LIND v CITY OF BATTLE CREEK
Docket No. 122054
Supreme Court of Michigan
Argued December 9, 2003. Decided June 11, 2004.
470 MICH 230
In an opinion by Justice MARKMAN, joined by Chief Justice CORRIGAN, and Justices WEAVER, TAYLOR, and YOUNG, the Supreme Court held:
Michigan‘s Civil Rights Act,
Because Allen v Comprehensive Health Services, 222 Mich App 426 (1997), draws a distinction between “individual” plaintiffs on account of race in determining whether a prima facie case of discrimination has been established under this act, Allen is overruled.
Justice YOUNG, concurring, stated that the dissenters in this case cannot reconcile the language of the Michigan Civil Rights Act,
Reversed and remanded to the circuit court for further proceedings.
Justice CAVANAGH, dissenting, stated that the majority overruled Allen v Comprehensive Medical Services, 222 Mich App 426
McDonnell Douglas Corp v Green, 411 US 792 (1973), provides a test for discrimination, the first prong of which test presumed that the plaintiff was a member of a minority class. Subsequent cases have stated that the McDonnell Douglas test needed to be adapted to facts in other circumstances. The federal circuit courts of appeals have determined three approaches to adapt the first prong of the McDonnell Douglas test in making a prima facie case of discrimination for cases involving reverse discrimination, such as this one. One approach is to use the background circumstances test, which requires a plaintiff to show background circumstances that support the suspicion that the defendant is the unusual employer who discriminates against the majority. Another is the requirement that a plaintiff only be a member of a class, thus virtually eliminating the first prong. A third allows either the background circumstances test or a showing of indirect evidence sufficient to support a reasonable probability that, but for the plaintiff‘s status, the challenged employment action would have favored the plaintiff.
The majority failed to provide guidance that the lower court, on remand, may use to adapt the McDonnell Douglas test, except to say that the lower court may not use the “background circumstances” test.
Justice KELLY, dissenting, stated that she concurred fully with Justice CAVANAGH‘s dissent and wrote separately to give additional reasons for affirming the summary disposition granted for the defendant.
The plaintiff failed to establish a prima facie case. The defendant had the discretion to choose one candidate from the promotion list. The defendant was not required to consider the particular attributes the plaintiff thought important and was not required to ignore subjective criteria in making its employment decision.
The background circumstances test from Allen v Comprehensive Health Services, 222 Mich App 426 (1997), should not be discarded because it is a modification of the test from McDonnell Douglas Corp v Green, 411 US 792 (1973). The background circumstances test acknowledges that reverse discrimination cases involve different underlying prejudices than do traditional discrimination cases. The purpose of the Civil Rights Act is to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. The distinction between the treatment of the
CIVIL RIGHTS — EMPLOYMENT — REVERSE DISCRIMINATION — PRIMA FACIE CASE.
A majority plaintiff in a reverse discrimination suit brought against an employer under the Michigan Civil Rights Act does not have to satisfy standards different from those required of other plaintiffs to show a prima facie case (
Roberts, Betz & Bloss (by Marshall W. Grate) for the plaintiff.
Clyde J. Robinson, City Attorney, and Barbara A. Hobson, Assistant City Attorney, for the defendant.
MARKMAN, J. Plaintiff, a white police officer, alleges that defendant violated the Michigan Civil Rights Act,
(1)
(2)
(3) The Court of Appeals, in reliance on Allen v Comprehensive Health Services, 222 Mich App 426,
(4) Allen draws a distinction between plaintiffs on account of race under
In response to Justice CAVANAGH‘s dissent, we observe that this opinion is short, not because we disagree with the dissent concerning the significance of this issue, but because Allen is so clearly contrary to the language of Michigan‘s Civil Rights Act. We are uncertain how many pages the dissent believes are required to explain that “individual” means “individual.” Further, we note that in its much longer opinion, the dissent, unlike the majority, never actually bothers to
Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings consistent with this opinion.5
CORRIGAN, C.J., and WEAVER, TAYLOR, and YOUNG, JJ., concurred with MARKMAN, J.
