*1
v DEPARTMENT OF TREASURY
VICTORSON
(Cаlendar
14).
10,
Argued
88975.
No.
De-
Docket No.
October
17,
cided March
1992.
brought an action in the Oakland Circuit
Richard Victorson
Department
Treasury, alleging
against
that a
Court
position
employee’s appointment
to an Auditor ix
over
female
department’s
voluntary
him
to the
plan
approved
was void because the
had not been
O’Brien, J.,
court,
Rights
Commission. The
John N.
plaintiff, finding
granted partial summary disposition for the
prior approval
that the failure to obtain
from
commission
implementation
and that
and utilization
rendered the
void
Ap-
constituted sex discrimination. The Court of
Beasley
(Shepherd, P.J., dissenting),
peals,
Gribbs,
JJ.
and
(Docket
109225).
department appeals.
affirmed
No.
The
opinion by
joined by
Mallett,
Justice
In an
Justice
Chief
Cavanagh
Supreme
Boyle,
and Justices
Court
Levin
held:
implements
An
who
an affirmative action
Rights
formally approved by the Civil
has not been
Commission
guilty
is not
of discrimination as a matter of law. Such conduct
discriminatory.
faced with the existence of
is not itself
When
plan, summary
unapproved voluntary affirmative action
Instead,
disposition
automatically
does not
follow.
the defen-
permitted
dant is to be
to show that the
is otherwise valid
Act,
purpose
as similar in
to the Civil
that it does not
nonminorities,
unnecessarily
rights
and that it
trammel the
temporary in
nature.
Act,
specifically
purpose
1.
§
of the Civil
encourage persons subject
steps voluntarily
to it to take
is to
assuring equal opportunity
toward
and to be
charges
by requiring
plans
free from
of discrimination
such
approved by
be filed with and
Commission
References
996-1002, 1009,
2d,
984, 986-991,
Am Jur
Job Discrimination §§
1010.
Opportu-
Equal Employment
the Index to Annotations under
See
nity.
whether an tive action ap- formally plan that has not been proved Commission Mich op the Court 3.548C210)1 37.2210; MCL MSA guilty discrimi- nation as a matter of law. We hold that such conduct is not itself discriminatory.
We therefore reverse the decision of the Court of Appeals and remand to the circuit court for fur- ther consideration.
FACTS Victorson, Richard a high school graduate, be- gan his еmployment Department with the of Trea- sury as an auditor in 1982, 1967.2 In took the Professional Managers and Administra- tors examination on which he received a "highly qualified” rating.3 This rating made him eligible for any position within the department for which qualified. he was 1983, In May of applied he for a promotion from an Auditor to an Auditor ix vii position Arbor, available Ann Michigan. Victor- son given a structured oral interview and received the highest score of applicants all inter- viewed. As a result of both his score on the pma examination and his oral Victorson was interview^ initially recommended for position.
Ms. Siegla, Joan a Certified Public Accountant and the holder of a master’s degree accounting, 3.548(101) seq.; seq. MCL 37.2101 et et In changed the Civil Service Commission the educational requirement required for the auditor degree class which a bachelor’s twenty-one and either accounting. thirty-two semester hours or term credits in employed by dеpartment Those in 1976 who did not requirements "grandfathered” have educational were into the class. people equal footing "Grandfathered” promotions stand on for possess requirement. those who the educational pma taking graded Persons highly examination are either *4 qualified, they above, ninety which qualified, means score or which seventy eighty-nine indicates a score of on the examination. Defen program dants had an protected which allowed group qualified group members in the to be. added to the candidate pool if there were highly qualified not three group. candidates in the promotions The rule of three limits highly qualified those group, provided highly qualified there are at group. least three in the Treasury 135 Victorson op the Court Siegla
began in 1974. as an auditor her career rating "qualified” on the examina- pma received Siegla apply Initially, Auditor for the did not tion. require thought position it she would ix relocating because interviews After the oral her residence. by Siegla completed, De- informed was were opportu- equal employment Treasury’s partment of necessary. nity was not relocation officer Siegla interested she would be indicated position She was interview was scheduled. and an by interviewers, but Mr. Victorson’s interviewed given the oral Recommended not a score. was appointed Siegla the Auditor interviewers, was Siegla’s promotion position Ms. ix over Victorson.4 Department to the made plan.5 voluntary 1979 action The 1979 4 applied promotion, three Audi had for Before the 1983 Victorson Subsequent promotions, to the to other men. tor ix all of which went position, Siegla applied promotion, for an Auditor x male, positions, ix which also went and two Auditor went to another men. 5 ap Siegla was under which The 1979 affirmative pointed provides: goаls progress Department Treasury’s for and statewide year are as follows: the 1979 fiscal goals (Handicapped persons in the because are reflected guidelines reporting requirements have not been established for M.E.E.O.C.) (i.e. Auditor, Systems Data Governmental
Professional Classes
Representative
Analysts,
ecutive)
Revenue Ex-
and
Tax Collection
through 11:
at levels 07
Females, Blacks,
undesignated
Hispanic
1
1
Goals: 8
minority
5 Females and 7 Blacks
Hired to date:
(i.e.
