Hamed v. Wayne County

Wayne County l HAMED v WAYNECOUNTY (Calendar 4). Argued January 19, Docket No. 139505. No. Decided July 2011. brought against Wayne Tara K. Hamed an action in the Circuit Court County, Wayne Wayne County Department, Sheriffs former deputy Reginald Johnson, others, sheriffs and alleging gross negligence sexually various claims of after Johnson during County jail. Wayne assaulted her her detention at the complaint Plaintiff amended her to include claims under the Civil Rights (CRA), seg., specifically, Act quid MCL 37.2101 et of claims pro quo and hostile-environment sexual harassment under MCL 37.2103(i). (hereafter county department The sheriffs defendants) summary disposition. court, moved for The Michael E Sapala, J., granted summary disposition, dismissing defendants all plaintiffs claims, respect of civil concluding plain- with quid pro quo claim of tiffs sexual harassment that defendants vicariously could not be held liable for the criminal acts of sheriffs department employees principles under traditional common-law of respondeat superior. appealed, Plaintiff and defendants cross- appealed. EJ., Appeals, The Court of and Meter Borrello, JJ., reversed proceedings, and remanded for further Stephens, holding quid pro quo defendants could be held liable for theory respondeat superior, applying sexual harassment under a of analysis Champion Inc, Security, v Nation Wide (2009). (1996), plaintiffs App case. 284 Mich The Supreme granted application ap- Court defendants’ for leave to (2010). peal. 486 Mich 996 opinion by joined In Justice Chief Mary Beth Kelly, Young Supreme Justice and Justices Markman and Zahra, Court held-. provider public may A vicariously service not be held liable quid pro quo public affecting sexual harassment on services employee basis unforeseeable criminal actions its committed scope employment outside the of his or her under CRA and principles respondeat superior. traditional common-law Because Champion wrongly contrary, pursuant held to the to stare decisis principles, it is overruled. Mich 1 employ- of sex in prohibits discrimination because 1. CRA accommodation, public MCL ment, places public services. 37.2103(i) including quid because of sex” defines “discrimination harassment, rejection quo to or pro in which submission advances, favors, requests for or other sexual sexual unwelcome physical of a sexual nature is conduct or communication verbal or obtaining public explicitly implicitly a term or condition of or made public affecting receipt the of or as a factor in decisions services used quid quo Accordingly, alleging pro plaintiff sexual harass- a services. by preponderance affecting public of the must show a ment services (1) subjected any types of of was to the that he or she evidence in the statute or communication described unwelcome sexual conduct (2) provider public-service provid- public-service or the and that the proscribed or agent conduct a term made submission to the er’s obtaining plaintiffs public or submis- services used the condition of rejection proscribed a factor in a decision or of the conduct as sion to affecting public the receipt When harassment or her of services. his agent plaintiff pursuing an and the is a civil committed was against principal, the extent of the the a court must determine claim liability using agency principles, principal’s common-law vicarious incorporated. specifically If a not the defendant would be which CRA vicariously principles agent for acts of under traditional hable the its respondeat superior, plaintiffs claim under the CRAfails a the of matter of law. employer respondeat superior, an the doctrine of is 2. Under scope employees generally its within the liable for the torts commit beyond employment, are the not for those torts that of their but employer’s scope An act is considered within the of the business. employee engaged employ- scope employment in the of if the was accomplished in in the act furtherance or the er’s service and business, contrary employer’s if of even the act was interest the instructions, employer’s employee if the acted inde- but not solely employee’s inter- pendently to further the individual case, beyond plaintiff assault In this Johnson’s sexual ests. independent scope employment it was an action of his because solely in furtherance of Johnson’s own interests. undertaken may employees employer An liable for acts of 3. be held instances, scope of in but its business certain outside liability employees employer’s to those for the torts of its limited reasonably reasonably have An can or should foreseen. acts it foresee (1) employer or if had actual constructive is foreseeable act (2) knowledge prior or similar conduct and actual constructive knowledge employee’s propensity with to act in accordance prior happened in at close time to that conduct. If the conduct issue conduct, employer’s knowledge give similar an of that conduct would foreseeable, rise a valid inference if that the conduct was whereas employee’s temporally employee’s actions were distant and the change character, suggested foreseeability recent record would Imposing liability not be established. for unforeseen and unforesee- able criminal actions would create an burden unfair societal on employers, potential employees, public-service providers. In this case, legally responsible defendants were not for Johnson’s criminal misconduct, most, previous gave acts because his at defendants notice propensity protocol disobey that Johnson had a work-related aggressive engage provoked. when behavior Because Johnson’s prior was not misconduct similar to the violent sexual assault he against plaintiff, perpetrated no defendants had actual construc- knowledge engage tive that Johnson would criminal mis- may vicariously conduct and defendants therefore not be held liable quid pro quo principles sexual harassment under traditional respondeat superior. strictly 4. held that an liable if supervisor accomplished rape through supervi- exercise sory power victim, citing aided-by-agency exception over the general employers rule that are liable for torts committed However, scope employment. Supreme outside the Court has principal vicariously never held a liable for the unforeseeable acts agent scope employment of an except committed the of outside the rights under limited circumstances of the civil matter Champion. Champion’s holding contrary plain was to the lan- guage specifically of incorporated the CRA. CRA common-law agency principles “employer,” Michigan’s in its definition of but agency principles aided-by-agency common-law do not include the exception respondeat superior adopted, Champion that nor did Legislature modify by the including aided-by- the common law the agency exception Accordingly, Champion wrongly in the CRA. was pursuant principles and decided to stare decisis be must overruled. Reversed; summary disposition reinstated. joined by Justice dissenting, Justice Cavanagh, Marilyn Kelly, disagreed majority’s stated he the with decision overrule Champion correctly decided, because it was it furthered the legislative purpose CRA, intent and of the and the of doctrine stare weighed against overruling decisis it. He further that the stated

majority usurped newly jury misapplying had the of role the created standard to conclude that defendants were entitled to favorable decision as a of law. matter dissenting, joined part Justice but all III Justice Hathaway, Cavanagh’s separately dissent and wrote to state belief her Mich protect correctly decided and served to the was majority’s further that the of discrimination. She stated victims significantly legislative intent em- decision undermined ployers than victims of sexual harassment bear rather remedying eradicating and discrimination and would costs of dismantling CRA. result Rights — — — Public Pro Quid Quo Civil Sexual Harassment Services - Respondeat Superior. Harassment Sexual vicariously may public-service provider liable under the

A be held quid quo affecting public Rights pro Civil Act for sexual harassment employee criminal acts that its on the basis of unforeseeable services employment; scope outside of his her an act is committed employee scope employment within if the considered employer’s accomplished engaged act in in the service and business, employer’s or in the interest of but not furtherance scope employee independently employment if the acted within the interests; solely employee’s to further the individual an act is and knowledge if the had actual foreseeable or constructive prior knowledge conduct and actual or constructive similar conduct; employee’s propensity to act in accordance with that if the conduct, prior at issue in time similar conduct occurred close knowledge prior may give employer’s rise a valid of that conduct foreseeable, employee’s if an inference that the conduct was whereas temporally employee’s recent record actions were distant character, change foreseeability suggested a would not be estab- (MCL 37.2103K]). lished Roller), L. Roller EC. Elmer L. Brian Elmer (by Associates, Lavan), Gary Lavan & RC. Brian P. (by PLLC P Supanich Gary (by for K. Supanich) Tara Hamed.

Zausmer, Tayler, Kaufman, August, Caldwell & P.C. Tucker), Zausmer Carson Mark J. J. (by Wayne County Department. and the Sheriffs Amici Curiae:

Cohl, A. & P.C. Peter Cohl Toskey, Stoker (by McNulty), Richard D. Michigan for the Association Counties. County Wayne Opinion the Court Pries, (by

Mellon P.C. T. A. James Mellon David Kowalski), Manage- for the Risk Michigan Municipal Authority. ment

O’Connor, DeGrazia, O’Connor, (by & Tamm PC. Wilhelmi), Julie McCann O’Connor and Elizabeth L. for League and Mu- Michigan Municipal Michigan nicipal League Liability Property & Pool.

Johnson, Rosati, Field, Aseltyne (by & P.C. LaBarge, Marcelyn Stepanski), A. for Defense Trial Michigan Counsel. Linderman)

Linderman Law P.C. Marla A. for (by Michigan Association for Justice. Schuette, General, Bursch,

Bill Attorney John J. General, Solicitor and Heather S. Meingast and Ann Sherman, Attorneys General, Assistant for the Attor- ney General. Roumel,

Nacht, Salvatore, Walker, & Blanchard P.C. (by Salvatore), B. Lawyers the Women Jennifer Michigan. Association of granted J. We to appeal leave Kelly,

MARY Beth case scope to determine the of an employer’s liability vicarious for quid pro quo sexual harassment affecting public services under Civil Michigan’s Rights (CRA).1 Act consider Specifically, Wayne we whether County and be department may its sheriffs held vicari- ously liable for civil claim under MCL 37.2103(i) on a criminal deputy based act of a sheriff during committed working beyond hours but plainly scope employment. We hold his that defendants vicariously may quid pro be held hable for quo seq. MCL 37.2101 et Opinion the Court under tra- services public affecting harassment sexual Accordingly, superior. respondeat principles ditional and rein- judgment of Appeals’ the Court reverse we summary dispo- granting court’s order the circuit state favor. in defendants’ sition HISTORY

I. AND PROCEDURAL FACTS County sheriffs 2001, deputy Livingston August In Hamed, on a warrant Katherine Tara plaintiff, arrested had also plaintiff Because support. child unpaid for in Wayne for violations outstanding probation warrants later trans- County deputies Livingston County, County. Wayne custody Wayne plaintiff ferred Wayne transported plaintiff County deputies Deputy at the jail, arrived plaintiff When County jail. in the duty on only officer Johnson was Reginald plaintiff, alone with area.2 While registry inmate comments sexually charged her to subjected Johnson exchange for better treatment and offers advances, but Johnson these Plaintiff resisted favors. jail subject into an area of plaintiff transferred her. sexually assaulted cameras to surveillance transported plain- thereafter, deputy a female Shortly release, plaintiff After her jail. part tiff to another The authorities. departmental the incident to reported terminated Department County Sheriffs Wayne subsequently and the state employment, Johnson’s conduct, of which criminal sexual charged Johnson with ultimately convicted.3 he was 2 Wayne County jail regulations require be in female officer present. trans are The officers who female inmates attendance when jail supervisor plaintiff that Johnson was ported to the informed plaintiff duty. supervisor officers to leave only deputy advised the on with Johnson. 750.520c(k). See MCL Wayne County Hamed Opinion of the Court 2003, Johnson,

In plaintiff complaint against filed Wayne County, Depart- Sheriffs ment, others, Sheriff, among and the Wayne County alleging gross various In negligence.4 claims plaintiff complaint, adding moved to amend her civil quid quo claims pro hostile-environment 37.2103(i). sexual harassment to MCL pursuant Defen- disposition dants then moved for under summary MCR 2.116(C)(8) that, (10), arguing CRA, under the jails liability and, are excluded from because defendants had no notice of sexually harassing conduct, they Johnson’s could not vicariously be liable for his actions.

The circuit granted court summary defendants dis- position in two separate orders and all dismissed plaintiffs civil claims. It concluded that plain- tiffs hostile-environment claim failed because defen- dants had no prior notice that a Johnson was sexual predator. The plaintiffs circuit court also dismissed quid pro quo sexual harassment claim on the basis that vicariously defendants are not liable for the criminal acts sheriffs department employees.5 Plaintiff then appealed the circuit court’s decision only with to regard quid pro her sexual quo harassment claim. The Court of Appeals applied reversed and this Court’s analysis Champion v Nation Security, Wide Inc,6 to hold that “[e]mployers vicariously are liable for acts of quid pro quo sexual harassment committed by their when employees employees those their super- use only remaining The Wayne defendants are and the County Department. judgment Sheriffs Plaintiff received a default Johnson; against Johnson, plaintiffs action, while a defendant in is not Thus, party appeal. purposes opinion, a for of this our encompass only references to “defendants” the institutional defendants. Ctr, (2006). Zsigo Hurley 215; See Med 475 Mich 716 NW2d 220 6 Champion Security, Inc, v Nation Wide 545 NW2d 596 (1996). 1Mich Opinion op the Court the harassment.”7

visory authority perpetrate had held that established Appeals plaintiff Court of claim because quo sexual harassment quid pro viable deputy authority used his sheriffs “Johnson .”8 leave vulnerability granted .. . We plaintiffs exploit vicariously may be held consider defendants whether affecting harassment quid quo pro liable 37.2103(i).9 MCL under public services

II. STANDARD OF REVIEW Appeals de novo whether the Court of We review summary grant the circuit court’s reversing erred may held vicari defendants be disposition.10 Whether affect ously quid pro quo liable for sexual harassment question under CRA is a of law ing public service de novo. the extent that defendants’ that we review To interpret meaning us to arguments require CRA, interpreting our is also de novo.12When review statute, meaning Legislature’s of a discern we read the by examining language intent used.13 We whole, statutory in context and as a consider language If ordinary meaning every word.14 ing plain and and language unambiguous, apply is clear then we judicial the statute without construction.15 as written 7 (2009). Co, 693; Wayne 681, Hamed v App Mich 284 775 NW2d 1 8 Id. 9 (2010). Co, Wayne v Hamed Mich 486 996 10 (1999). Rozwood, 109, 118; v Maiden 461 Mich 597 NW2d 817 11 Club, Country See Veenstra v Washtenaw 645 (2002). NW2d 643 12 Id.