YOUNG, J. (concurring). I fully concur in the majority opinion, but write separately to note, on this fiftieth anniversary of the decision in Brown v Bd of Ed,1 how singular and troubling is the dissenting view of my two colleagues.
It is hard to reconcile the logic of the dissenters’ position when juxtaposed to the language of our Michigan Civil Rights Act and our state constitution without recalling Orwell‘s chilling refrain: “all [citizens] are equal, but some [citizens] are more equal than others.”2
Fifty years after the United States Supreme Court declared in Brown that the government could no longer use consideration of race to disadvantage any of its citizens, our two dissenting colleagues have announced precisely the contrary position. Our dissenting colleagues have advocated that the judicial branch of government require persons of one race to bear a higher
This is a concept worth repeating for emphasis, for no citizen of this state should miss the import of the dissents’ view. Our dissenting colleagues maintain that, under a statute that explicitly prohibits employment discrimination “because of” race, some Michigan citizens must bear a higher burden to maintain such a lawsuit precisely because of their race.
Not only does the dissents’ position constitute an offense against the very protections our Civil Rights Act provides, our dissenting colleagues are conspicuously silent about the constitutional implications of a governmental policy that places higher burdens on one set of citizens because of their race. The Michigan Equal Protection Clause,
“No person shall be denied the equal protection of the laws ... because of ... race. ...”
I do not challenge the good intentions of my dissenting colleagues; I do challenge their Orwellian racial policy preferences.
CAVANAGH, J. (dissenting). I must dissent, not only from the majority‘s holding, but also from Justice YOUNG‘s assertion that we should turn a blind eye to racism. How I wish we all could live in Justice YOUNG‘s utopian society where all races are treated equally, but I cannot ignore reality. I urge the reader to look beyond the surface appeal of Justice YOUNG‘s simplistic argument and examine not only the text, but also the context of the Civil Rights Act. It is with regret that I acknowledge the relevance today of Clarence Darrow‘s closing
Without any discussion of the relevant case law, this Court today overrules Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997). The cursory nature of the majority opinion shows a complete lack of respect for the importance of today‘s decision and the impact it will have on civil rights.
The majority overrules Allen because that case draws a distinction between plaintiffs on the basis of a minority class characteristic or trait, while the text of Michigan‘s Civil Rights Act does not. Because today‘s decision perverts the purpose of the Civil Rights Act and ignores precedent from this Court and the United States Supreme Court, I must respectfully dissent.
I. FACTS AND PROCEEDINGS
Because the majority opinion omits the relevant facts and circumstances, I provide them here. Plaintiff, a white male, filed this discrimination complaint following the promotion of a minority male to the position of sergeant at the Battle Creek Police Department. The procedure for promotions requires candidates to score at least seventy percent on a written examination and to successfully complete an oral examination. Candi-
At the close of discovery, defendant filed a motion for summary disposition pursuant to
Plaintiff appealed and the Court of Appeals affirmed the trial court‘s grant of summary disposition.2 The Court of Appeals applied the test from Allen and agreed with the trial court that plaintiff failed to provide sufficient evidence to create an issue of fact regarding whether defendant was the unusual employer who discriminates against the majority.
Plaintiff appealed to this Court and we granted leave, directing the parties to address whether the Allen “background circumstances” test is consistent with Michigan‘s Civil Rights Act (CRA),
II. STANDARD OF REVIEW
This Court stated the applicable standard of review in Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001), in which we applied the test from McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), to a racial discrimination claim:
We review de novo a trial court‘s decision on a motion for summary disposition. A motion for summary disposition brought under
MCR 2.116(C)(10) tests the factual support of a claim. After reviewing the evidence in a light most favorable to the nonmoving party, a trial court may grant summary disposition underMCR 2.116(C)(10) if there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 453; 597 NW2d 28 (1999).