Operator
Computer
Computer
Technical Classes
through
Programmer)
10:
at levels
Females, 1
Black
Goals:
Females, Black, Hispanic
Hired to date:
*5
136
Richard Victorson .brought suit in the Oakland Court, Circuit alleging among things other under Siegla promoted was void because it had not ap- been proved Rights Civil Commission.
On cross motions for summary disposition, circuit granted court partial summary disposition in favor of Victorson. The court found that department’s failure to obtain prior approval from Commission rendered void. The court further implementation found that and utilization of the affirmative action plan con- stituted sex discrimination in violation of the Civil Act, 37.2202; MCL 3.548(202), awarded $14,000 Victorson more than in damages. (i.e. Clerk, Clerk,
Clerical Typist, Classes General Calculations Secretary Coding Operator) and Data Machine at the levels through I VIII: Blacks, Hispanics Goals: 15 7 Blacks, Hispanics Hired to date: through Professional Classes at levels 12 14: Females, Goals: 2 1 Black Hired to date: 2 Blacks through
Technical Classes at levels 11 14: Females, Goals: 1 Black Hired to date: None through
Administrator Classes at levels 15 20: Female, Goals: 1 1 Black Hired to date: None While approve plan, Commission did not the 1979 Equal Employment Opportunity record indicates that Council approve plan. Membership did Governor, in the council consisted of the Departments Rights, Management Directors of the of Civil Budget, Service, Attorney and Civil and the General. v Opinion of the Court pending stayed proceedings the De- were
Further partment appeal Treasury’s the Court of Appeals. Appeals decision of affirmed the
The Court of Treasury, Dep’t of court. Victorson the circuit (1990) (Shep- App 318; 454 NW2d 183 Mich *6 clearly holding dissenting), and § 210 J., herd, voluntary provides unambiguously affirma- that a approved by not been which has tive action Rights invalid. Commission is the.Civil appeal by granted order leave to This Court 22, Mich 925. 1991. 437 dated March
I
upon
whether
to determine
We are called
ren-
Commission
absence of Civil
made
decisions
ders
unapproved voluntary
plans
dis-
criminatory
in violation of
of law
a matter
as
Michigan’s
of this
Act.7 Resolution
Civil
depend
upon
§of
construction
will
issue
provides:
adopt and
may
person subject
A
to this article
effects оf
present
to eliminate
carry out
op-
equal
practices or assure
past discriminatory
race, color, na-
religion,
respect
portunity with
plan is filed with
origin, or sex if the
tional
and
of the commission
under rules
commission
commission
37.2210; MSA
plan.
approves the
[MCL
3.548(210).]
statutory construc-
fundamental
rule
It is a
language
is clear
statute
of a
tion that where
interpretation
judicial
unambiguous,
no
City
Ser-
of Social
v
of Livonia
warranted.
7
3.548(101)
seq.
seq.;
et
et
MCL 37.2101
138
439 Mich 131
Opinion op the Court
(1985).
vices,
466, 487;
423 Mich
378
402
NW2d
judicial
permitted
However,
construction is
where
language
suscepti-
of a statute is unclear and
interpretation.
ble to more than one
State Trea-
Wilson,
138, 144;
surer v
423 Mich
was void of the necessity submitting absolute action of an plan approval. Appeals for The Court of Finding language reversed. § that the of 210 was unambiguous, Appeals clear and the Court of "[o]nly stated that the decision whether or not to initiate an affirmative action is dis- cretionary. Clearly, . . . initiated, once a submission of to the commission becomes mandatory.” Van Dam at 139. Appeals contrary
The Court of
came to a
conclu-
Ruppal Dep’t
Treasury,
App
in
sion
v
of
163 Mich
(1987).