13 Hts, Corp 175, 181-182; 721 Danse v Madison Mich 644 NW2d 466 (2002). 14 (2008). Co, 352, 366; Herman Berrien 481 750 570 Mich NW2d Corp, Danse Mich at 182. Wayne County Opinion of the Court analysis

III. QUID A. PRO SEXUAL HARASSMENT THE QUO UNDER CRA recognizes CRA from freedom discrimina- tion right.16 because sex is a Accordingly, civil the act prohibits discrimination because of sex in employment, places public accommodation, public services.17 37.2103(i) MCL broadly defines be- “discrimination cause sex” as follows:

Discrimination because of sex includes sexual harass- ment. Sexual harassment means unwelcome sexual ad- vances, requests favors, for sexual or other verbal physical conduct or communication a sexual nature following under the conditions: (i) Submission to conduct or communication is made explicitly implicitly a term or condition either or to obtain employment, public public services, or accommodations education, housing. or

(ii) rejection Submission to or of the conduct or commu- by an nication individual is used decisions factor affecting employment, public the individual’s accommoda- services, education, or public tions housing. or (Hi) purpose The conduct or communication has or substantially interfering effect of with an individual’s employment, public services, public or accommodations education, housing, hostile, creating intimidating, or or employment, public accommodations, or public offensive educational, services, housing [Emphasis environment. added.] 37.2301(i)

The first two subdivisions of MCL quid describe pro quo harassment, while the third subdivision public 37.2301(b). MCL MCL 37.2202 services). 37.2102(1). For (employment); purposes jail is a MCL 37.2302 “public opinion, service” as defined we (public assume, accommodations without deciding, MCL 10 1 490 Mich op Opinion the Court harassment.18 sexual refers to hostile-environment sexual harassment alleging quid pro quo A plaintiff by preponderance affecting public services must show (1) subjected any he or she was of the evidence or sexual conduct communi- types of the of unwelcome (2) public in the statute and that the cation described agent public provider’s service provider service conduct a term or proscribed to the made submission plain- or used the obtaining public services condition con- rejection proscribed to or tiffs submission his or affecting receipt in a decision her duct as factor public services.19 agent committed When the harassment was rights claim plaintiff pursuing against and the is a civil case, always as in this a court must principal, liabil- employer’s “determine the extent of the vicarious the CRA ity require analysis .. . .”20 because We agency prin- specifically incorporates common-law Thus, vicariously if a defendant is not liable ciples.21 traditional agent principles the acts of its under claim under plaintiffs respondeat superior, CRA fails as a matter of law.

B. RESPONDEAT SUPERIOR respondeat superior The doctrine of well estab- An liable for generally lished this state: 18 (2000). Trettco, Inc, Chambers v NW2d 910 quid (stating pro quo See id. the test for in the harassment context). assume, analysis, employment purposes For also of our we quo deciding, plaintiff quid pro can the elements without establish affecting public sexual harassment services. at 311. Id. 37.2201(a) because MCL Id. We reached this conclusion Chambers agents,” thereby incorporating “expressly ‘employer’ to include defines Chambers, principles agency into act. 463 Mich at 311. common-law Opinion of the Court employees scope the torts its commit the of within their It employment.22 employer follows that “an not liable the . . by employee for torts . committed an when those are the of beyond scope employer’s torts the business.”23 This scope Court has defined “within of employ- the “ in ‘engaged master, ment” to mean of his service ”24 while Independent or about his master’s business.’ action, solely intended further indi- employee’s interests, be fairly vidual cannot characterized as fall- scope employment.25 Although within the ing of an act may contrary employer’s instructions, be to an liability if employee will nonetheless attach accomplished interest, act in furtherance, or the of employer’s business.26

Here, there is no question that Johnson’s sexual plaintiff beyond assault of scope was of his employ- deputy ment as a The sheriff. sexual assault was an independent action accomplished solely furtherance of own criminal Johnson’s It interests. cannot be said any of the institutional defendants in any benefited way from Johnson’s criminal assault or his exercise of unlawful authority In plaintiff. fact, over Johnson’s behavior expressly prohibited defendants’ rules regarding treatment of detainees and defendants’ anti- policies, discrimination to say nothing of the criminal In short, law. there fair is no basis on one which could 22 See, e.g., Zsigo, 221; Bradley Stevens, 556, 475 Mich at v 329 Mich (1951); Jones, 355, 358; 46 NW2d 382 v Martin 302 Mich 4 NW2d (1942); Republic Co, Davidson v Chinese Restaurant 201 Mich (1918). 396; 167 NW 967 23Zsigo, 475 Mich at 221. Mitchell, 7, 13; (1954), quoting Riley Barnes v 341 Mich 67 NW2d 208 (1912). Roach, 294, 307; 168 Mich 134 NW 14 7.07, Agency, 3d, p § 2 Restatement 201. Barnes, (examining discussing See scope 341 Mich at 13-16 cases employment). l Opinion Court vicari- county themselves

conclude that sheriff acts. ously wrongful took part employer rule that an not liable general business, scope of outside the its employee acts every however, liability not preclude does vicarious consistently has recognized This Court instance. held for its con- employee’s can be liable employer an if or should have known duct “the ‘knew ” propensities and criminal record’ employee’s [the] an tort.27 employee before that committed intentional em- analysis involves of whether an inquiry This (1) knowledge prior actual or constructive ployer had (2) or constructive knowl- similar conduct actual to act in accordance edge employee’s propensity two-pronged Under approach, with that conduct. this may close in time to prior the conduct at issue be so that under the knowledge prong similar conduct first that the was gives rise to a valid inference conduct if an prong. Conversely, undér the second foreseeable were distant and the employee’s temporally actions change recent record a in charac- employee’s suggested ter, foreseeability would not be established.28 Brown, v principle

We in Brown which applied employer vicariously held not liable for we that the the rape employee because, its under committed circumstances, There, act was unforeseeable.29 27 381; Co, Mich 166 McClements v Ford Motor 473 702 NW2d Builders, 410, 412; (2005), Inc, quoting Hersh v 385 Mich 189 Kentfield omitted) added). (1971) (emphasis (quotation NW2d marks not, assert, dissenting justices analysis This does as the abandon employee’s only prior that “an conduct is foreseeable to caselaw to hold recently precise employer employee an if the had committed conduct inquiry that n 20. This criticism mischaracterizes the at issue.” Post at 56 undertaken, has caselaw. See must he which its roots well-established McClements, Hersh, Mich at 412. 473 Mich at (2007). Brown, 545, 554-555; Brown 739 NW2d 313 v Hamed Opinion of Court employee repeatedly sexually defendant’s made offen- sive plaintiff, comments female coworker. plaintiff defendant, yet to the reported incidents it action, took no and the employee subsequently raped In plaintiff. concluding employer that was not liable, vicariously employee we noted had no prior criminal record and had never threatened to rape the plaintiff. explained: We employer] reasonably anticipate

[An cannot that an lewd, employee’s tasteless comments are an inevitable prelude rape clearly if those comments did not unmistakably particular activity threaten criminal put would have a reasonable on notice of an specific imminent risk of harm to a victim. Comments of inexorably t,o do sexual nature lead criminal sexual any exasperated, conduct more angry than an comment assault.[30] inexorably results in a violent criminal summary, In consistently we have held that em- ployer’s liability for the criminal acts of employees limited to those acts reasonably it can foresee rea- sonably have should foreseen. This is we should because not expect employers to employees assume their will Criminal the law. disobey conduct is inherently arbitrary and highly unpredictable. As noted in we Brown, even law agencies, enforcement are which detecting crime, trained in and preventing pre- cannot 30 not, dissenting justices state, Id. at Brown 555. did as the employee’s an prior gener “conclude[] that violent criminal are acts ally put a employee’s propen sufficient to defendant notice of on the sity Rather, to similar commit violent . . . acts Post at 57. Brown knowledge prior provides made clear potentially that of acts violent an employer employee’s propensities. Brown, of notice an violent 478 justices dissenting attempt Mich holding at 561. The to broaden the in justify position knowledge Brown to their that defendants’ prior question Johnson’s dissimilar violent act suffices to create a foreseeability. regarding fact

[14] Opinion of the Court 490 MICH ^[1] Contrary of criminal acts.31 diet the occurrence impo- the governing caselaw argument, our plaintiffs requires an liability employer on of vicarious sition authority exercise of some form simply more than adopt Thus, it be employee. would anomalous by an services provide public requiring employers a rule employ- their against the criminal actions of protect Rather, fore- foreseeability. some indicia of ees absent liability, for imposing element seeability necessary Brown, in decline to we and, recently as we stated foreseeability into an ‘avoidabil- the test of “transform whether merely judge hindsight that would ity’ test harm could have been avoided.”32 respon governing well-established rules Michigan’s societal bur justified by are further superior deat liability for unforeseen criminal imposing den that 31 PKT, 322, 335; 554, citing Inc, Id. at MacDonald v 628 (2001). NW2d 33 “avoidability Brown, type Mich An of test the at 556. test” is view, justices prohibiting dissenting policy In their defendants’ favor. demonstrates, deputies being from female inmates male alone with However, itself, preventable the sexual and foreseeable. assault was any impose liability policy real on the alone to obliterates reliance foreseeability requirement; employer’spolicy assessing irrelevant to respect specific employee. knows with what liability every consequence imposition time an would be of vicarious disobeys policy,regardless employee employer’s of whether act the actual circumstances. was unforeseeable under knowledge past Rather, specific explained, as we have a defendant’s propensity conformity conduct misconduct and to act with such must foreseeability analysis. analysis, of a This which the be the focus justices “newlyimposed foreseeability analysis,’’post dissenting at term a recognizes foreseeability always merely has been touchstone liability imposed. be The criticism main for when vicarious will given previously Cavanagh surprising, that Justice has is not dissent effectively imposition expressed support amounts to the strict what analysis. Brown, liability foreseeability Mich in lieu of a See at Resort, (Cavanagh, J., Inc, dissenting); Anderson v Pine KnobSki 570-580 (2003) (Cavanagh, J., dissenting). 20, 30-35; Mich 664 NW2d Opinion op the Court only actions would holding create. Not would employers unfair, for vicariously liable such acts be but so doing would to further an end attempt impossible by requir ing employers prevent to harms they cannot anticipate, are, essence, which unpreventable. The result would be the implementation of burdensome and impractical to regulations employee meant oversee conduct. Yet because such sure given measures are to fail criminal conduct its nature cannot or anticipated be foreseen, employers essentially would become insurers responsible recompensing for victims for the criminal of acts their The harm a employees. adopting of such policy potential would also extend employees to with less than impeccable personal backgrounds, who would encounter barriers to employment employers, because caution, an out of abundance of would be less willing employ these individuals out of fear that any prior indiscretion be could used to impute lawsuit knowledge to the it employer that did not have.33