III. ANALYSIS
Michigan‘s CRA, at
It shall be unlawful employment practices for an employer ... (1) ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual‘s race. ... [
42 USC 2000e-2(a) .]
In some discrimination cases, there is direct evidence of racial bias. But in most discrimination cases, there is no direct evidence. Recognizing this, the United States Supreme Court developed the McDonnell Douglas
Under the McDonnell Douglas test, a plaintiff must first offer a prima facie case of discrimination. To create a presumption of discrimination a plaintiff must present evidence “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.” McDonnell Douglas, supra at 802. Once the plaintiff has created a presumption of discrimination, the burden then shifts to the defendant to rebut that presumption by showing that there was a legitimate, nondiscriminatory reason for the employment action.
In Hazle, this Court applied the above framework to a racial discrimination claim filed pursuant to the CRA. The plaintiff in Hazle was required to present evidence that
(1) she belong[ed] to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. [Hazle, supra at 463.]
In applying the McDonnell Douglas framework, this Court recognized that varying facts in discrimination cases require courts to tailor the McDonnell Douglas framework to “fit the factual situation at hand.” Hazle, supra at 463 n 6.
Strict application of the McDonnell Douglas framework would preclude all reverse discrimination claims without direct evidence of discriminatory bias. Because
There are three general approaches followed by the federal circuits. The approach followed by a majority of the circuits is the “background circumstances” test, which requires a majority plaintiff to show background circumstances that support the suspicion that the defendant is the unusual employer who discriminates against the majority. This approach is followed by the United States Courts of Appeals for the District of Columbia, and the Sixth, Seventh, and Eighth circuits. Parker v Baltimore & Ohio R Co, 209 App DC 215; 652 F2d 1012 (1981); Murray v Thistledown Racing Club, Inc, 770 F2d 63, 66-68 (CA 6, 1985); Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801 (CA 6, 1994); Mills v Health Care Service Corp, 171 F3d 450, 457 (CA 7, 1999); Duff v Wolle, 123 F3d 1026, 1036-1037 (CA 8, 1997). The second approach only requires a majority plaintiff to prove that he is a member of “a class.” This approach is followed by the Third and Eleventh circuits. Iadimarco v Runyon, 190 F3d 151, 163 (CA 3, 1999); Wilson v Bailey, 934 F2d 301, 304 (CA 11, 1991). The third approach allows a majority plaintiff to state a prima facie case in one of two ways, by using the
A. THE “BACKGROUND CIRCUMSTANCES” TEST
The “background circumstances” test was created by the Court of Appeals for the District of Columbia Circuit because the United States Supreme Court noted that the McDonnell Douglas factors have to be adjusted to fit varying factual scenarios and because strict application of the framework would eliminate all reverse discrimination claims. Parker, supra at 220. Under the “background circumstances” test a majority plaintiff claiming reverse discrimination can meet the first prong of establishing a prima facie case “when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Id. Generally, “background circumstances” can be shown by evidence indicating that the employer has some reason or inclination to discriminate against the majority or by evidence indicating that there is something suspect about the particular case, which raises an inference of discrimination. See Harding v Gray, 9 F3d 150 (DC Cir, 1993).
B. THE “MEMBER OF A CLASS” APPROACH
Some courts have criticized the “background circumstances” test and have applied their own adaptations of
a plaintiff who brings a “reverse discrimination” suit under Title VII should be able to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable fact finder to conclude ... that the defendant treated plaintiff “less favorably than others because of [his] race, color, religion, sex, or national origin.” Furnco [Constr Co v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978)]. [Iadimarco, supra at 163.]
C. THE NOTARI ALTERNATIVE
The Fourth Circuit and the Tenth Circuit apply yet another variation of the McDonnell Douglas framework to reverse discrimination claims. See Holmes, supra at 146; Notari, supra at 589. This test acknowledges the presumption of discrimination implicit in McDonnell Douglas, but allows a reverse discrimination plaintiff to prove either background circumstances or specific facts that support a reasonable inference that, but for plaintiff‘s status as a member of the majority, the challenged decision would not have been made.
