provides of an from its conclusion that defendant Ford Motor Com- *22 v Ford Motor Co Elezovic Opinion by Weaver, J. plaintiff entitled to a directed verdict because pany was establish that Ford had notice of sexual failed to harassment. in-
Instead,
Legislature
I would conclude that
in the definition of “em-
“agent”
cluded the word
37.2201(a)
supe-
to denote
ployer”
respondeat
in MCL
liability.
not
I
liability,
Accordingly,
rior
Brokers,
v
Nationwide Truck
Jager
would not overrule
Inc,
252 Mich
464;
(2002),
I
i provides, pertinent part, The CRA that “[a]n shall not do of any following”: (a) recruit, discharge, Fail or refuse to hire or or against respect discriminate an otherwise individual with term, condition, employment, compensation, or a or color, privilege employment, religion, race, because of sex, origin, age, height, weight, national or marital status. (b) Limit, classify segregate, employee applicant or or an way employment deprives deprive in a or tends to employee applicant employment opportunity, or of an adversely employee or otherwise affects the status or race, color, religion, origin, applicant because of national sex, age, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate term, person respect on the basis of sex with to a 472 Mich
Opinion by J. Weaver, condition, privilege employment, including, but not *23 to, plan system. limited a benefit or [MCL 37.2202.] The CRA defines discrimination because of sex to 37.2103(i). include sexual harassment. MCL It defines “sexual harassment” to mean “unwelcome sexual ad- vances, requests favors, sexual and other verbal or physical conduct or communication of a sexual nature following under the conditions”: (i) Submission to the conduct or communication is made a term or explicitly condition either implicitly or to obtain employment, public public services, accommodations or education, housing. or
(ii)
rejection
Submission to or
of the conduct or commu-
by
nication
an individual is
used as
factor in decisions
affecting the
employment, public
individual’s
accommoda-
services,
public
education,
tions or
housing.
or
(iii) The conduct or communication has
purpose
or
substantially
effect of
interfering with an individual’s
employment, public
public services,
accommodations or
education,
housing,
creating
or
or
an intimidating, hos-
tile, or
employment,
offensive
public accommodations,
services,
public
educational,
housing
environment.
37.2103Ü).]
[MCL
The term “employer” is defined as “a person who has 1
or more employees, and includes an agent of that
37.2201(a).
person.” MCL
The majority concludes that because the definition
of the word “employer” includes an “agent” of the
employer,
“an
can be held individually liable
under the CRA.” Ante at 422. I disagree and, instead,
agree with the conclusion
by
reached
the Court of
Appeals in Jager,
at
supra
by
defining
“employer” to
an “agent”
include
of the employer, the
Legislature “meant merely to denote respondeat supe-
Co
v Ford Motor
Elezovic
Opinion Weaver, J.
2 Thus, I
liability.”
than individual
liability[1]rather
rior
Jager
decision.
not overrule
would
impose
CRA to
intended the
Legislature
Had the
harassment,
it
commit
individuals who
liability on the
straightforward
more
done so in a
likely have
would
to include an
defining “employer”
than by
manner
“agent”
on the word
Relying
employer.3
“agent”
majori-
would, under the
liability
impose
individual
liability
allow individual
only
ty’s interpretation,
who,
positions
in similar
others
against supervisors
law,
“agents”
considered
might be
agency
under
who
coemployees
not permit
But it would
employer.4
If the
individually
held
liable.
a victim to be
harass
truly
impose
intended
Legislature
sexual harass-
on those who commit
under the CRA
language
choose
that it would
ment,
expect
one would
*24
commit the harass-
all individuals who
that would allow
their
as a
liable, regardless of
status
ment to be held
coemployee.
or
supervisor
majority’s
of the
Further,
the “round-aboutness”
1 Respondeat superior
is hable in certain cases
“means that a master
servant,
wrongful
principal for
of his
of his
and a
those
for the
acts
ed).
(6th
prima
Dictionary
of a
facie
agent.”