Applying the foreseeability analysis in this case dictates the conclusion that defendants are not legally responsible for Johnson’s criminal acts. The majority complaints against during Johnson employment his with defendants catalogue questions For a some of the difficult that would confront employer operating dissenting justices’ rule, Brown, under the see (Maekman, J., concurring). proposed by Mich at 566-570 “The rule dissent, questions arising rule, and the unanswered from would uncertainty among employers throughout create confusion and employers only state . .” .. Id. at 566. And would not be ones to suffer; employees because, dissenting would suffer as well were the justices’ law, rule to become what rational would ever hire anybody any history problems “Why background? with in his or her any employer expose vagaries would litigation- rational itself to the by-hindsight predict unpredictable ... it where fails to behavior if this by simply firing failing every could all be [or hire] avoided odd or rude quirky employee?” dissenting justices Id. at 569-570. The rule the propose imperfect histories, would result in those with criminal or even arrests, merely history becoming increasingly unemployable. 1Mich Opinion op the Court policies, such obey his work-related

involved failure address, change of home or unsatisfac- report failure leaving example, temporarily tory performance, work grievances on Some of the duty. while his work station behavior, reflected more serious against filed Johnson to authorization a vehicle without using police such as home, making baby allegedly to his deliver formula an eviction threatening receiving calls to his landlord after a male notice, physical in a altercation with engaging light in the exchange inmate after an of words.34Viewed de- misconduct plaintiff, past put most this favorable irresponsible aggres- fendants on notice of Johnson’s which, most, at defen- tendencies, demonstrates that sive were that Johnson had propensity dants aware engage in disobey protocol aggressive work-related had Defendants no actual provoked. behavior when knowledge of similar criminal sexual prior constructive put did not aggression misconduct. Even the incident of reasonable notice that Johnson would defendants on inmate; sexually assault an actions do not inevita- violent Because bly lead acts of criminal sexual conduct.35 prior Johnson’s misconduct was not similar to the violent hold perpetrated against plaintiff, sexual assault he we vicariously not be for may quid that defendants held liable on Johnson’s unforesee- pro quo sexual harassment based principles respon- able criminal act under traditional superior.36 deat dissenting justices misrepresent Johnson’s The seriousness of history conduct, past stating specific “had a abusive that he violent and fact, engaged in a Post at In Johnson had

behavior toward inmates.” 56. single physical years awith male inmate in before altercation here, in this case. Johnson the sexual assault Unlike circumstances initiate inmate. did not the altercation with the male 35 Brown, Mich at 555. Cf. foreseeability justices analysis, dissenting conclud dismiss our ing past plaintiff more violent act and sexual assault of Johnson’s Hamed Opinion of the Court SECURITY,INC, C. CHAMPION V NATIONWIDE ANDITS PROGENY urges ignore Plaintiff us these traditional principles reasoning common-law and extend the of this Court’s decision which referred to the Champion, Agency’s Second Restatement of ex- “aided-by-agency” reject to the rule of We ception respondeat superior.37 because, argument explain, this for reasons we will Champion wrongly applied respondeat superior exception to the CRA. addressed,

In this Court Champion, as a matter of impression, first whether an employer could be held vicariously quid liable for pro quo harassment In case, under the CRA. plaintiff worked as security guard, and her immediate supervisor sched- work, uled her, her trained her performance, oversaw and was responsible disciplining During her. question concerning than a decade later is sufficient to create a of fact liability. According dissenting justices, defendants’ vicarious to the de- sexually had fendants notice that Johnson would assault a female inmate Johnson, years earlier, engaged physical because had in a altercation view, by any past may initiated a male inmate. In their violent conduct jury-submissible question regarding foreseeability. Moreover, create a question foreseeability their contention that the should have been jury substantially submitted to the matter because this similar to unavailing. case, employee Hersh is In that the defendant’s had prior years earlier, criminal conviction for similar conduct 10 which the about, employer establishing question regarding knew thus a factual Hersh, employee propensities.” whether the had “vicious 385 Mich at indicated, 415. As we have evidence of dissimilar violent conduct is- reasonably predictive not of violent sexual conduct. Nor can it be said employer genuinely that a reasonable could have foreseen Johnson’s plaintiff single entirely sexual assault of on the basis of a instance of provocation by dissimilar violent conduct that arose as result of a male years justices dissenting recognize inmate 13 earlier. The fail to that the temporal dissimilarity past distance and the between conduct and the employer conduct at issue itmake unreasonable to concludethat an could engage quid pro quo have foreseen that Johnson would harassment or commit a criminal sexual assault. 37Champion, 450 Mich at 712 n 6. 490 Mich 1 Opinion Court shift, making who had been supervisor, weekend comments to the led her to sexually suggestive plaintiff, room, locked her in a building, a remote area of the refused, plaintiff supervi- demanded sex. When the The her forcibly raped plaintiff employer sor her. sued sexual harassment under the CRA. The quid pro quo argued supervisor acting defendant that the was not he because it had not agent raped plaintiff its when the rape.38 authorized rejected Court argu- defendant’s

ment, construction, that “under reasoning defendant’s liability by could avoid simply showing it did authorize the sexually offensive con- duct.”39The Court indicated that the defendant’s “con- agency principles [was] struction of far too narrow” and briefly support aided-by-agency cited in exception 219(2)(d) § articulated in of the Second Restatement of Agency.40The Court further stated that recognize

[the view] defendant’s fails to that when an employer gives supervisors authority certain over other employees, accept responsibility remedy it must also supervisors’ harm caused unlawful exercise of that authority. scheduling From his decisions that allowed him 38Id. at 705-707.

39Id. at 713. Agency, 2d, 219(2), 481, p provides § Id. at n 6. Restatement subject liability [a] master is not for the torts of his servants

acting scope employment, outside the of their unless: (d) purported speak the servant to act or to on of the behalf authority, principal upon apparent and there was reliance or he by agency accomplishing was aided in the tort the existence of the relation. County Wayne Hamed Opinion op the Court plaintiff] ordering [the of her into to work alone with his part building, supervisor] [the used his a remote put plaintiff] supervisory power [the in the vulnerable fact, rape. position that led to her In there is little doubt supervisor] rape [the [the would have been unable to supervisory authority.[41] plaintiff] but for his exercise of cases, federal Court held Citing multiple strictly supervi- [is] that “an liable employer where accomplishes rape through sor the exercise of his justi- over the victim.”42 The Court supervisory power holding “employers rarely, fied its on the basis that if conduct, ever, consequently] authorize such em- [and ployees longer remedy quid pro would no have a for quo sexual harassment.”43 later, years

Four this Court again quid considered a Trettco, pro quo sexual harassment claim in Chambers v There, supervisor Inc.44 subjected plaintiff sexually offensive conduct. After enduring this conduct days, for four the plaintiff reported the incidents to supervisor ultimately another sued her quid hostile-environment ha pro quo sexual jury rassment. A returned a plaintiffs verdict in the favor, and the Court Appeals affirmed. The Court of in Chambers Appeals referred to federal caselaw that applied federal Civil Act45 Rights to hold that employers vicariously are liable supervisor when a victimizes subordinate creating hostile work environment. (citation omitted). Champion, 450 Mich at 712 Champion, Id. at 713-714. Since our decision in the drafters of the Agency aided-by-agency excep

Third Restatement of have excluded the Agency. tion included in the Second Restatement of 43 Id. at 713.

44 Chambers, 463 Mich 297. seq. 2000e et USC Opinion Court

This Court to consider whether granted prin- leave from federal should ciples apply derived caselaw brought under CRA. held that Michigan’s claims We considering Michigan’s courts claims under CRA must Michigan precedent language adhere to and the CRA.46 clarified the sexual regarding We law harass- ment employment Michigan under CRA and recognized expressly “statute addresses an employer’s liability vicarious for sexual harassment by committed employees by defining ‘employer’ include employer employer’s agents.”47 both the and the definition, Using this we determined that the Michigan specifically CRA incorporates principles common-law respondeat superior and that “whether analyzing quid pro quo harassment or hostile environment harass- ment, question always fairly whether it can be said that the committed the violation —either or directly through agent.”48 After Chambers, our decisions Court considered the doctrine of respondeat superior generally in Zsigo Hurley Med Ctr.49Although Zsigo claim, did not rights involve civil the plaintiff sought to hold the defendant-employer vicariously liable for various intentional tort claims using reasoning Champion and the aided-by-agency exception to the respondeat doctrine of The superior. underlying facts involved sexual assault perpetrated the defen- 46 Chambers, 463 Mich at 316.

47Id. at 310. at 312. Id. 49Zsigo, single intervening 475 Mich 215. This Court did consider concerning quid pro quo harassment, civil case but require application resolution of that case did not of the doctrine of respondeat superior plaintiff because the failed to establish that sexual Corley Ed, harassment had occurred. See v Detroit Bd Mich (2004). 681 NW2d 342 Opinion of the Court dant’s employee against plaintiff, who had been admitted as a in the patient hospital. defendant plaintiff reported the incident and sued subsequently on the hospital employee’s basis of the actions. rejected

We the plaintiffs theory liability of vicarious any notion that Michigan recognized common law aided-by-agency exception adopted that this Court had it in With regard reference to Champion’s Champion.50 the aided-by-agency exception, explained we that Cham- did the pion adopt aided-by-agency not but exception, referred to it in “only passing very on the basis of the distinct of that rights facts civil matter.”51 We further in explained Champion applied only the context of 37.2103(i) quid pro quo sexual harassment under MCL and, instances, in such “the sexual assault must be ‘ac- complished through supervisor’s manage- the use of the ”52 ultimately rial powers.’ rejected plaintiffs We theory liability because it have subjected employ- would liability ers to strict for unforeseen occurring acts outside scope of an employee’s employment.53Accordingly, Court declined to Zsigo adopt aided-by-agency excep- tion and limited applicability specific to the facts of the rights civil claim in Champion.

D. CHAMPIONWASWRONGLYDECIDED claims, Because involved intentional tort it Zsigo did provide not an opportunity validity address the in Champion rights required the civil context.54 us Zsigo 50Zsigo, 475 Mich at 221-224. at Id. 223-224. 19, quoting Champion, Id. at 224 n 450 Mich at 704. 53Zsigo, Mich at 227. Young Although recognized exception respondeat Justice that the

superior Champion square. any . created was “hard to . with agency, isolated, inexplicable conventional notion of and ... stands as an 490 Mich 1 Opinion op the Court Michigan recognized common law

to consider whether aided-by-agency exception, given the intentional present places tort claims at issue. The matter now us, validity continued before Champion’s squarely cannot be reconciled with Champion we conclude Chambers, or the CRA itself. Zsigo,

First, contrary note that Champion’s holding we language of the CRA. As plain explained we Chambers, specifically incorporates the CRA common- agency principles “employer.”55 law its definition of Michigan’s however, common-law do agency principles, not include the and the aided-by-agency exception,56 did Legislature modify the common law includ ing aided-by-agency exception the CRA.57The Champion recognize Court failed to clear intent. Rather, here, like the dissenting justices Court reasoned that the remedial purpose of civil justified holding law the defendant employer vicariously liable for the acts of its based on employee, apprehension that adherence to agency traditional principles completely employer liability would foreclose quid pro quo sexual harassment claims.58 exception” agency jurisprudence, to this Court’s the Court was con- Champion given merely application strained limit the of that no civil Zsigo. Id. at (Young, J., concurring). claim at issue in 232 55 Chambers, See Mich at 463 310-311. 56 Zsigo, See 475 Mich at 223-224. 57 affirmatively law common remains force until it is modified. 1963, 3, Legislature presumed § Const art 7. The know common law, any abrogation Dawe v Dr explicit. of the common law must be Assoc, PC, (2010). 20, 28; Reuven Bar-Levav & 485 Mich 780 NW2d 272 58 Champion, dissenting justices 450 Mich at 713. While the are correct post may consideration, purpose of a statute a relevant be at 38 only 3, they recognize n what fail to that this is correct so far as the purpose language of the statute is derived from actual of the statute. (On Secretary Rehearing), 194, See Mich Ed Ass’n v State (2011) (“The 202-203; statute], purpose [the 801 NW2d 35 clear Opinion of the Court Aside from failing give effect to the Legislature’s intent, this reasoning is flawed for two additional First, reasons. it wrongly general elevates CRA’s purpose remedial plain above its language. Such rea- soning is contrary to the of statutory cornerstone inter- pretation, which is the rule that the plain language used is the best indicator Legislature’s of the intent.59 Sec- ond, policy concern at the heart of Champion is fundamentally flawed because it was on an premised unfounded fear. Application of traditional agency prin- ciples does not foreclose employers from vicarious liabil- ity in the context of quid pro quo sexual harassment claims. An employer may still be liable for and act of quid pro quo sexual harassment that was committed within scope of employment or for a foreseeable act that was committed outside the scope of employment.60 Thus, liability may certainly if attach there is sufficient cause to impute employee’s agent’s acts to the employer because the employer knew of the employee’s propensity to commit the type of act involved.