Ruppal
219;
37.2202(1)(a); because pursu employee promotion made was of a female in ant to granted the § 210. The trial court violation summary judgment. plaintiff’s ing, require plans Revers motion for Appeals § 210 did found that the Court of approved to be filed with Rights Commission, that failure to but held approval result does not commission obtain summary Citing plaintiff. disposition in favor of the App Cavanaugh Detroit, 126 Mich & Co v FJ (1983), Appeals the Court of 627; 337 NW2d employer’s opined failure to obtain com that an precludes employer from mission invoking opposite protection. inter These the act’s pretations arguably § 210 that is at least lead us conclude and therefore subject judi
ambiguous Statutory Sands, 2A Sutherland construction. cial Construction (4th ed), p 46.04, 87. voluntary provided Originally, affir- § 210 adopted plans if the could be mative was filed with the сommission and the commission disapprove plan. 4055, § HB 20. We did Appeals present agree the Court of contemplates § an active that the current case agree this role for the commission. We also implementation only role indicates that the active of contemplated by Legis- approved lature. original
Similarly,
and current
a review
act,
§ 705,
further
which construes
versions
202(1)(a) provides:
Section
recruit,
hire,
or
not . . .
or refuse
An
shall
[flail
against
discharge,
an individual
or otherwise discriminate
or
with
tion)
term,
respect
employment, compensation, or a
condi-
race,
religion,
privilege
employment, because of
*8
color,
sex,
weight,
origin, age,
height,
or marital
national
status.
Nothing interpreted in this act shall be as re- stricting implementation of affirmative action programs to eliminate discrimination and the ef- 4055, appropriate. 68(2).] fects thereof when § [HB There is no to approved plans. reference The cur- modified, rent slightly version of § provides: interpreted restricting
This act shall not be as implementation approved plans, programs, the or services to eliminate discrimination and the effects thereof when MSA appropriate. 37.2705(2); [MCL
3.548(705)(2).Emphasis added.] that by enacting We believe Act, 210, it specifically was the intention of the § Legislature encourage persons subject to the act voluntarily steps assuring take toward equal opportunity and to be free from employment charges requiring of discrimination by plans such approved to be filed with and Commission implementation. before We also be- Legislature, requiring lieve pre- approval, plans intended to be sure that these did unnecessarily not trammel of nonminor- ity employees.
II Although preаpproval we find that commission required by persuaded we are decisions made to un- constitute, law, approved as a matter Michigan’s discrimination violative of Act. *9 v of 141 Opinion op the Court
The act does not make reference to plans, nor does the act possible indicate the conse- quences for utilizing unapproved affirmative action plans. To assert the Legislature intended the use of unapproved plans to constitute discrimina- tion as a matter of law is not supported by the legislative Such a history.9 narrow construction negates purpose of civil rights legislation and supported by long- Our conclusion is a review of the state’s policy requiring "equal employment opportunity established in state government.” 1971, In Governor Milliken issued Executive Directive 1971-8, requiring agencies departments implement state and policy providing equal employment opportunity state’s employment. Civil among in statе study by The directive was the result aof conducted Commission, which, Commission and the Civil Service things, underrepresented other found that women were higher positions Department Treasury. level within the The direc department agency responsible tive also made the head of each and establishing maintaining programs for tuate the state’s and affirmative action to effec policy. 1975, 1975-3, In Governor Milliken issued Executive Directive estab- lishing Michigan Equal Employment Opportunity Council. While noting progress following had been made the issuance of Execu- 1971-8, recognized tive Directive the Governor that more needed to be governmental positions open done to make state meeoc, to all. The subsequently Michigan Equal Employment Opportu- and Business nity ing charged (meeboc), responsibility Council with the of review- progress developing guidelines affirmative action and to assure that the affirmative action were consistent with the intent of the directives. again 1985, In 1983 and Governor Blanchard affirmed the state’s equal policy employment opportunity charged Commission and the Civil responsibility Service Commission with the prereviewing departmental agency all state affirmative action plans. See Orders 1983-4 and 1985-2. Executive persuaded We are by that the executive directives issued Governor Milliken and the executive orders issued Governor Blanchard recognize very important principles. First, two the issuance of the directives and orders indicates that both Governors realized the policy equal employment opportunity govern- state’s ment was not primary tunity within state Second, being realized. affirmative action was the Michigan equal oppor- means which citizens would realize governmental employment. in state While Executive Order required 1983-4 Commission and the Civil Service prereview departmental plans, Commission to regarding preapproval order is required. silent whether was also Moreover, gubernatorial the directives and orders demonstrate con- minority representation cern over the dearth of employment. and female in state 439 Mich op the Court remedial such afforded construction the liberal legislation. Kelsey-Hayes Co, 431 Mich Eide (1988), citing Sands, Suther- 34; 427 NW2d (4th ed), 60.01, Statutory Construction land 55.10 p 3.548(202)(1) Michigan’s 37.2202(1);