IV. CONCLUSION
The diversity of opinion among the federal circuits is evidence of the difficulty and complexity of this issue,
KELLY, J. (dissenting). I agree fully with Justice CAVANAGH‘s dissent. I write separately to state my additional reasons for supporting an affirmance of summary disposition for defendant.
PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIE CASE
Under any employment discrimination test, plaintiff failed to establish a prima facie case. Defendant had discretion to choose one of the candidates on the promotion list and had an established practice of not necessarily promoting people in the order they appeared on the list.
Defendant was not required to consider those attributes that plaintiff alleges made him a superior candidate to the employee who was in fact promoted. Plaintiff did not rebut defendant‘s asserted reliance on the promoted employee‘s maturity and sense of service. Defendant was not required to forgo subjective criteria in making the employment decision, especially considering the critical role that police officers fill in society. Plaintiff failed to rebut defendant‘s race-neutral rea-
I disagree with the majority‘s rejection of the background circumstances test of Allen. Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997). In addition, I note that, even absent Allen, plaintiff‘s claim must fall because plaintiff failed to refute defendant‘s legitimate nondiscriminatory basis for promoting another candidate.
THE BACKGROUND CIRCUMSTANCES TEST SHOULD NOT BE DISCARDED
The fact that Michigan‘s Civil Rights Act¹ creates no distinction based on a person‘s status as a member of the “majority” or the “minority” does not justify discarding the background circumstances test. Because it is entirely consistent with the purpose of the act, it should be retained.
The majority‘s analysis suggests that this case involves a simple issue of the proper interpretation of § 202 of the civil rights act.2 However, the language of the act does not address the question presented here: what evidence must be presented to establish a prima facie case of discrimination.
The background circumstances test is a modification of the McDonnell Douglas test. The rationale for the test was first articulated by the District of Columbia Circuit Court of Appeals in Parker v Baltimore & Ohio R Co, 209 App DC 215; 652 F2d 1012 (1981). The Allen Court adopted it as its own, concluding that it was an appropriate modification of the McDonnell Douglas test.
The background circumstances test acknowledges that reverse discrimination cases involve different factual situations and different underlying prejudices than do traditional discrimination cases. The test recognizes at its base that the hostile discrimination present in McDonnell Douglas is not typically directed at members of the majority. Allen, supra at 431-432. I agree with the following reasoning from Allen that quotes Parker, supra:
“The original McDonnell Douglas standard required the plaintiff to show ‘that he belongs to a racial minority.’ Membership in a socially disfavored group was the assumption on which the entire McDonnell Douglas analysis was predicated, for only in that context can it be stated as a general rule that the ‘light of common experience’ would lead a factfinder to infer discriminatory motive from the unexplained hiring of an outsider rather than a group member. Whites are also a protected group under Title VII,
The majority‘s rationale in overruling the background circumstances test is not in keeping with the progeny of McDonnell Douglas. In mechanically applying the plain language doctrine of statutory interpretation, the majority subverts the purpose of the act and the Legislature‘s intent in writing it. They were to prevent discrimination against a person because of that person‘s membership in a certain class and “to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993), quoting Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984).
In our society, demeaning acts of prejudice directed against whites because of their race are uncommon. Historically, whites have not suffered from pervasive racial oppression, discrimination, and stigmatization as have members of minority races. A national survey conducted in 1990 found that prejudice against whites continues to be relatively rare. Only seven percent of whites interviewed claimed to have experienced any form of racial discrimination. Schuck, Affirmative action: Past, present, and future, 20 Yale L & Pol‘y R 1, 67 (2002). Conversely, with respect to racial minorities, “race unfortunately still matters.” Grutter v Bollinger, 539 US 306, 333; 123 S Ct 2325; 156 L Ed 2d 304 (2003).
The existence of this crucial distinction between the treatment of the majority and of the minority supported the Allen Court‘s adoption of the background circumstances test. Common experience in Michigan does not
As a consequence, I would uphold the background circumstances test adopted in Allen and affirm the decision of the lower courts.
Notes
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.