The Champion Court compounded its erroneous holding by relying on federal caselaw.61 Unlike the federal civil rights act, the Michigan CRA specifically reflected, language, in its separation government is to mandate the politics from governmental in order neutrality to maintain elections, preserve processes, fair prevent democratic taxpayer funds from being activities.”) partisan added). political used to subsidize (emphasis Corp, See Danse 466 Mich at 181-182. 60Application respondeat superior traditional principles also does legal recourse, foreclose other avenues of including pursuit of direct liability against criminal and perpetrator. civil Champion, 8, See citing 450 Mich at 712 n Karibian v Columbia (CA Univ, 2, 1994), Inc, 14 F3d Signal, v Allied 970 F2d Kauffman (CA 6, 1992), (CA Homes, 7, 1985), Horn v Duke Craig 755 F2d 599 (CA Snacks, Inc, 3, 1983), v Y & Y Dole, 721 F2d 77 Katz v 709 F2d 251 (CA 4, 1983), (CA City Dundee, 11, 1982), Henson v 682 F2d 897 (CA 1979). America, Miller v Bank 600 F2d 211 1MICH Opinion the Court principles. agency common-law Michigan

incorporates federal civil applying federal courts Hence, unlike CRA Michigan act, applying courts Michigan prin- agency this state’s common-law are bound bound, their are not so federal courts Because ciples. given inapposite is often reasoning this context For our decisions. guide the CRA must language choice to incor- reason, Michigan Legislature’s this forecloses reli- into the CRA porate agency principles whether a determining on federal cases when ance the CRA.62 vicariously liable under be defendant will to both contrary Champion note that Finally, we this Champion, caselaw. Before subsequent and prior could be vicari- held that an Court had never criminal acts of for the unforeseeable ously liable to limit attempted Subsequent caselaw employees. merely dem- but that caselaw applicability, Champion's rec- validity. Chambers dubious Champion's onstrated agency common-law incorporates that the CRA ognized aided-by- made it clear that Zsigo principles, a of this state’s common part is not agency exception of Chambers and Thus, contrary to the mandates law. excep- of an requires application Zsigo, Champion quid pro in the context of respondeat superior tion of this part claims that is not quo sexual harassment requires common law.63Because state’s caselaw contrary prior subsequent result 62 Chambers, at 315-316. Agency chose Significantly, Third Restatement of the drafters of the recognizing thereby implicitly aided-by-agency exception, to exclude the accepted generally exception with common-law is not consistent that the authority dissenting justices agency principles. dismiss While aided-by-agency exception they ignore unpersuasive, fact that the agency.” general at “widely accepted exception rules of Post to the not a exception Only jurisdictions adopted wholesale into have a few 43-44. And, law, applies typical as we tort claim. such that it their common

Opinion of the Court contrary CRA, to the of language it is clear Champion is not Michigan Rather, consistent with law. when in considered the context of our jurisprudence, Champion stands as an isolated aberration relies not on the plain act, of the language purely policy but on considerations.

E. STARE DECISIS Our does end inquiry because simply we have concluded that Champion Rather, was wrongly decided. we must determine whether overruling Champion the most of appropriate course action. This is a decision that we do not lightly undertake and will make “only. . . after careful of consideration the effect of stare However, decisis.”64 we are also mindful that we are under no obligation let an stand erroneous in the decision interest of stability continuity.65 and We consider a multifactored test determining when whether to overrule precedent. The first question is whether the decision at issue wrongly decided.66 Having already addressed this question, we must now consider whether Champion ‘practical “defies workabil- ” ity’ and “whether reliance interests would work ,”67 undue hardship . . . These weigh factors favor overruling Champion.

First, despite our attempt in Zsigo Champion to limit involving claims quid pro quo sexual harassment explained, Michigan have explicitly rejected exception Zsigo because it principles is inconsistent Michigan with fundamental common law. 64 Haynie Dep’t Police, 302, 314; State 468 Mich 664 129 NW2d (2003). Detroit, (2000). 439, 464; Robinson v NW2d 66Id. 67Id. Mich i Opinion of the Court matter demon- present

affecting employment, in this Champion to limit it is not possible strates that can be drawn be- distinction meaningful No respect. in the present and those the facts tween in Champion the supervisor Both matter. Johnson positions their rapes through were able to commit cases, employ- In their victims. both authority over their discretionary control over victims ers’ had agents in Champion supervisor of their positions: virtue her order to dictate the victim’s schedule was able Johnson had building, parts certain move freedom and to authority plaintiffs to constrain jail. Certainly factual distinc- parts her to certain case. present exist between tions in employ- not supervisor plaintiffs Johnson context, have made plaintiff and he could not ment worked, unlike the where he building come to not in Yet dissimilarities do supervisor Champion. these not from the that Johnson would have been detract fact for his position able assault but to commit supervisor much like the authority plaintiff, over Champion. mani-

Indeed, Champion’s impact, distortive which is circumvent tradi- plaintiff attempts a to fested when at- or otherwise respondeat superior tional rules immunity by governmental framing avoid to tempts CRA, in lower deci- apparent claim under the is court Champi- further of this state and demonstrates sions way is there is no to unworkability.68 on’s This because Appeals example, case is one see Court of decision The App 681, plaintiffs attempt Zsigo Harried, to hold Mich as is the vicariously employee’s for its unforeseeable criminal liable 673, 690-691; App Witherspoon, Diamond Mich act. also See (2005) liability rejecting (presuming strict vicarious NW2d 770 quo immunity quid pro governmental sexual harass in the context of a subjected police when a officer detained ment case under CRA Opinion of the Court effectively limit the rule announced in Champion, despite prior our to do attempt reasoning so. on which Champion justified holding only to applicable every quid pro quo sexual harassment case in which a plaintiff pursues theory liability regardless vicarious — of whether the discriminatory employ- conduct affected ment, services, public or accommodations —but also to intentional tort claims in a plaintiff which seeks hold an employer vicariously liable. Champion, Under it will al- ways be “foreseeable” that employees who possess some authority virtue of the employment relationship will abuse the power they with which been have vested when they commit, here, act against criminal another in the workplace.

Second, with regard interests, reliance we cannot conclude that Champion embedded, “has become so so accepted, fundamental, so everyone’s expectations” overruling it upset any would real-world reliance interests.69 For reliance, knowledge there to be of a decision “must be sort that causes a person entity to attempt conform his conduct to a certain norm before the triggering event.”70 There is no indica- tion that plaintiff or defendants on Champion by relied conforming their conduct before the event— underlying and, given the nature of the rule in it Champion, unclear form what such reliance could have taken. It be illogical would to conclude that defendants condoned the sexual assault because Champion, given that Champion imposed would have vicarious liability the unforeseeable criminal acts defendants’ agent. Nor conduct), Genesys Sys, individuals to sexual and Salinas v Health 263 (2004) App plaintiffs (rejecting attempt Mich 688 112 NW2d the to vicariously hold the liable tort under for an act). unforeseeable criminal 69Robinson, 462 Mich at 466. 70Id. at 467. Mich 1 490

28 Opinion the Court her altered suggest plaintiff to reasonable would it be to see simply fail Champion. We in rebanee on conduct could assert way plaintiff defendants any possible Champion. rebanee on involves statu- decision at issue

Further, when the of the knowledge of society’s indicator tory law, the best on, lan- law, reasonably relies is society and what have explained, As we the statute itself.71 guage of CRA eviscerates in the language nothing or otherwise respondeat superior rules of common-law into the statute. engrafts aided-by-agency exception Champion would a decision to overrule Accordingly, real-world dislocations. any create overruling Champion justification for Finally, further consequences that practical can be found in adverse to extending present from the case would result “it is difficult explained Zsigo, matter. As we [aided-by-agency] an instance when the conceive of an employee, because exception apply would not relationship or her with employment virtue of his accomplishing’ ‘aided in employer[,] always is ap- would all-encompassing exception tort.”72 Such public-service Consequently, cases.73 ply equally effec- aided-by-agency exception would adoption 71 discussing reliance, (stating when See that “it well to recall in id. is statutory..., dealing it to the area of the law that with an guidance in a citizen first looks for words of the statute itself that actions”). directing his 72Zsigo, Mich at 226. contrary adopt Zsigo, to that of In this Court noted that a rule “applies a broad law mean that the rule traditional common would grant unique range employees to and duties them access whose others, officers,” authority “could ... correctional which over such as ” virtually scope employment Zsigo, general ‘eviscerate[] rule.’ ¶ 59; 476, 505; Forrest, 230, quoting at Poe 2004 VT Vt Mich (some omitted; (2004) dissenting) quotation (Skoglund, J., marks A2d 48 emphasis added; original). alteration in op Opinion the Court of tively respondeat superior abolish the doctrine pro quo affecting public civil cases quid services liability and would result in the on imposition strict In governmental short, entities. the exception would Contrary swallow the rule. to the current requirements imposing liability, for vicarious if the were exception a adopted, plaintiff merely would have to allege quid pro or quo harassment and show that he she victim an particular intentional act in a employee custodial environment. Providers of public services would be liable for the unforeseeable criminal acts of employees their as long as claimants could couch their CRA, claims under the dangers and the such a broad seemingly basis for unlimited strict liability, discussed earlier in this opinion, would become realities. a Such standard would a range to wide apply public-service providers employees whose interact regularly with re- of public services, teachers, cipients including correc- probation officers, tional and physicians, nurses, and firefighters, name a public few.74Because entities cannot increase prices or alter otherwise business prac- tices to absorb the increased risk of a liability, govern- agency’s mental only option may funding be to cut curtail public beneficial programs. In justifying our decision to basis, overrule on this we not do pleading plaintiff Artful governmental would also allow to avoid immunity governmental liability (GTLA), under tort act MCL seq. district, example, vicariously 691.1401 et A school could be liable tort for a teacher’s sexual of a molestation student because However, styled GTLA bar plaintiff would the claim. if the its claim as a action, vicariously theory CRA the school district could be liable under a quid pro quo public affecting sexual harassment services. Plaintiffs preferred approach, public-service providers under which would be strictly precisely they liable for the same conduct for which would immune, typically inherently Legislature’s be inconsistent with the Legislature result, intent. If the had intended such it should have clearly abrogated purposes the common-law rule for of the CRA. Opinion of the Court plaintiff of the crime heinous nature

downplay the defen- However, liability permitting against suffered. impose would too circumstances dants under these on providers and public-service on great burden contrary to the clearly which is society general, intent.75 Legislature’s wrongly Champion conclude that was therefore

We not interfere with overruling and that it would decided Champion overrule reliance interests. We legitimate Michigan longstanding is inconsistent with because it providers, including public-service law employers, harass- pro quo liable for vicariously quid are not acts of criminal ment on the basis of the unforeseeable employees.76 their

E RESPONSE TO THE DISSENTS justices dissenting regarding with the disagree We be correctly decided and should Champion whether was justices the concede Although dissenting overruled. adhere to unprecedented, they was Champion conclude that the to reasoning exception to Champion’s necessary give is agency principles common-law Legis- and the purpose effect to the broad CRA dissenting justices’ it. Yet the enacting lature’s intent in correctly decided for this Champion conclusion that was flaws inherent the fundamental ignores reason like dissenting Cham- Notably, opinions, Champion. from the CRA to any language support do not cite pion, 557-558, Brown, page at at 15 of this discussion See opinion. vicariously cannot be held Because we have decided that defendants CRA, we need address criminal act under the not liable for Johnson’s jail Wayne County arguments that the defendants’ alternative meaning “public that the circuit court within the of the CRA or service” complaint. permitted plaintiff improperly amend Opinion of the Court view, even though language statute’s the best of the Legislature’s Instead, indicator intent. the dis- senting justices rely on caselaw the CRA as describing “remedial,” just did, as Champion for the proposition “the exception agency to common-law principles established in Champion necessary [is] give effect the broad . purpose CRA.. .”77Apparently, this “necessity” concern, is based on dissenting justices’ was concern in Champion, that without exception, discriminatory would not be conduct eradi- cated and the purpose of CRA would be defeated.78 fear vastly This overstates the effect of our decision because, as have explained, employers we and public- providers service will still be vicariously liable for sexual harassment under and longstanding traditional principles respondeat In superior. short, the dissent- ing justices’ reliance on itself propo- sition that Champion correctly decided lacks merit already reasons we have explained.79 the the unforeseeable intentional tort. generally, law hold a it analysis” explained failure to rule of law” Champion our support other (Hathaway, 79Indeed, 78 77 was dissenting justices ignore CRA and is decision honors both our common-lawtradition and the Post The supports correctly dissent cites no governmental entity of her accusation that our decision is somehow dissenting at recognize relies was a unanimous decision at J., ^[38] the or “results in the length their conclusion other than thereby effectively dissenting). decided that its consistent with (Cavanagh, only dissenting justices justices’ plaintiffs decision not is a on or specific language Champion, post Rather, J., liable concern the claim for dissenting). that dismantling admit reasoning for an plain as we have statute’s decided concede in that language what employee’s this supported Michigan’s and Likewise, at Champion. Simply is correct no of the that regard purpose. it explained 42 n provides years ago other really the “bulk of criminal action and in [CRA].” 7, is related to their the author of the today. binding Michigan is: an “contrary which we have at CRA, no does not mean great length, Not language analysis attempt Post at 60 they because only [their] to the also law do in of l Opinion the of Court their erroneous justices compound dissenting