MCL 703(a), parallel 2000e-2.11 USC VII, § title regarding Michigan’s the effect act is silent Since alleged noncompliance discrimi § 210 has on *10 practices, natory employment to anal look we will ogous in our construc as an aid case law federal Budget, Management Dep’t 428 & v of tion. MSEA (1987), citing Kes 104, 117; 606 404 NW2d Mich Michigan 510; Univ, 414 Mich State v tenbaum (1982). 327 783 NW2d Corp Douglas Green, 411 US v
In McDonnell (1973), the 668 1817; L Ed 2d 792; Ct 36 93 S Supreme the order Court established States United 10 rights legislation purpose in Miller of civil This Court stated the (1984): 355, 362-363; Corp, 650 362 NW2d v 420 Mich CA Muer against prevent a to discrimination aсts seek stereotyped impressions person istics rights persons about the character- of because Michigan person belongs. The civil of a class to which the against prejudices borne and biases” aimed at "the act is class, Boscag- membership a certain their because of 308, 316; Co, Michigan Telephone 420 Mich Bell
lia v Kelvinator, Inc, Supp (1984); 469 F v Freeman NW2d (ED 1979), Mich, of to eliminate the effects and seeks stereotypes, prejudices, demeaning and biases. or offensive emloyer— employment practice for an It shall be an unlawful individual, (1) discharge any or to refuse to hire or to fail or respect any against individual otherwise his ment, national discriminate terms, conditions, employ- privileges compensation, or of color, sex, race, religion, or of such individual’s because origin; or (2) employees applicants limit, classify segregate, or his deprive any way employment whiсh would or tend for opportunities deprive any or other- individual employee, adversely because of such status as an affect his wise color, sex, race, origin. religion, or national individual’s v Opinion op the Court proof following in a title VII case. The include steps Supreme set forth Court in Mc- Douglas: plaintiff First, Donnell must establish prima facie case discrimination; then the employer burden shifts to the to articulate a non- discriminatory, legitimate employ- reason for its Finally, ment decision. cessfully plaintiff should the suc- plaintiff’s prima case, rebut the facie opportunity is afforded an to demonstrate employer’s nondiscriminatory articulated pretext. merely plaintiff reason is Id. at 804. The proving invalidity bears the burden of of an Wygant at all times. Ed, Jackson Bd of 1842; US 106 S Ct 90 L (1986). Ed 2d 260 proof We believe that the order of for title VII Douglas cases established in McDonnell is the appropriate proof arising order of for cases under Dep’t Manage- Act. MSEA v Budget, supra. ment & Thus, under plaintiff Act, the must first establish a prima facie case of discrimination. This will re- quire showing that race or sex has been consid- employer’s employment ered in the decision. This *11 requirement may by establishing be satisfied the employer’s unapproved use of an affirmative action plan. inquiry However, the does not end here. plaintiff’s prima
After the case, facie the defen- opportunity dant is then afforded an to rebut the presumption of discrimination. The absence of an approved plan employer does not mean that the precluded articulating nondiscriminatory from a reason for its Thus, decisions. use of unapproved plan plaintiff an will not entitle the summary disposition. succeed on a motion for allowing Instead, we believe that an the opportunity that, to demonstrate plan affirmative action is otherwise valid is consis- 439 Mich the Court purpose Act12and the of the tent with Legislature. intention the the Supreme Court articulated United States The determining when factors be considered several plan. validity United action of an affirmative the 193; Weber, v 443 US of America Steelworkers (1979). 2721; 61 L Those factors S Ed 2d Ct (1) purposes employer’s of the whether include: plan (2) purposes VII, of title is similar to unnecessarily employer’s tram- whether (3) nonminorities, whether the plan and mels temporary in at 208. At nature. Id. private employer a whether issue Weber was voluntary implement could a plan designed to the racial stratification eliminate Using above, listed in its work force. factors upheld employer’s the Court percent required fifty of the em- in-plant training program ployees selected for the be black. applied Supreme
The United States Court imple- factors an affirmative action Weber public employer a Johnson Santa mented Transportation Agency, 616; Co 480 US Clara S (1987). Johnson, L 94 Ed 2d 615 In Ct adopted transportation agency Clara Santa designed implemented an affirmative action the underutilization of women and to eliminate agency minorities. authorized the appli- ethnicity qualified sex of consider segre- seeking promotion traditionally to a cant gated job Petitioner Johnson and a classification. applicant qualified were considered female subsequently interviewed. Johnson scored a were seventy-five on interview tied for his and was applicant place. ranked The female third second supra. n 9 See *12 Victorson1 v Opinion op the Court seventy-three. with an interview score of Johnson ultimately promotion, was recommended for the applicant promotion but the female received the agency’s plan. because of the affirmative action The Court used the factors in established Weber guide assessing as a utilized the affirmative action agency. First, the Court considered agency’s plan whether the addressed concerns sim- ilar to the concerns addressed title VII. The Court found that ance in the statistical work force imbal-
traditionally segregated jobs justified agency’s promotion applicant of the female over Johnson.