It is an element
Black’sLaw
hostile
environment. Radtke v
based on
work
case of sexual harassment
(1993).
elements,
Everett,
368, 383;
For all five
442
The
offers no clear reason for rejecting the
conclusion
phrase “agent
that
of the employer”
respondeat
denotes
superior liability. Rather, it simply
concludes
the phrase
that
an agent
“includes
of that
person”
mean “if
must
the words are
going
be read
sensibly”
agents
are subject to individual liability
5 See, e.g.,
Venture,
Developers,
AMCO Builders &
Inc v Team Ace Joint
(2003)
90, 103-104;
(Young, J., concurring)
469 Mich
I with the that disagree majority’s also that denotes concluding “agent” respondeat word superior liability places and not over the “text” of the statute. Ante at 421-422. “policy” the text of the statute does not mean that Interpreting read a in the statute in isolation from the act phrase we purpose Interpreting as a or from the of the act. whole judicial may, a statute with restraint and common sense fact, us to consider the act as a require whole its while we endeavor what purpose to understand Legislature including intended by particular phrase. case,
In purpose prohibit this MCL 37.2202 is employers sexually discriminating against employ- from By imposing liability employers ees. on for sexual harass- ment, employers encouraged steps will be to take prevent occurring sexual harassment from in the work- in a place. large company corporation, But often there not one that “person” is could be considered “em- for an “em- ployer” purposes determining whether discriminated an em- ployer” employee. The Thus, ployer entity. it is reasonable for the Legislature to include in the definition that an “em- ployer” “agent.” Including respondeat includes an this in the statute superior aspect employees ensures can hold while still employers liable harassment the interests of the balancing employer hmiting liability to those who can be considered the employer employer’s “agents” incorporating respondeat supe- to the principles require rior notice *26 472 MICH408 Opinion by Weaver, J. alleged harassment.6 Considering “policy” this behind the provision place does not policy Rather, over “text.” it way is another a judge exercises common sense and judicial restraint while attempting to reach a reason- able interpretation what the Legislature intended the words to mean.
Therefore, until Legislature the clearly creates indi- vidual liability statute, under the I would conclude that plaintiff does not have cause of against action Mr. Bennett under the CRA.7
ii The majority also concludes that the trial court properly granted a directed verdict in favor of defen- dant Ford Motor Company because plaintiff failed to establish that Ford had notice of the harassment. I disagree and would jury allow the to determine, under the totality of the circumstances, whether Ford had notice of the alleged sexual harassment.
The required elements to establish a prima facie case of sexual harassment based on hostile work environment are:
(1) employee belonged protected to a group; (2) employee subjected was to communication or sex; conduct on the basis of opinion, As noted in question footnote 5 of agency this I whether principles rigidly applied should be to the CRA rather than used as a general guideline interpreting CRA, suggest and I do not mean to by using “agent” respondeat superior word liability, denote Legislature clearly incorporate any intended principles and all agency law into the CRA. although I note I would conclude that does not have a against claim CRA, Mr. pursue any Bennett under the she can traditional tort claims that she have him. Ford Motor Co Elezovic v Opinion Weaver, J. (3) subjected employee to unwelcome sexual communication; conduct or (4) conduct or communication the unwelcome sexual substantially to or in fact did interfere with was intended employee’s employment intimidating, or created an hostile, environment; offensive work
(5) Everett, 442 Mich respondeat superior. [Radtke v (1993).] 368, 382-383; 501 NW2d *27 element, explained, As further under the fifth liability if, avoid notice of the upon environment, investigated it adequately hostile work and took remedial action. Id. at 396 prompt (quoting 232, App Downer v Detroit 191 Mich Receiving Hosp, [1991]). 234; 146 An employer 477 NW2d must have alleged notice of the harassment it can held before be liable, duty investigate and it does not have a take remedial action until it has actual or prompt Radtke, constructive notice. at and n supra 396-397 44. case,
In granted this the trial court a directed verdict plaintiffs Ford’s favor on hostile work environment claim on the basis that there was no notice to Ford.8 The trial court stated:
The fact of the matter is that there nowas notice to Rush, him, Ford. This 1998 letter to Mr. if it went to from son-in-law, any the defendant never made mention of only again, people sexual harassment. And she told supervisors. were Under normal circumstances I would agree enough. that that would be But in this it case was repeat told to them in confidence. She asked them not to it. again, complained And she she couldn’t come forward of her culture. because Appeals ruling.
The Court of
affirmed the trial court’s
8
summary disposition
Defendant Ford moved for
hostile
only
work environment claim
on the issue of notice.
442
Mich
408
Opinion by
J.