The opinions interpreting subsequent wrongly reasoning by was cor- that confirming Champion this Court that Cham- confirming explicitly decided and as rectly aided- “very similar adopted exception pion dissenting to the Contrary exception.”80 by-agency Cham- expressly did not confirm justices’ view, Zsigo expressly did not in and Chambers pion regard, this Michigan’s part that valid Champion hold dissenting justices law, both of which the common ac- Further, dissenting justices although suggest.81 incorporates common-law knowledge that the CRA explicit then they ignore agency principles, namely this Court Zsigo, in unambiguous holding aided-by-agency exception, recognized has never rule, as of this state’s common law. part a similar holding, dissenting Zsigo’s unambiguous Despite should be justices Champion to declare that continue cases because the ex- in applied sexual discrimination Zsigo tailored.”82 The “narrowly major- can ception be had exception such rejected any notion ity changes exposed the in ignore subsequent in the law that have flaws opinion. reasoning. Champion’s pages 24-25 note 63 this See at Post 41. fact, contrary dissenting justices’ position, Zsigo did In to the Zsigo Champion. The primary Court did undermine the rationale Champion,” entirely “dispatch post at exception created in 41 n Zsigo not a civil case. because was dissenting justices’ position that Post at 42. The dissenting correctly primarily opinion on the decided on this basis relies justices binding precedent. dissenting Zsigo, in this is not which opinion criticism, asserting dissenting disregard case workability. Yet, Champion’s Zsigo “example” at 42 n 7. is an Post because, Zsigo any persuasive like lacks value rationale of the dissent here, Zsigo repeatedly adopting advocated dissent the main dissent exception Supreme deci aided-by-agency and the Vermont Court’s rejected already explicitly both as inconsis in Doe. Court has sion This Michigan law. tent with Hamed Opinion of the Court boundaries, which that Zsigo demonstrates does not support Champion Thus, in this regard. it is the dis- senting justices aggressively expand who seek the law state, while holding merely this our reaffirms applies traditional always common-law rules have governed in Michigan. surprisingly, using

Not the faulty premise Cham- pion’s reasoning correct, the dissenting justices advo- cate straightforward application of This Champion. approach ignores an irreconcilable tension in law. our Although Champion and this case similarly are framed civil cases involving allegations of quid quo pro harassment, the conflicting dispositions in the courts below demonstrate the tension between mul- tiple precedents of Court at issue this case. The circuit court below relied on Zsigo grant summary disposition defendants, recognizing that Zsigo estab- very lished “a clear bright line rule” that an not liable when an employee unforeseeably acts outside of his scope or her employment, was the as case here. The Court of Appeals reversed, relying instead on Cham- pion, which had never been applied outside the employ- context, ment proposition that a public-service provider may be vicariously hable when its employee uses his or “authority her over subordinate as a means of subjecting that subordinate to con- abusive unlawful Thus, case, duct.” in this we presented are with conflicting those of principles: the traditional common-law rule have guided Michigan law for century more than a as articulated and those Zsigo underlying the rule which Champion, inexplicably departed from the require- ments that have been always held necessary impose respondeat superior liability. The existence of these con- flicting precedents and principles out for clarity cries our compels decision to overrule Champion. 490 Mich 1

34 Opinion Court that the main dissent’s view Further, disagree with we overruling support do not of stare decisis principles a stare decisis test The applies main dissent Champion. is not the law of that Magna Corp83 forth in Petersen v set adopt did not of this Court majority Because a state. rule agreed to the majority justices a have test, that Detroit,84the test Robinson in Robinson v articulated overruling Champion analysis. Nevertheless, governs this result, test is applied. which right regardless is stare decisis error in the main dissent’s The most basic is why analysis misunderstanding is the aided-by-agency posits unworkable. dissent only it “narrowly applies tailored” because exception is a in com- relationship supervisor when aided agency an dissent, the to the wrongful According act.85 mitting a relationship agency does not when an exception apply an to accom- supervisor opportunity a merely provided a nothing This more than plish wrong. interpretation nature capricious exercise that demonstrates semantic relationship always An will employment of Champion: commit provide supervisory employee opportunity become an opportunity but when does wrong, context, Similarly, in a citizen’s public-services “aid”? administering public ser- employee interaction with an those always during the administration of vices will arise his her au- exercising employee services while “aided” and employees are thority; public-service when exercising their author- they when are not “aided” while no demarcation.86 Continued ity? meaningful There is (2009) 300, 313-320; Magna Corp, 484 Mich 773 NW2d 564 Petersen v C.J.). (opinion by Marilyn Kelly, 84 Robinson, Mich 439. J., dissenting). at 42-43 Post (CAVANAGH, application Supreme of the Vermont The main dissent counters narrowly ap- three-pronged "a tailored test would amount Court’s Opinion op the Court adherence to Champion require jurors would judges to determine liability according vicarious to their subjective reason, whims. For this same the dissent’s view that Champion provides “important guidance to trial courts” is simply wrong.87

Finally, we find unpersuasive the main dissent’s reliance on jurisdictions decisions from other that have applied aided-by-agency in the exception context of their If liability civil laws. imposed is to be under Michigan law on an employer for sexual harassment by employee, committed that liability must be man- by dated the Michigan CRA.88 The aided-by-agency exception the context of civil rights cases is not so well accepted “nearly unanimous” as the main dissent appears claim.89Most states have not recog- nized aided-by-agency exception civil cases and, at least with to the respect jurisprudence of this Court, application of the aided-by-agency exception an remains aberration.

IV CONCLUSION Michigan law has never imposed liability on an for the unforeseeable criminal actions of its proach applying aided-by-agency exception . ...” Post at 48. Yet already this test suffers from the same deficiencies we have described it no “opportunity” because makes valid distinction between a mere an “aid.” 87 Post at 48-49. The main dissent also misconstrues our citation of Diamond and Salinas. Champion’s Those cases do not demonstrate Rather, workability. they examples pleading” are of “artful in which the plaintiffs sought respondeat superior to circumvent traditional rules of by framing opinion. their claims under the CRA. See note 74 of this 88 Notably, ignores the main dissent the mandate of Chambers language Michigan paramount importance consider CRA of interpreting Michigan opposed any guidance when CRA as may provide. Chambers, federal caselaw 463 Mich at 313-314. omitted). (quotation Post at 49 marks and citation Opinion Dissenting Cavanagh, J. Michigan Nor has except Champion. employees, based on an incorporated exception law common we con- aided-by-agency theory liability. Accordingly, may not be held public clude that a of a service provider sexual harassment vicariously quid pro quo liable services on the basis unforeseeable affecting public committed outside the employee criminal acts that its Champion Because is inconsis- scope employment. common and holding Michigan’s tent with our and with law, overrule We reverse the statutory Champion. we Court of and reinstate the circuit Appeals’ judgment summary order in favor of granting disposition court’s defendants. ZAHRA,

YOUNG,C.J., JJ., and MARKMANand concurred Mary Kelly, Beth with J.

CAVANAGH, majori- J. I dissent from the (dissenting). ty’s decision to overrule Nation Wide (1996), Security, Inc, 450 Mich 545 NW2d 596 As the majority unanimous decision of this Court.1 admits, there are factual flatly significant no differences Accordingly, between this case and because Champion. correctly pur- was decided and reflects the pose legislative Michigan Rights intent of the Civil (CRA), I seq., apply Act MCL 37.2101 et would Cham- affirm pion judgment to this case and the the Court of Appeals.

I. SUMMARY OF CHAMPION Champion, plaintiff’s supervisor job In the offered favors, and when the security exchange sexual refused, supervisor authority used his plaintiff concurring justices joined analysis Champion, See full. (Boyle, J., concurring). Mich at 714 Hamed Opinion by Dissenting Cavanagh, J. portion plaintiff in a remote of the build- isolate ing they raped Court where worked and her.2 This 37.2103(i), explained party pursu- a that under MCL employ- ing quid pro quo a claim in an harassment “(1) subject ment context that she must establish any types of the of unwelcome sexual conduct or (2) statute, communication described in the that employer’s agent her or the used her sub- rejection proscribed a mission to conduct as affecting employment.” factor in a decision her Champion, 450 Mich at 708-709. Like defendants in Champion argued case, this plaintiff that defendant satisfy prong quid could not the second of a pro quo sexual harassment claim because the at- acting scope authority tacker was outside the of his raped plaintiff and, result, when he as a was not acting agent. defendant’s This Court unani- mously rejected argument, stating that “when employer gives supervisors authority an certain employees, accept responsibil- over other it must also ity remedy supervisors’ the harm caused authority.” unlawful exercise Id. at 712. We employer rarely further noted that “an authorizes an agent improp- to break the law or otherwise behave erly; yet, liability frequently imputed em- ployer for such conduct.” Id. at 712 n 7. concluding plaintiff pursue quid

In that the could pro quo against defendant, claim harassment Champion explained contrary that a result would “cre- loophole ate an in the enormous statute” that “would 2 Although many opinions address in the this issue context work place supervisor-subordinate relationships, opinions applicable those are analysis largely recognition to this case because the rooted in the subordinate, just supervisor authority wields substantial over a aas acting law, authority deputy, significant sheriffs under color of holds over jail inmate.

38 Mich i 490 Dissenting Opinion Cavanagh, J. purpose underlying defeat the remedial this state’s civil lead to a rights statute and would construction that is the that reme- inconsistent with well-established rule liberally 713, to be Id. at dial statutes are construed.” Co, 26, 34; citing Kelsey-Hayes Eide v 431 Mich (1988). NW2d

II. CHAMPIONWAS CORRECTLY DECIDED majority contrary claims that Champion “was CRA,” 22, and, thus, of the ante at plain language wrongly Although generally was decided. I agree with majority incorporated the CRA the common law of agency, exception agency to common-law in principles established necessary give purpose effect to the broad of the CRA and the Legislature’s intent in it. See enacting City Henson v of (CA 1982) Dundee, 11, 682 F2d n 21 (recog- nizing “[t]he common rules respondeat law superior always will not be appropriate suit broad statutes).3 purposes” remedial of civil rights Further- more, this Court previously has considered the purpose of the CRA as a discerning method of the legislative intent behind the act. See v Dep’t Treasury, Victorson (1992). 131, 143-144; 439 Mich Indeed, 482 NW2d 685 majority recognizes even the that a statute’s purpose a relevant consideration in determining legislative intent. 22 n See ante at 58. recognized purpose This Court has aof statute is a relevant applying array See, consideration when in statute a broad of cases. (2010) 468, 477; Adair v e.g., Michigan, (stating 486 Mich 785 NW2d 119 primary statutory that “the and fundamental rule of constitutional or purpose duty construction is that the Court’s is to ascertain the expressed legislative provision intent the constitutional added). question”) Indeed, (emphasis majority members recently purpose Michigan Campaign case found the Finance Act (On Secretary worthy lengthy consideration inMich Ed Ass’n v State (2011).

Rehearing), 801 NW2d 35 Dissenting Opinion by Cavanagh, J.

The CRA that “freedom recognizes from discrimination Trettco, Inc, because of sex right.” is civil Chambers v (2000). 297, 309; Thus, 463 Mich 614 NW2d 910 the CRA is intended to in “remedy[] employ discrimination ment, accommodations, services, ... public and educa Eide, 31; see, also, tional institutions.” 431 Mich at Miller v A Corp, 355, 363; C Muer 420 Mich 362 NW2d 650 (1984) (“The Michigan civil act is aimed at the prejudices against and biases borne persons because of their in a membership certain class... and seeks to eliminate the effects of demeaning offensive or stereo biases.”) types, prejudices, and (quotation marks and omitted).4 Furthermore, citations majority as the ac the CRA knowledges, statute, is a remedial and “remedial liberally Eide, statutes are to be construed....” 431 Mich at 34.