The next Weber factor the Court considered was plan unnecessarily whether trammeled the rights employees. Noting agency’s of male that the any posi- did not set aside fifty minorities, tions for women or unlike the percent Weber, set aside the Court found that did not trammel of male work- ers, or create an bar to their advance- absolute Moreover,, ment. the Court was satisfied with the testimony agency’s trial of the many director that sex only was one of factors he considered when promotion he decided to offer to the female applicant.
Finally, agency’s plan the Court found that temporary designed in nature it because was to eliminate a manifest imbalance in the work- place. Furthermore, the Court found that the only attaining itself made reference to a balanced maintaining work force and no references to Consequently, balanced work force. the Court con- that, agency’s cluded permissible consideration of sex was and its affirmative action did not violate title VII. fashioning
We believe that a test similar to that established in Weber and used in Johnson is an *13 Mich 131 by Dissenting Opinion Brickley, J. present appropriate to the resolve means Finally, suc- if defendant cases. the and similar prima cessfully plaintiff’s case, facie rebuts the plaintiff permitted that to the is demonstrate then proffered nondiscriminatory is reason defendant’s a pretext.
CONCLUSION Appeals the the the reverse Court of We decision the court. We and remаnd case to circuit suggest proof the orders that circuit court follow the exis-
outlined When faced with above. unapproved voluntary ac- affirmative of an tence tion plan, disposition summary not automati- does cally af- Instead, is to be follow. the defendant plan opportunity is show forded an otherwise showing to that accomplished by may valid. be This (1) plan unapproved that is similar (2). purpose Rights Act, to the does rights unnecessarily of nonminor- not ities, trammel (3) temporary in nature. JJ., C.J., and Levin Cavanagh, Boyle, J. Mallett, with concurred agree (dissenting). major- I J. with Brickley, encourage Legislature ity to that intended through persons subject Act,1 the Civil adopt voluntarily 210,2 agree holding plans. majority’s I also with the clearly requires § that an affirmative action approved by filed with and be implemented. in order (crc) Commission disagree holding majority’s However, I unapproved plan may under as a defense to a disсrimination claim serve 3.548(101) seq.; seq. et et MCL 37.2101 MSA 3.548(210). 37.2210; 2 MCL Dissenting Opinion Brickley, Act if the would be valid under federal civil law.3 majority I believe the misstates the issue this case in terms of whether the failure to obtain of an affirmative action means that unapproved plan action taken to the discriminatory pp Ante, as a matter of law. 133- majority 134. holds that such conduct is not discriminatory itself and that affir- an. plan may legitimate, mative action nondiscriminatory constitute a
reason for I action. necessary do majority, decide, not find it as does the Appeals *14 whether the Court of was cor- finding unapproved plan rect is a that the use an per discriminatory Certainly, merely having se. plan act, does not violate the but it is difficult to pursuant envision an action taken to such a proscription that would not violate the of the Civil against religion, Act the consideration of origin, Legis- race, color, national or sex. That thе lature considered there to be a conflict between prohibited by those acts the statute and actions taken to an affirmative action is by necessary buttressed the fact it that found it specify subject person the conditions "[a] under which may adopt carry
to this article out a plan natory practices present past to eliminate effects of discrimi- equal opportunity
or assure . . . .” MCL 3.548(210). 37.2210; may legiti-
Thus, while affirmative action "nondiscriminatory.” mate, it is seldom ever Therefore, the issue that must be addressed is disagree majority’s facts, 3 I implying with the recitation of the qualified applicant its result is correct because the most received the promotion in support this case. The facts the record do Siegla qualified conclusion that Ms. was more than Mr. Victorson. reflect, however, Siegla What the record pro does is that Ms. only moted because she is a woman. The issue to be resоlved is Department promote authority whether her on this basis. had the Mich 131 439 Dissenting Brickley, J. unapproved action whether an may employ- legitimate for constitute a reason alleged discriminatory. I would action to be ment is that an hold not a Rights approved plan, employment legitimate to a claim under defense that, I
Act. further conclude absent elimi- "to taken discriminatory prac- present past effects of nate respect equal opportunity or with tices assure origin, religion, race, sex,” color, MCL national 3.548(210), alleged to be 37.2210; MSA is provi- discriminatory, judged under the must be prohibit Act that unlawful sions of employers, as if no affirmative discrimination action implemented. were
i
begin
legislative
A determination of
intent must
language
statutory language,
and if
such
unambiguous,
judicial
in-
no further
is clear
terpretation
In
warranted.