Weaver,
grant
This Court reviews de novo the
of a motion for
a directed verdict. Cacevic v Simplimatic Engineering
(On Remand),
Co
App
679;
248 Mich
645 NW2d
(2001);
Craig
see also
v Oakwood
Mich
Hosp, 471
(2004)
67, 77; 684
(stating
NW2d
decision on
judgment
motion for
notwithstanding
verdict is
novo).
reviewed de
In reviewing the trial court’s deci-
motion,
sion on the
“we examine the evidence and all
reasonable
that may
inferences
be drawn from it in the
light most favorable to
nonmoving party.”
v
Hord
Environmental Research Institute Michigan (After
(2000).
Remand),
399, 410;
463 Mich
In opinion, considering all the evidence and the reasonable inferences that may it, be from drawn there are questions factual about which jurors reasonable could differ regarding whether Ford had notice. There- fore, the issue of notice is not one that the trial court can properly law; decide as a matter instead, it is a question of by fact to be decided jury. Consequently, I would reverse the Court of Appeals affirmance of the trial grant court’s aof directed verdict in Ford’s favor and remand this to the trial case court.
Plaintiff testified 1995, that in supervi- she told her sor, Gary Zuback, that Mr. Bennett had sexually been harassing her. She also testified that around the same Elezovic v Ford Motor Co Opinion by J. Weaver, time, she told another supervisor, Vaubel, Butch who said that he would talk Bennett, to Mr. and that on occasions, different she her Welch, told coworkers.Dan Perry, Dave and Brad Goatee. She admitted that when she told Mr. Zuback Vaubel, and Mr. she told them confidentially. Dan Welch testified that he did not tell anyone about the first incident of harassment that plaintiff him, described to but that he later spoke to Rush, Jerome the supervisor of relations, labor 1998, October as well as Ron Mester and perhaps Richard Greenfield about the situation. Mr. Goatee testified that he was called down to labor relations 1996 or to discuss Mr. Bennett. Mr. Rush testified that before plaintiffs filed, lawsuit was Mr. Bennett told him plaintiff was to trying set Mr. up Bennett on a sexual harassment claim Ford, and that therefore, knew about the lawsuit before it was filed.
Labor relations notes written by Pete Foley Jer- ome Rush on August 1998, indicate that plaintiff very was upset felt that Mr. Bennett and another worker, Tammy Holcomb, were looking at her and laughing. Notes dated August 28, 1998, state the plain- tiff told Pete Foley that Mr. Bennett came near her when no one was around and that she was scared. Notes from Jerome Rush dated September 30, 1998, stated told him that Mr. Bennett was “harassing” her.
Letters from treating psychologist, Fran Parker, on September 19,1997, 10,1997, and November reference plaintiffs discomfort with Bennett, Mr. A by letter sent plaintiffs son-in-law, Paul Lulgjuraj, who is an attorney, 9, 1998, on April Mr. Rush states that his office investigating “ongoing acts of discrimina- retaliation,” tion and references threats made Tammy Holcomb, and advises that his office be *29 MICH408 by
Opinion
J.
Weaver,
subjected
not
that our client is
taking actions “to insure
17,
On December
in a hostile environment.”
working
that
1998,
explain
to Mr. Rush to
Rush
Dr. Parker wrote
6,
October
phone
Parker’s
call on
had misunderstood
that
had homicidal
1998,
plaintiff
to Rush to tell Rush
Parker’s
letter
stated that
thoughts.
and suicidal
intended to
plaintiff
did not tell Mr. Rush
Parker
Mr.
Bennett,
that the call was meant to ask
kill Dan
but
the
on
behalf because
plaintiff’s
Rush to intervene
“breaking her down.”
plaintiffs job
stress of
was
a
grant
in
the trial court’s
of
majority,
affirming
The
favor,
in
creates a
improperly
directed verdict
Ford’s
majority’s analysis,
Under the
rule of automatic waiver.
confidentiality when
any
employee requests
time an
harassment,
the
will have
reporting
employee
sexual
Ante at 427-428.
request
waived notice.
While
jury
the
confidentiality
certainly something
determining
employer
whether the
should consider
notice,
should not constitute an
request
had
such
Rather,
automatic
of notice.
all
evidence
waiver
must be
totality
and the
circumstances
presented
determining
employer
whether
considered when
Meritor
See, e.g.,
actual or constructive notice.
had
Bank,
Vinson,
FSB v
72;
106 S Ct
Savings
US
2399;
(1986),
a rule of
rejecting
Therefore, I would conclude that the question of notice is not one that can be decided as a matter of law court, the trial but one that must be decided by the jury after it considers the entire record and weighs the conflicting evidence.