In light of understanding this purpose CRA’s and the Legislature’s intent I enacting CRA, believe that Champion properly advanced legisla- by tive intent ensuring clearly that discriminatory conduct is eradicated. The majority’s interpretation, however, plaintiff bars from pursuing a claim in fur- therance of goal ignores this and “the legislative intent employers, that not the victims harassment, of sexual bear the remedying costs of and eradicating discrimina- tion.” Champion, 450 Mich at majority 714. The erro- neously discards Champion’s interpretation leg- 4 majority’s suggestion language that of the CRA does not support interpretation remarkable, purpose given this act’s opinions Eide, Miller, many similarly Court’s other cases have purpose. See, e.g., Everett, 368, summarized the CRA’s Radtke v (1993) (quoting concluding NW2d 155 “[t]he CRA and Rights prejudices Civil against Act is aimed at the and biases borne persons membership class, because of their in a certain and seeks to demeaning stereotypes, eliminate the prejudices, effects of offensive or biases”) (quotation omitted); see, also, marks and citations MCL 37.2102, 37.2202, MCL and MCL 37.2302. 490 Mich l Dissenting Opinion Cavanagh, J. policy on “purely intent based

islative considerations,” ignores the fact that the ante at Champion discussed were policy considerations enactment of the Legislature’s motivation behind the from result, seeking employers “in CRA..5As a shield the burden of liability, majority places instead authority corresponding and the abuse preventing Hurley it.” people powerless prevent Zsigo harm on (2006) Ctr, 215, 236; Mich Med NW2d J., dissenting). (Marilyn Kelly, Moreover, Chambers to majority’s reliance on wrongly support its conclusion misplaced. fact, expressly decided In Chambers ac- holding part as a valid knowledged Champion's pro related to sexual Michigan’s quid quo common law Chambers, under the CRA. See 463 Mich at harassment 5 Ironically, majority policy in this case also relies on consider ations, claiming that creates an unfair “societal burden” and 14-15, employers. an unbearable financial burden on Ante at 28-29. It is majority opinion appropriate rely policy it odd that the finds on these simultaneously rejecting Champion considerations while for its consid Setting policy eration of the concerns reflected in the CRA. that contra aside, however, telling diction what is even more is the fact legislative Champion’s policy considerations were rooted in the intent Indeed, purpose expressly and of the CRA. the CRA’s title states that the “prohibit discriminatory practices, policies, and CRA is intended to majority opinion customs ....” Title of 1976 PA 453. The in this case exactly opposite policy does in furtherance of considerations that do appear Legislature in the CRA. did the indicate that the Nowhere employers “societal or the financial burden on is a valid burden” fact, interpreting applying the act. In the CRA consideration when and governmental employers Legislature indicates that intended that harassment, it, eliminating by bear the cost of sexual not avoid as shown agents specific political inclusion state and subdivisions and their (h) 37.2103(g) employers as covered the act. MCL MCL 37.2201(a); see, also, Detroit, 186, 195; Mack v 649 NW2d 47 (2002) Legislature (noting that there in which “the has allowed are areas stand, against government Rights specific actions such as the Civil Act”). Hamed Dissenting Opinion by Cavanagh, J. (“Vicarious liability exists in the quid pro case of quo harassment quid pro quo harasser, because the by defini- tion, uses the power of the to alter the terms and conditions of employment. Champion, supra”).

Similarly, the majority erroneously interprets Zsigo supporting its conclusion that Champion misinter- preted the CRA. Zsigo majority expressly recog- nized that the Champion Court, many courts, like other applied an exception quid pro quo sexual harassment claims that very similar to the aided-by-agency excep- tion. Mich Zsigo, at 227 n (listing state and federal opinions adopting the aided-by-agency excep- cases). tion in sexual harassment While I continue to adhere to the Zsigo dissent’s conclusion narrowly that a tailored interpretation of the aided-by-agency exception should be applied outside the context of sexual harass- cases, ment that disagreement with Zsigo is of no case, moment given the case before us is obviously a quid pro quo sexual harassment claim. Thus, under Chambers and even under the majority opinion Zsigo, Champion’s exception applies to this case.6 6 Although majority Zsigo aided-by- is correct that held that the agency exception part Michigan’s general law, is not a common majority’s interpretation efforts counter this dissent’s of Chambers Zsigo unavailing opinions are recognized because both of those Champion’s exception applied quid pro quo the context cases, majority acknowledges. 21; see, also, harassment as the See ante at Chambers, (citing Champion premise 463 Mich at 311 for the that liability quid quo “[v]icarious pro exists in the case of harassment quid harasser, pro quo by definition, because the power uses the of the employer employment”), to alter the Zsigo, terms and conditions of and (recognizing Champion applies 475 Mich at 224 n 19 that “in the context 37.2103G)”). quid pro quo of Indeed, sexual harassment under MCL majority necessary fact expressly that it Champion finds overrule

today further Zsigo dispatch demonstrates that Chambers and did not exception Champion. majority’s created in accept The refusal to 490 Mich by Dissenting Opinion Cavanagh, J. concern majority’s to the

Finally, contrary gen- that swallows exception an created Champion “does not exception rules, Champion’s agency eral employers supervi- whose liability extend unlimited at 713. A Champion, subordinates.” rape sors is not relationship supervisor-subordinate mere when “the Rather, only an is liable enough. through the exercise rape supervisor accomplishes at 713-714 the victim.” Id. power over supervisory his added). explained, ap- Champion As (emphasis intent legislative . . with the “fully is consistent. proach harassment, of sexual not the victims employers, discrimina- remedying eradicating bear the costs of tion.” Id. at 714. explained,

Furthermore, Zsigo aptly as the dissent narrowly a tailored entirely adopt it possible in order aided-by-agency exception interpretation Zsigo, 475 swallowing general agency to avoid rules. ).7 (MARILYNKELLY, dissenting J. After Mich at 239-243 part Michigan’s Champion common law for the last fact that has been Rather, thoroughly years not make its view so. as this dissent does precedent explains, Champion longstanding, of this Court unanimous legislative purpose the CRA intent behind that is consistent with the approach by Supreme taken the United States Court and with the Accordingly, many jurisdictions rights cases. other in similar civil majority “aggressively expand is mistaken when it claims that I seek to merely “reaffirm!] it seeks to ... common-law the law of this state” while Rather, always governed Michigan.” Ante at 33. rules that have Court, by deep-rooted opinion of this demonstrated its need to overrule change majority major in the law. it is the that embarks on an ill-advised only rely nonbinding majority erroneously implies that I on support my dissenting opinions that Cham of this Court to conclusion Zsigo correctly Although pion I think that the dissent was decided. narrow, example interpretation the aided- provides workable my my analysis support by-agency exception, conclusion the bulk of reasoning correctly from decided rests on the Champion’s opinion, was not and unanimous which well-established Zsigo. majority opinions in Chambers and either of the overruled relying disparages my analysis Surprisingly, majority on Cham- Hamed 43 v Dissenting by Opinion Cavanagh, J. reviewing jurisdictions’ various other efforts to balance scope aided-by-agency exception, Zsigo of the concluded that an from the Vermont opinion dissent represented compelling ap Court the most Supreme ¶ Forrest, 37, 21; 476; proach. See Doe v 2004 VT 176 Vt Indus, (2004), A2d 48 Inc v citing Burlington 853 Ellerth, 742; 2257; 118 S 141 L Ed 2d 633 US Ct (1998), Raton, 775; Faragher Boca US 118 S (1998). 2275; 141 L Ed 2d explained Ct Doe that Faragher, properly under order to the aided- apply by-agency a court should three exception, consider (1) “the opportunity by factors: for contact created (2) relationship,” powerlessness “the employee the perpetrator prevent resist the unwanted con (3) tact,” and “the opportunity prevent guard ¶ Doe, against the conduct.” VT 37 at 176 Vt at Thus, 491. in response questions to the posed by majority regarding when an held employer will be liable employee’s conduct, 34, for an ante see at an only would be liable for quid pro quo harassment out arising employee’s conduct if the three factors met, or, it, were as Champion put when “the supervisor accomplishes the rape through the exercise super his visory power over the victim.” Champion, 450 Mich at added). 713-714 (emphasis Accordingly, can Champion be applied without imposing liability boundless the majority fears.

In summary, Champion properly legis- relied on the lative intent and purpose behind the CRA when it adopted widely accepted exception to the general rules piort’s reasoning, quite relying see ante at 31 n but I am certain that longstanding, precedent highest on unanimous from this state’s court is well-accepted legal analysis. Furthermore, disagree method of I with majority’s Champion only “binding Michigan claim that is the law” my supporting Rather, n conclusion. Ante at 31 79. I believe that the CRA supports my analysis. itself also l Dissenting Opinion Cavanagh, J. And has not chosen agency. given Legislature during amend the CRA the 15 applicable provisions decided, I think that it is fair

years since believes that Cham- Legislature to conclude pion accurately reflected the intent behind legislative CRA, than representing dangerous depar- rather Devillers it, See, the majority e.g., ture from as claims. Ass’n, v Auto Club Ins 562, 613-614; 473 Mich 702 (2005) (CAVANAGH,J., dissenting) (explaining NW2d 539 significance Legislature’s of the decision not it). modify interpreted a statute after this Court has “ every Because it is ‘the nature of the common law that appellate represents decision of the development ” (MARILYN Zsigo, law,’ at 241 n 11 common 475 Mich (citation KELLY,J., omitted), Champion has dissenting) part Michigan’s been valid common law for the last years 15 and should be in applied this case.

III. STARE DECISIS In light preceding analysis, of the it clear is Champion Legislature’s furthers intent when it result, enacted Champion correctly the CRA. As a was decided and no further stare decisis consideration is However, needed. accepting majority’s faulty even that Champion wrongly decided, conclusion I do agree its decision to overrule Champion supported by stare decisis principles. Supreme United States Court has explained stare “promotes evenhanded, doctrine of decisis

predictable, and consistent development legal prin- decisions, ciples, judicial fosters reliance on and contrib- actual and perceived integrity judicial utes Tennessee, 808, 827; 111 process.” Payne US S Ct (1991). 2597; L result, Ed 2d 720 As a “a stare analysis always begin decisis should with the presump- Opinion by Dissenting Cavanagh, J. upholding precedent tion that involved is the pre- ferred course of action.” Petersen v Magna Corp, (2009) 300, 317; Mich (opinion by NW2d 564 C.J.). Thus, “overturning precedent MARILYN Kelly, requires more than a mere belief that a case was decided,” Carrier, wrongly McCormick v (2010), 795 NW2d 517 and the in presumption favor of upholding precedent “should be retained until effectively rebutted the conclusion that a compelling Petersen, justification precedent,” exists to overturn the C.J.).8 484 Mich at 317 (opinion by MARILYN KELLY, weigh Several of the criteria discussed in Petersen particularly heavily in favor of upholding Champion (1) overruling rather than it: Champion provided (2) rule, and workable practical Champion has not been robbed of significant application justification because it remains a highly significant guidepost and relevant (3) law, the area of civil rights jurisdictions other have similar to adopted exceptions the one Champion, (4) overruling likely to result serious prejudicial Petersen, detriment to interests. See public 484 Mich at 320.9 8 Petersen, provided In then Chief Justice a nonexhaus Marilyn Kelly engages tive list of criteria for consideration when a court in a stare analysis, single determinative, given decisis hut no criterion is and a only Petersen, criterion need be evaluated if relevant. 484 Mich at 320. majority’s implication my analysis The that stare decisis is invalid apply misplaced, given simply because I Petersen is that Petersen’s test expands Detroit, 439, 464; on the test from Robinson v 462 Mich 613 (2000). respectful precedent, NW2d 307 Further Petersen is more and principles Petersen, thus is more consistent the with of stare decisis. See C.J.). (opinion by 484 Mich at 315-319 Marilyn Kelly, Although recognized Chief Justice also that reliance the rule Kelly on question may engaging be a valid consideration when in a stare decisis analysis, majority’s support extensive reliance on this factor to its view, Champion misplaced. my decision to overrule is In this factor is of importance sexually plans being little in this case because no one on employing persons Thus, harassed or who commit sexual harassment. i Opinion by Dissenting Cavanagh, J. claims, has not

Contrary majority’s Champion unworkable, criterion weighs to be and thus this proved I upholding Champion. Again, although in favor of limit Zsigo majority’s with the decision to disagree raising it to cases Champion by applying only quid pro claims, sexual harassment limitation is quo arguably bright-line of an workable rule re- example Therefore, garding scope Champion’s exception. claim that majority’s Champion unworkable it in unlimited liability because results vicarious “de- attempt our to limit ante at spite Zsigo Champion,” 25, is inexplicable.10

Indeed, Appeals opinions majority the Court of claim, 68, cites in of this at n support ante 26-27 are either irrelevant or demonstrate Champion’s workabil- ity than unworkability. rather its