re Forfeiture
(1989);
$5,264,
242, 248;
432 Mich
NW2d
Quality Market,
335, 343;
Phil’s
Mich
Hiltz v
(1983);
Rapids
Crocker,
337 NW2d
Grand
(1922).
Further,
219 Mich
189 NW
meaning
plainly expressed by when the
*15
provision
statute,
of a
the wisdom of the
is a
words
legislative responsibility
of
Court
matter
and this
Lansing
Twp,
City
Lansing
may not interfere.
of
v
(1959). Finally,
641, 648;
356 Mich
reliance on federal case
statute
Like the I conclude that the language regarding §of 210 no the leaves doubt persons Legislature’s subject intent to allow to the v of Victoeson by Dissenting Opinion Brickley, adopt implement act and affirmative action plans upon approval only by express the crc. language may of the states statute that such adopted and out "if the carried filed with the mission MCL There Legislature of the commission under rules com- approves plan.” the and commission 3.548(210) added). (emphasis
37.2210; MSA ” dispute no that "if used can be contingеncy. as a word condition of or People Merhige, 601, 610; See 212 Mich 180 NW (1920). majority agrees approval by While the mandatory, any why it omits of discussion crc requirement an purposes is consistent with the requirement
of act. Such a serves to prevent unlawful discrimination also to and en- courage persons subject adopt to the act to carry present plans out affirmative action to eliminate the past of
effects discrimination assure equal opportunity. explicitly prohibits The act em- ployment actions that are based on immutable characteristics, 3.548(202). 37.2202; such as MCL sex.
However, adopted § and carried out their very nature, involve actions that take into account such immutable characteristics.4 Be- Cavanaugh Detroit, App See J F & Co v 126 Mich 337 NW2d (1983). Cavanaugh, Appeals city’s In the Court noted that requirement city implement that all contractors affirmative action plans "implicitly requires employers conflicts with law state color, religion, race, not origin, to discriminate on the basis national Following quotation wording Id. at 637. sex.” of the 210, the § Court continued: discrimination, prohibition In view statute’s 210§ implicitly precludes the use of an affirmative action unless rights] is "filed under commission rules [civil approves plan.” of the and the commission commission agree conclusion, except explicitly, I with this rather implicitly, precludes than the use of plan. *16 Mich 131 439 150 Dissenting Opinion Brickley, J. goál primary Act is to of the Civil
cause surprising discrimination, it is not eliminate all Legislature in fit to centralize has seen that the crc which based on plans, approval of affirmative action categorization require by definition discrete race, Thus, sex, etc.5 centralized certainly consistent of affirmative purpose Act. of the Civil with the overall interpret §of 210 this does construction Neither prohibit affirma- to or it a manner as bar in such public employer. v See Johnson tive action Agency, Transportation 480 US Clara Co Santa (1987); 629; 1442; 94 L Ed 2d 616, 107 S Ct 1979). (ED Supp Mich, Detroit, F Baker v may implement Any person subject an act plan, plan has been affirmative action once approved by the crc. Even absent filed with and approval requirement §in like that found an subject employers are certain constraints plans. implementing ante, See affirmative action pp 144-145. validity requirements not for do
These prohibit but, measures, act to affirmative action prescribe merely rather, the manner which implemented. may Likewise, such measures mandatory approval § 210 adds while process adopting necessary step to the another plan, carrying it out a be said bar cannot prohibit any more than the affirmative action implementation undisputed requirements for other plan. fact, In of a valid affirmative action assumedly have been could Supreme United Court has that affirmative States stated measures, governmentally imposed action discrimination, of all elimination purpose” "core Fourteenth Amend ment, always are are constitutional duties harmon "related [that] ious; reconciling requires public employers them to act with extraordi Ed, 267, 277; nary Wygant Ct v Bd of 476 US 106 S care.” Jackson added). (1986) (emphasis L Ed 2d 260 Victoeson Opinion by Dissenting Brickley, *17 case, validated requested the crc it this had been so,
to do in far less time and with far less effort than it has taken to secure this Court’s pronouncement subject. on the
ii authority Act, Under take a to person’s employment sex into account an deci only clearly § 210, sion flows from allows adoption carrying of an out plan only approval. upon wording action The clear Legislature’s §of 210 evidences the intent to dis tinguish between that are approved and those that are not. An affirmative adopted may be "if and carried out plan is filed with the commission under rules of approves the commission commission plan.” plan may implemented, Therefore, a not be approved by if it is not filed with and not the crc. question Because there can be no that is mandatory, comply follows, then, it failure that to requirement statutory with the renders the affir People Koval, mative action void. See 371 (1963). 453, 459; Mich 124 NW2d 274 also See Municipal Jones v Bd, Officers Electoral 112 Ill App 926, 929-930; 3d 68 Ill Dec NE2d (1983). plan, though Therefore, an it may valid law, under federal civil is invalid under the Civil a flawed Act not it because is plan, employer but because the without is authority promulgate unapproved plan. such an importance of, for, and the sole reason implementing pursu- affirmative action measures plan, valid, ant to a if will serve as employment a rationale for to it that would otherwise the Civil action taken provisions
viоlate Act. As a rationale for the other- Mich Brickley, Dissenting discriminatory action, the wise John- claim. See a a discrimination defense pro- clearly only supra son, § at 626. Because implement approved authority an affirma- vides plan, Legislature not have could tive action unapproved plan a could also be intended majori- However, the valid defense to such claim. holding employer ty’s approved plan un- to use an allows an to a discrimination
as defense despite Rights Act, the fact under the Civil claim that, act, the under 210 of the same permitted implement in the was not ap- place. makes the first proval requirement Such a construction meaningless. §in 210 *18 III wording unambiguous Despite the clear and leading 210, un- § approved the an conclusion invalid, and legitimate not a defense to a discrimina- therefore majority Act, tion claim under the unapproved plan may abe concludes that an legitimate long as as the would defense rights valid under federal civil law.
A conceding re- While Act quires an obtain the implementing an affirmative action crc before plan, majority states that the act does unapproved plans, or to the make reference to unapproved plan. consequences utilization of an majority argues, Therefore, act is because the question, lies in "silent” on this answer interpretation law other of federal civil courts. Dissenting Opinion Brickley, majority correctly points out that unapproved Act does not mention affirma- plans, expressly
tive action and also does not employer may dictate that an not use an un- approved plan as a defense to a discrimination majority However, claim. concedes, as the also throughout plicit Legislature the act the has made ex- approved plans. Moreover,
reference to Legislature language altered the to re- §210 quire ap- the crc to take an active role in the proval ing plans, thereby reject- of affirmative action original wording § of 210 that would have implementation long allowed the of a as as disapprove the crc did not of it. 1975 HB 4055, change 20. A similar § was made to 705, § originally approval, did not mention 1975 HB § so that 705 now directs that the act 68(2), interpreted restricting imple- "shall not be as approved plans mentation of ... to eliminate dis- appropri- crimination and the effects thereof when (emphasis ate.” added). MCL MSA 3.548(705)(2) 37.2705(2); fact, In nowhere does the act make refer- present ence to a intended to "eliminate past practices discriminatory effects of or assure equal opportunity,” MCL 37.2210; 3.548(210), specifying ap- without that such a must be proved. clearly
While the act does not state the conse- quences implеmentation of the of an plan, clearly the act also does not state that *19 approved plan may be used as a defense to a explicit discrimination claim. Such an statement unnecessary explained would because, above, as only implementing the tion reason for affirmative ac- plan provide employer to a is to an with what that an However, a defense to a discrimination claim. unquestionably clear is that 210 states
employer may implement plan not a with- Mich Dissenting Brickley, obtaining approval by Therefore, the out crc. Rights say on the Act is "silent” that Civil the consequences subject to obtain of failure of the wording ignore explicit plan of is to a interpretation logical that flows § 210 of it. from