In Diamond v Mich Witherspoon, App (2005), case, and companion NW2d the Court of Appeals rejected city’s governmental immunity claims of permitted plaintiffs bring quid pro quo city harassment claims under the CRA based on the same police during officer’s sexual conduct traffic stops. anyone there is little reason for to “conform his conduct to certain Champion. (quotation norm” in reliance on Ante at 27 marks and citation omitted). Rather, Champion provided remedy unexpected for an Therefore, unpersuasive majority’s unwelcome event. I find claim Champion may parties be overruled because have not relied on its holding to their detriment. 10Moreover, majority’s plaintiffs claim that allows 74, engage pleading,” “[a]rtful ante at 29 n in order to “avoid governmental immunity by framing CRA,” a claim under the ante at and, See, also, misplaced frankly, offensive. ante at 31 n 78. Plaintiff in case, presumably plaintiffs cases, in other sexual harassment bring infringed actions under the CRAbecause the sexual harassment on rights. By assuming plaintiffs bring their civil CRA claims manipulate judicial system, majority plain the the throws salt these tiffs’ raw wounds. County Wayne Opinion by Dissenting Cavanagh, J. immunity explained governmental of Appeals Court CRA but did not to actions under the is not a defense out of liability arising issues address the vicarious directly little result, Diamond is of Id. at 691. As that case. workability. determining Champion’s import regard, in this majority the cites opinion The other 315; 688 Sys, App Health Genesys Salinas v (2004), actually Champion’s demonstrates NW2d “meaningful demarcation” workability and exhibits the ante at 34. majority desperately that the so seeks.11See case, aided-by- the Appeals applied In that the Court of liability and concluded that vicarious agency exception did the because the attacker’s employer not extend to merely the defendant agency relationship provided with to commit the sexual opportunity the attacker with the Thus, agency relationship assault. did not aid the Salinas, in committing attacker the sexual assault. view, my Mich at 320-321. In Salinas an App provided did not create limitless example Champion how liability, even in the context of sexual quid pro quo harassment claims.12

Finally, holding itself Champion explained . liability employers “does not extend unlimited . ..” 11Moreover, dissent, three-prong as discussed earlier in this test floe, Zsigo established in 2004 VT and favored dissent further “meaningful employer’s liability an establishes demarcation” of an delegated authority. employee’s improper supervisory use of 12 Contrary majority’s claims, exemplified by to the the distinction quite merely employee presented if Salinas is clear: with an by having employer’s opportunity to commit sexual harassment location, employer vicariously permission to be in a certain is not authority employee any employer-delegated hable did not use because opportunity harass to aid in the creation of the to commit sexual if, bar, actively employee But as in and the case at ment. powers delegated by victim a uses the to direct the location or otherwise create circumstances that aid in the commission of harassment, liability may vicarious attach. Dissenting Opinion by Cavanagh, 490 MICH J. Rather, 450 Mich at

Champion, only 713. liable if employee “accomplishes its the rape through the exercise of his supervisory power over the victim.” workable, Id. at 713-714. Such a limitation is eminently as the Appeals Court of in opinion Salinas demon- strated. Additionally, as discussed earlier in opin- ion, Vermont’s court high provided has a clear example narrowly of a tailored approach applying the aided- by-agency exception that would limit scope of an ¶ employer’s liability. Doe, 33; 2004 VT 37 at 176 Vt at see, also, Zsigo, 475 Mich at 239-243 (MARILYN J., dissenting) in (arguing adopting favor of KELLY, test). sum, Noe’s three-factor In has re- mained workable from the time it was first published untimely until its demise at the hands of majority today. Thus, this factor weighs favor of upholding Champion.

Champion also remains a highly significant and relevant guidepost the area of rights law, civil which weighs in favor of it. upholding Champion remains relevant because it properly recognized that failing impose liability on an employer when employees use supervisory powers delegated by the employer to com- mit quid pro quo sexual harassment is a “far too narrow” construction agency principles. Champion, 450 Mich at 712. As Champion explains, “immunizing an employer where it did not authorize the offending conduct would create an loophole enormous in the Therefore, statute.” Id. at 713. Champion correctly concluded that an employer delegates when authority to an employee, the employer accept must the respon- sibility of remedying the harm caused by misuse of that authority, which is “legislative consistent with the in- tent employers, not the victims of sexual harass- ment, bear the costs of remedying and eradicating Thus, Id. at discrimination.” 714. Champion provides Hamed Dissenting Opinion by Cavanagh, J. important guidance to trial courts and ensures that the intent behind the CRA legislative implemented. Ac- be cordingly, Champion upheld.13 should supporting Further the conclusion that stare decisis not support overruling Champion does is the fact that jurisdictions adopted numerous other have the aided- by-agency exception the context of civil cases. Petersen, See 484 Mich at 320 (opinion by MARILYN C.J.). with, To begin Champion stated, appli- Kelly, aided-by-agency exception “nearly cation of the is a view” in the context of quid pro quo unanimous by supervisory harassment committed personnel. Mich at Champion, majority opinion, 712.14The majority also states that because “the drafters of the Third Agency aided-by-agency exception Restatement of have excluded the in 42, Agency,” Champion cluded in the Second Restatement of ante at 19 n no longer preferred approach “ignore” “changeD I in reflects the this law,” with, begin ante at 31-32 n 79. To as the comments to the Third Agency explain, Restatement Third Restatement now addresses purposes likely by accomplishing’ “[t]he intended to be met the ‘aided in imposing liability]... by fully [for basis vicarious a more elaborated treat by apparent authority duty ment of care that a reasonable principal parties through employees owes to third with whom it interacts agents” 3d, Agency, and other elsewhere in the Restatement. 2 Restatement 7.08, b, Thus, p arguably “changeD § comment 228. there has been no in the law,” given Agency that the Third Restatement of addresses same represented by aided-by-agency exception concerns from the Second And, Agency. regardless, preceden Restatement of the Restatement has no and, thus, Champion, hand, tial value is not “the law.” on the other obviously precedential well-established, has substantial value as a unani opinion Accordingly,any support overruling mous of this Court. for Cham majority pion that the derives from the fact that the Third Restatement of Agency longer expressly aided-by-agency exception unper no includes the suasive, when, especially opinion, jurisdictions as noted later in this other apply exception. continue to 14Although majority mistakenly premise me, attributes this see actually Champion ante at it was the unanimous Court that concluded holding majority jurisdictions. do, consistent with the of other I however, agree conclusion, that, Champion’s given explained with opinion, Supreme many footnote 15 of this the United States Court and apply Champion-like exceptions states in the context of civil cases. 490 Mich 1 by Dissenting Opinion Cavanagh, J.

however, dissent err in claims that improper this determination because it is to consider federal caselaw.

Although majority is correct that we are not caselaw, instructive, it can particu- bound federal be larly when the federal and state statutes at issue are Victor, 506, 548; See, e.g., People similar. (1939) (endorsing NW 666 the use of federal caselaw Clause). Michigan’s Due applying Notably, Process States Supreme United Court has concluded that Rights federal Civil Act has a “broad remedial pur- pose[],” Governing Arizona Comm Tax Deferred & Annuity Compensation Norris, Plans v Deferred 1073, 1090; (1983), US 103 S Ct 77 L Ed 2d 1236 to “achieve . . . and equality remove barriers that have in the to favor an operated past group,” identifiable Co, Griggs 424, 429-430; v Duke Power 401 US 91 S Ct (1971). 849; 28 L Ed 2d 158 legislative Given that the purpose intent and behind the CRA and the federal similar, Civil Act are Rights strikingly the United States Supreme Court’s decision to adopt exception to purpose further that in Ellerth and Faragher persua- authority upholding sive favor of Champion. Furthermore, regardless “[o]nly of whether a few jurisdictions adopted have the [aided-by-agency] excep- tion . . . applies wholesale such that it to a tort typical claim,” 63, many ante at 24 n of our sister states did in have —as this Court Champion adopted compa- — rable in the realm exceptions rights of civil sexual harassment in order accomplish goals cases to analo- gous Thus, to those in the CRA.15 it clear that 15 See, e.g., Co, Group 992, Farmers Ins v Clara Santa 11 4th Cal 1016 (1995) 14; 478; Rptr (acknowledging n 47 Cal 2d P2d 906 440 the applicable respondeat superior scope statutes “indicate that and of employment integral principles supposed play fixing are an role in an County Wayne 51 Dissenting by Opinion Cavanagh, J. exception,” ante at “inexplicable is not nonsupervisor employer’s liability supervisor for both and sexual harass applying aided-by-agency exception because “it is reason ment” but the statutory ably purpose underlying comprehensive the clear that the employers to ensure that all maintain their worksites free from scheme is prohibited harassment, regardless foreseeability the sexual lack of enterprises”); Doe, particular harassment in their 2004 VT 37 at such ¶ 39; (adopting aided-by-agency exception, part 176 Vt at 494 the vigilance” by position it creates an “incentive for those in the best because Us, 587, behavior); Toys Inc, prevent harassing Lehmann v ‘R’ 132 NJ (1993) 619; (adopting aided-by-agency-exception A2d the 626 445 “just variety great sexual harassment to ensure results in the cases presented by factual circumstances sexual cases and to harassment [statutory] Co, accomplish purposes”); Ocana v American Furniture (2004) ¶ 552; 2004-NMSC-018, 31; 539, (adopting 135 NM 91 P3d 58 aided-by-agency theory policies “further[s] because it that underlie by redistributing injured tort law” the economic burden from individuals deterring objectionable future); College-Town, conduct in the Div of Interco, 156, Against Discrimination, Inc v Mass Comm 400 Mass (1987) although (noting by 508 NE2d 587 the court was not bound statutes, interpretation analogous federal courts’ federal vicarious liability aided-by-agency exception based on a standard similar to the appropriate purpose in order remain consistent with the statute’s legislative clear intent “that an be liable for discrimination authority”); committed on those whom it confers Frieler v Carlson 2008) Inc, 558, (Minn, Mktg Group, (adopting 751 NW2d 567-570 aided-by-agency exception for sexual harassment cases as consistent with Act); Veco, purposes Rights Rosebrock, of the Minnesota Human Inc 1999) 906, (Alas, (adopting aided-by-agency theory 970 P2d by supervisors “facilitated, serious, because harassment made more apt reported supervisors and is less to be because are understood be (citation employer’s authority”) quotation clothed with the marks 1999) omitted); Utility Dist, 170,176 (Tenn, Parker v Co 2 SW3d Warren (adopting aided-by-agency exception for sexual harassment claims rights under Tennessee’s human act for the reasons stated in Ellerth and Hall, 688, Faragher)-, American Gen & Accident Ins Co v SW3d Life 2002) (Ky, (acknowledging Kentucky aided-by- applies agency exception Kentucky’s to sexual harassment claims under civil consistently Faragher), Henningsen act with Ellerth and v World- (2000) corn, Inc, 828, 843; App (applying 102 Wash 9 P3d 948 case); Stores, aided-by-agency exception in a harassment Wal-Mart (Tex 2000) Itz, (same); App, Inc v SW3d and Edwards v Ohio Care, 619, 627-628; App Institute Cardiac 170 Ohio 3d 868 NE2d 721 (2007) (same). I 490 Mich by Dissenting Opinion Cavanagh, J. 21-22 n (quotation omitted), marks and citation aberration,” “isolated ante at nor it is “hard to square any . . . with notion of agency,” conventional omitted). ante at 21 n 54 and (quotation marks citation Rather, Champion reflects a well-reasoned exception general agency many jurisdic- rules of other tions have in order to ensure that and adopted civil rights human statutes are in achieving successful goal suppressing the evil sexual harassment. the fact that the Finally, majority’s decision case is likely to result serious detriment prejudicial public weighs interests heavily upholding favor Petersen, Champion. See 484 Mich at 320 (opinion by Marilyn C.J.). As at length discussed in this Kelly, opinion, Champion properly recognized significant public interest embodied in the CRA and adopted a exception narrow to traditional agency rules that accu- rately legislative reflects the intent to require employ- ers to bear the of remedying eradicating costs By overruling discrimination. Champion, majority places instead that burden on the very people whom the CRA protect is intended to and who are powerless to prevent the discrimination that the CRA is intended to eliminate. The detriment the public interest created by majority today opinion obvious and weighs heavily in affirming favor of Champion. (1)

In summary, Champion provides practical workable rule in CRA, furtherance of the purpose (2) has not been robbed of significant application or opinions obvious, Champion by represents As these make no means earth-shattering law, rights and, contrary decision in the realm of civil majority’s claim, way Champion in no do I “concede that unprecedented... Rather, accurately Champion .” Ante at 30. because CRA, legislative reflected the intent I behind believe that precedent rests on the of the CRA itself. County Wayne Hamed Dissenting Opinion Cavanagh, J. significant because it remains a justification highly (3) law, in the area of civil guidepost relevant jurisdictions consistent with the caselaw of other (4) aided-by-agency have the adopted exception, detriment to inter- prejudicial public avoids serious Therefore, view, in the of stare my principles ests. not decision to over- support majority’s decisis do rule Champion.