B prohibiting majority that an also states The using employer an from plan un- claim as defense a discrimination tion a purpose Rights "negates the of ci- the Civil Act der rights legislation af- and the liberal construction vil legislation.” pp Ante, 141-142.6 such remedial forded argue majority however, not, that The would require- any unquestioned other enforcement validity of for the an affirmative ment "negate” purpose would p example, majority notes, id., For as the Act. "temporary not in nature” is a that is not a be a defense a therefore cannot valid employer inability claim. The discrimination to a such an invalid as defense to use "negate” certainly does claim not discrimination purposes Likewise, Act. of the Civil only rely may that an on valid fact approved plan, i.e., a that crc, purposes inconsistent with the Rights Act either._ majority my also asserts construction of However, contrary support legislative history. of this
Act is to its assertion, legislative history, any majority but does not cite indicating support for affir cites executive directives instead several through disagree majority aсtion. with the 210§ mative I do not voluntary implementation Legislature encourage intended the affirmative action can only However, nothing plans. in the executive directives encourages voluntary negate the fact that § upon approval by the crc. *20 by Dissenting Opinion Brickley, J.
C
Finally,
interpreting §
rather
than
210 as writ-
majority
ten, the
looks to federal case law constru-
ing title VII to determine what constitutes a valid
Rights
under our Civil
Act.
By doing
majority
so, the
eliminates almost en-
tirely
approval requirement
the effect of the
quarrel
majority’s adop-
§ 210.7 I have no
with the
proof
tion of the order of
established
the United
Supreme
Douglas Corp
States
Court McDonnell
Green,
792;
v
(1973).
411 US
93 S Ct
However, the order of in a title VII case cannot be used to determine what factors validity entirely affect the of a under an Michigan act, different Civil Act. Pursu- implement, § 210, ant to cannot therefore cannot use as a defense to a discrimina- claim, tion an аffirmative action that was not approved by Douglas, the crc. Under McDonnell unapproved plan legiti- therefore, such an is not a mate defense to a discrimination claim under the Act. interpreting
Reliance on federal case law title inappropriate misleading VII is also because of the obvious differences between title VII and act, Act: unlike our title VII does explicitly permit voluntary affirmative action. 2000e-2(j) provides only Rather, 42 USC Nothing subchapter contained in this shall be require any interpreted employer, employment agency, ment organization, joint labor-manage- labor or subject subchapter
committee to this 7 According majority’s analysis, only significance to the remain ing defendant, plan by for failure to obtain of a the crc is that plaintiff, showing rather than the has the burden of requirements specified by valid under the United Court, Supreme regard States VII. title Mich Brickley, Dissenting or preferential any individual grant treatment race, color, religion, any group of the to sex, because origin or of such individual national
group
[Emphasis
....
added.]
language,
statutory
the issue be
this
Because of
Supreme
in United
Court
the
States
fore
United
Weber,
US
America v
of
Steelworkers
(1979),
to
2721;
voluntary Id. at action. . 216, 220. Rights explicitly VII,
Unlike our Act title voluntary permits only employer 210, if an obtains the but 3.548(210). The 37.2210; MSA
of the crc. MCL majority certainly does need to examine not Rights spirit of Act to determine whether permits Therefore, the issue it affirmative action. quite from the Court Weber was different before Though presented I not the issue quarrel herе. also do adoption majority’s factors, with the Supreme by States Court established United determining validity plan, Weber, for adoption by of those factors this Court cannot expense negating requirement the clear at § 210 of is that the use an affirmative action contingent approval by the crc. on affirmative plan may test, While a be valid under Weber legitimate title VII and therefore a defense clearly claim, the Weber factors alone do majority regard 8 This conclusion was reiterated Johnson, supra public employers in 627-630. at Dissenting Brickley, J. validity determine the of a under our Civil approval pursuant Act. Absent § an authority employ- has no to make an ment decision that would otherwise violate the provisions antidiscrimination of the Civil unapproved plan Thus, Act. is not a valid clearly legitimate cannot be a defense to a discrimination claim under the Civil Act. I Appeals. would affirm the decision of the Court of Riley JJ., concurred with Griffin, Brickley,