IV THE MAJORITY REACHES THE WRONG RESULT ANY UNDER STANDARD majority’s application The of its own standard is hopelessly majority flawed. The immunizes defendants liability by concluding from in this case that Johnson’s majority acts were Ante at 16. The unforeseeable. that, supports by claiming this conclusion even when in light plaintiff, viewed most favorable to past Johnson’s violent conduct toward members of the public merely propensity and inmates amounted to “a disobey protocol.. to work-related . .”16 Ante at 16. Furthermore, majority concludes that Johnson’s rape plaintiff “highly unpredictable,” was ante at and, essence, “in unpreventable,” ante at 15. majority’s

The characterization Johnson’s conduct one-sided, First, extraordinarily however. Johnson’s clearly “unpreventable” conduct was because defen- dants had a in policy place required a female officer present anytime to be a female inmate in jail. was majority attempts downplay prior Johnson’s violent conduct by emphasizing toward inmates it that was directed at a male inmate who provoked analysis, Although majority’s had Johnson. inconvenient to the it is notable that defendants considered Johnson’s actions “misconduct” reprimanded Therefore, appears him for it. it that defendants did not insignificant consider Johnson’s violent conduct toward inmate as majority would have us believe. l by Dissenting Opinion Cavanagh, J.

Presumably, policy the motivation behind this is at least of conduct that part prevent type Johnson policy committed this case. Defendants violated that night question, on the Johnson which allowed to use him supervisory powers delegated defendants violently Thus, rape plaintiff. rape plaintiff was entirely had defendants preventable, merely followed Furthermore, their the fact that policy. own such a policy strongly implies existed also that defendants like considered conduct Johnson’s foreseeable. There- fore, regardless of rape preventable, whether the defendants’ is one of policy several factors that create a genuine issue of material fact regarding whether foreseeable, Johnson’s conduct was even under majority’s flawed new test.17

Second, concedes, as the majority Johnson’s alleged threatening calls to his landlord and the physical alter- with cation an inmate reveal tendency Johnson’s react violently provoked. when One would think that working as a in a deputy jail would entail frequent provocation by inmates. Accordingly, tendencies such as displayed by Johnson, those in light when viewed most plaintiff, present favorable to a genuine issue of material fact regarding subsequent whether his violent rape an inmate sufficiently was foreseeable to hold defendants vicariously liable. majority

The strains to support weight of its misguided holding by citing majority opinion (2007).18 Brown, 545; Brown v 478 Mich NW2d majority my The bristles at characterization of its test as “new.” See However, given majority Champion, ante at n 32. that the overrules apply case, classifying which it admits would otherwise to this its test as entirely accurate, my judgment. “new” is 18Although my Brown, I continue adhere to dissent in 478 Mich at J., dissenting), majority apply opinion 570-580 I will from (Cavanagh, because, majority’s excessively Brown even under the Brown narrow Dissenting Opinion by Cavanagh, J. Brown, In the attacker had no criminal history and had previously committed any violent acts but had repeatedly made heinous sexual comments to the plain- tiff of which the defendant-employer was aware. Sub- sequently, while with working plaintiff on night shift, the attacker violently raped plaintiff. Brown majority concluded that the defendant’s knowl- edge of the attacker’s comments alone were not suffi- cient to make the subsequent rape foreseeable. Id. at 554-555. The Brown majority chastised the Court of Appeals panel that case for relying on Hersh v Builders, Inc, 189 NW2d 286 Kentfield (1971), to reach the opposite because, conclusion ac- cording to the majority, Brown Hersh distinguish- able on Hersh, its facts. In an employee who had a prior manslaughter conviction violently attacked a client of the defendant-employer. This Court unanimously held that the defendant-employer was liable for its employ- ee’s violent attack on the client because the defendant knew of the employee’s past violent act. Id. at 413.19 The Brown majority seized on this reasoning to con- clude that the defendant in Brown could not be liable employee’s rape the plaintiff because the employee had only engaged in “boorish” sexual com- ments toward the plaintiff but had no history of violent Brown, acts. 478 Mich at 557-562.

Although the Brown majority’s analysis created a dangerous whereby rule “no infirmity of character, shown by speech, [is] sufficient to allow a jury to decide whether, in light of the employee’s conduct, the em- ployer had a duty act,” id. at 576 (CAVANAGH,J., foreseeability, presents standard of genuine this case a issue of material apply fact. And majority because I opinion Brown, the rule from the in majority’s critique dissent, the 32, of the Brown entirely ante at 14 n is irrelevant. 19Justice Hersh, Black concurred in the result. See 385 Mich at 416. 1 56 by Dissenting Opinion Cavanagh, J. case, in this when conduct Johnson’s

dissenting), plaintiff, most favorable light in the viewed fact even of material a issue genuine to raise sufficient merely did not Johnson in Brown. under the rule rather, he plaintiff; toward comments sexual engage and abusive behavior of violent history a specific had the unanimous Therefore, because toward inmates.20 “temporal majority nature and the that the “dissimilar” The claims rape past at issue and the violent conduct distance” between Johnson’s First, foreseeability law. these as a matter of from immunizes defendants case, because, the reasoning in that arguments the from Hersh abandon years manslaughter the attack occurred 10 before for attacker’s conviction attacker’s] [the aware of question, in Hersh “was not and the defendant Builders, Inc, App Mich specific ....” Hersh v convictions Kentfield (1969). analysis today, Thus, contrary majority’s to the n NW2d 56 only employee’s conduct is foreseeable that an the caselaw does not hold precise recently at employee committed the conduct employer if the had an issue. majority’s Second, arguments the new test demonstrate that these also moving target that is quid pro quo cases creates for sexual harassment Brown, majority the impossible plaintiffs claimed that to hit. In it aggressive not sufficient to make comments were attacker’s rape target of those comments. later that the attacker would foreseeable against case, though had committed a violent act even Johnson In this long majority past, conduct occurred too claims that this inmate in the majority makes no ago conduct at issue. The too dissimilar to the and was substantially acceptable 10-year gap why in Hersh is explain effort to only summarily argues 13-year gap in this case and different from against his prior an inmate was too dissimilar to act Johnson’s violent at 16-17n 36. Viewed rape plaintiff she was an inmate. Ante violent while plaintiff, light I fail to see a difference between favorable to in the most subsequent rape violent physical an inmate and a altercation with violent deciding justify of law. this case as a matter that is sufficient to an inmate Rather, given the facts of this case similarities between the substantial Hersh, unanimous conclusion Hersh that this Court’s facts in I believe employ- [the employer or should have known of “[w]hether the knew by any matter propensities court as a should not be determined ee’s] vicious case, jury” equally applicable even under the law, to this but majority Hersh, majority’s Mich at 415. But under test. flawed new majority seemingly so, given apparently believes position, this is only committing rape foreseeable if the employee’s act of that an actually raped in the recent employee someone that the knows requirement unworkabilify is obvious. past. of such a County Wayne by Dissenting Opinion Cavanagh, J. Hersh Court and majority the Brown concluded that an violent criminal employee’s prior generally acts are to put sufficient notice employee’s defendant on of the propensity acts,21 to commit similar violent defendants’ knowledge of prior violent is to Johnson’s acts sufficient at least raise a genuine regarding issue of material fact the of his foreseeability plaintiff.22 eventual of rape Accordingly, even under the majority’s newly adopted pro standard for quid quo sexual harassment claims CRA, under the the majority wrong reaches the result case. this “ 413, Specifically, Hersh, employer’s ‘[t]he 385 Mich at stated that past knowledge impropriety, violence, of part acts of of disorder on the employee generally the considered the em sufficient forewarn ” ployer,’ quoting 390, (emphasis § added), majority 34 ALR2d and the Brown, 560, quoted passage 478 Mich at this from Hersh. 22Although majority opinion Brown, 555, the cites Mich at for the proposition aggression “[e]ven the incident of [toward inmate] an did put not sexually defendants on reasonable notice that would Johnson inevitably [because] assault inmate an do violent actions not lead of to acts conduct,” portion criminal sexual ante at the cited Brown of does not actually support Rather, portion that conclusion. the relevant of Brown “[cComments inexorably states that aof sexual do not nature lead to criminal any exasperated, sexual angry inexorably conduct than an more comment Brown, results in violent (emphasis criminal assault.” 478 Mich at 555 added). Furthermore, stated, Hersh, discussing Brown later while that “it is employee’s past provide known employer’s acts that a basis for the knowledge employee’s ‘impropriety, violence, of the or disorder’ and that potentially place employer employee’s those acts an notice on violent propensities.” Therefore, appears Id. at majority 561. it that the has even scope previous by further limited the employee conduct an that will be put employee’s sufficient an propensi on notice of the violent Disregarding ties. rape aggression,” fact anis “incident of majority previous claims that aggression” Johnson’s “incident of toward an subsequent plaintiff not rape inmate did make his foreseeable because the previous aggression” “incident majority’s was not a “sexual assault.” distinguish efforts to the differences between various violent acts leaves plaintiffs employers liability vulnerable to harm and immunizes from unless employee previously commits exact same act that he or she commit view, my majority’s analysis ted. In arbitrary and undercuts the clear legislative intent of the CRA. i Opinion Dissenting Cavanagh, J. has majority by overruling Champion,

Finally, major Michigan’s quid pro quo shift in caused a if I Thus, with jurisprudence. agreed even harassment standard, support I new could majority’s the Court hasty judgment decision reverse admits, Champion majority readily Appeals. As case, plaintiffs arguments applies clearly in on the set forth principles focused appropriately majority’s newly imposed rather than the Champion result, Ap As a the Court of foreseeability analysis.23 claims plaintiffs not the merits of peals did consider majority standard that the now foreseeability under the meaningful Curiously, majority proclaims “[n]o the that distinction present Champion be facts in and those in the can drawn between the matter,” 26, my a at later finds in conclusion that ante but fault My straightforward application Champion appropriate in this case. of rather, faulty; simply it to the conclusion is not reflects adherence majority the falters in its effort to doctrine of stare decisis. It is satisfy imprudent forgo prece explaining the burden of its decision to dent. “conflicting Indeed, majority’s argument dispositions in the that the support Champion, decision to ante at

the courts below” its overrule satisfy simply majority’s misplaced example of the one more efforts Zsigo applied it trial its While is true that the court in this case burden. simple Appeals applied Champion, exists the Court answer and, Although apparent diligently in this conflict. our trial courts work result, do, instances, majority the the reach the trial courts vast correct Indeed, occasion, Appeals large on err. the Court of and this Court exist part reality. this address case, Zsigo Zsigo applying In did this the trial court erred because Rather, pro quid quo not sexual harassment claim. as consider determined, Appeals correctly proper course of conduct Court of quid pro quo apply Champion, this sexual harassment case was dissent, majority Zsigo. Indeed, repeatedly Zsigo noted recognized quid quo Champion applies pro “in the context of 37.2103(i).” Zsigo, Mich 224 n 19. harassment under MCL at simple: Therefore, this case should be should resolution of pro quo apply quid It is the this is sexual harassment case. because majority needlessly injects “conflicting precedents principles.” Ante at 33. Dissenting Opinion by Hathaway, J. adopts. Accordingly, majority should not reach the merits this case unexpected because this shift away from Champion prevented plaintiff from making argu ments majority related the standard that now Rather, its applies. given holding, majority should remand this case to the lower courts for pro further ceedings plaintiff so that may develop arguments re lated to majority’s newly applicable, yet erroneous, quid standard for pro quo sexual harassment claims.

V CONCLUSION disagree I with the majority’s decision to overrule Champion because that case correctly decided and legislative furthers the intent purpose of the CRA. Moreover, the doctrine stare decisis weighs against overruling Champion. Furthermore, the majority mis- applies newly created standard in this case and role usurps the jury when it concludes that defendants are entitled to a favorable decision as a matter of law. I Accordingly, dissent.

Marilyn Kelly, J., J. Cavanagh, concurred with HATHAWAY,J. I (dissenting). dissent from the majori- ty’s decision to overrule Nation Wide (1996). Security, Inc, 450 Mich 545 NW2d 596 I fully agree II, iy and join parts I, with and ofV Justice CAVANAGH’sdissenting opinion. It is my strong belief Champion, unanimous Court,1 decision of this not only decided, correctly but served to protect the rights of victims of discrimination. Because the major- ity overrules correctly precedent, decided no stare deci- analysis necessary. sis The majority’s analysis and justices concurring joined Champion, analysis in full. See J., concurring). Mich at 714 (Boyle, 490 MICH Opinion Dissenting Hathaway, J. de- flawed, today’s fundamentally are

conclusions intent “legislative undermines significantly cision harassment, of sexual not the victims that employers, discrimina- eradicating remedying bear costs for the Finally, at 714. Champion, tion.” thoughtful in Justice CAVANAGH’s given reasons deci- majority’s dissenting opinion, well-reasoned in the law and results to the rule of contrary sion Act, MCL Rights Civil Michigan dismantling I dissent. Accordingly, et seq. 37.2101

Case Details

Case Name: Hamed v. Wayne County

Court Name: Michigan Supreme Court

Date Published: Jul 29, 2011

Citation: 803 N.W.2d 237

Docket Number: Docket 139505

Court Abbreviation: Mich.