Elezovic v. Ford Motor Co.

697 N.W.2d 851, 472 Mich. 408

• Court: Michigan Supreme Court
• Decided: June 1, 2005
• Docket: Docket 125166
• Status: Published

Opinions

TAYLOR, C.J.

At issue in this case is (1) whether the Michigan Civil Rights Act (CRA)¹ provides a cause of action against an individual agent of an employer and (2) whether plaintiffs employer, Ford Motor Company, was entitled to a directed verdict in plaintiffs sexual harassment lawsuit against it.

We hold that an agent may be individually sued under § 37.2202(1) (a)² of the CRA. Thus, we overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), because it held to the contrary,³ and reverse the Court of Appeals judgment in favor of Daniel Bennett that followed Jager.

We also hold, consistently with the lower courts, that Ford was entitled to a directed verdict. Thus, we affirm the trial court and Court of Appeals judgments in favor of Ford.

I. FACTS AND PROCEEDINGS BELOW

Plaintiff filed a lawsuit in November 1999 pursuant to the CRA against Ford Motor Company and Daniel Bennett, a supervisor at Ford’s Wixom assembly plant where she worked. As relevant here, her claim was that she had been sexually harassed as a result of a hostile work environment.⁴ The CRA allows such a lawsuit against an employer.⁵

Plaintiffs lawsuit named Bennett as an individual defendant consistently with the then-controlling case of Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985),⁶ which held that individual supervisors could be liable under the CRA.⁷

Regarding the specifics in her complaint, plaintiff alleged that, while she was on the job in the summer of 1995, Bennett exposed himself to her while masturbating and requested she perform oral sex. Further, she claimed that after that he repeatedly continued to harass her by grabbing, rubbing, and touching his groin and licking his lips and making sexually related comments.

Before trial, defendants filed a joint motion in limine to exclude from evidence an unrelated, prior criminal misdemeanor conviction of Bennett for indecent exposure. Defendants pointed out that the incident did not occur on Ford property and involved non-Ford employees. Plaintiff, however, argued that the indecent exposure conviction was evidence of a scheme or plan Bennett had of exposing himself to women and that it provided notice to Ford that Bennett engaged in inappropriate sexual acts. The trial court ruled that the indecent exposure conviction was inadmissible with regard to Bennett under MRE 404(b)(1)⁸ because it was not offered for any purpose other than to show that he had a propensity to expose himself. The court also held it was inadmissible with regard to Ford pursuant to MRE 403⁹ because any probative value would be substantially outweighed by the danger of unfair prejudice.

The case was tried before a jury for three weeks. Plaintiff testified consistently with the allegations in her complaint against Bennett. While it was uncontested that she had not filed a formal written complaint of sexual harassment pursuant to Ford’s anti-harassment policy, plaintiff attempted to establish that Ford was otherwise aware, or on notice, of the sexual harassment for several reasons. She claimed that she told two first-line supervisors (friends of hers who were under Bennett in the chain of command) that Bennett had exposed himself to her, but admitted that she had pledged them to secrecy. She also introduced two letters her psychologist had written to the Wixom plant physician, one indicating that in his view plaintiff was descending into mental illness “[d]ue to the harassment she perceived from Mr. Bennett” and a second stating that plaintiff continued “to feel uncomfortable with Dan Bennett.” These letters were offered with a third letter from the same psychologist to the Wixom plant manager regarding complaints against a different coworker in which it was said “there has been harassment going on for the past year and a half at her Wixom plant job.” Also introduced was testimony from an employee to a Ford Labor Relations Department representative to the effect that the employee would remain on medical leave until someone did something about the situation between plaintiff and Bennett. Finally, reference was made to a letter from plaintiffs attorney (her son-in-law) to the Ford Labor Relations Department in which he asserted he might take legal action “to insure that our client [plaintiff] is not subjected to working in a hostile environment.”

At the close of plaintiffs proofs, defendants filed a joint motion for a directed verdict, arguing that plaintiff had not presented a prima facie case against them.¹⁰ Ford emphasized that plaintiff had not established that it had notice of the alleged sexual harassment by Bennett and, thus, it could not be held liable for any improper acts by him.

The trial court took the joint motion under advisement, with defendants continuing to present their cases to the jury. Bennett testified that he had not sexually harassed the plaintiff and that her claims were false. Ford presented evidence showing that the only time plaintiff had ever filed a sexual harassment complaint was in 1991, involving a UAW committeeman, and that none of the several grievances and complaints plaintiff filed against Bennett had mentioned sexual harassment. Rather, with regard to Bennett, her complaints concerned having her shift changed from days to afternoons and disputes regarding overtime. She also filed a complaint alleging that a female coworker had physically threatened her.

Upon the close of defendants’ proofs, the trial court granted directed verdicts to the defendants. The trial court held that plaintiff had failed to establish a prima facie case of sexual harassment with regard to either defendant and, in particular, found that Ford could not be liable because it had no notice of Bennett’s alleged harassment.

Plaintiff, asserting that she had established a prima facie case against Bennett and Ford, appealed to the Court of Appeals. That Court, however, affirmed the orders of the trial court in a published opinion.¹¹ In ruling for Bennett, the majority in Elezovic relied on the then-recent holding in Jager, supra at 485, that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights.” The Jager Court had reached its conclusion by relying largely on federal court holdings that under Title VII of the federal civil rights act, the federal analogue to our CRA, there is no individual liability.¹² While it was obligatory that the majority, in Elezovic follow Jager pursuant to MCR 7.215(J)(1), the majority indicated at the same time that, but for that court rule, it would have reached the opposite result.¹³ It was the majority’s view that Jager was wrongly decided simply because it was not consistent with the actual language of our CRA, which it concluded made agents individually liable. Moreover, it believed Jager was inconsistent with Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as recognizing that an individual may be held liable for sexual harassment under the CRA.¹⁴

With regard to the directed verdict for Ford, the Court -of Appeals rejected plaintiffs claim that her evidence regarding notice had been sufficient to enable her to reach the jury. The Court held that plaintiffs report of Bennett’s conduct to her supervisors did not constitute actual notice to Ford because of her request at the same time that this information not be conveyed to their supervisor or other appropriate persons. Elezovic v Ford Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003). As for the letters that had been sent to Ford, the Court of Appeals concluded that these also did not provide notice because, importantly, none of them referred to sexual conduct. The Court held that this fact, when viewed in the context that plaintiffs previous harassment complaints had not been sexual in nature, but were explicitly nonsexual concerning Bennett and others (with the exception of the 1991 complaint against a UAW committeeman that plaintiff did not rely on as part of her case), meant Ford would not reasonably have been put on notice. Id. at 195. Finally, the Court also affirmed the trial court’s decision to exclude evidence regarding Bennett’s indecent exposure conviction. It was the Court’s conclusion that plaintiff failed to establish that the evidence was offered for a proper purpose because Bennett’s act of indecent exposure outside the workplace was not sufficiently similar to sexually harassing an employee in the workplace to establish a common plan, scheme, or system. Id. at 206. The Court further concluded that the trial court had not abused its discretion, concerning defendant Ford, in holding that the probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice.¹⁵ Id. at 207-208.

Plaintiff applied for leave to appeal in this Court, and we granted leave to appeal and directed the parties to include among the issues briefed whether a supervisor engaging in activity prohibited by the Michigan Civil Rights Act, MCL 37.2101 et seq., may be held individually liable for violating a plaintiffs civil rights. 470 Mich 892 (2004).

II. STANDARDS OF REVIEW

We review de novo the question whether our CRA authorizes a cause of action against an individual agent for workplace sexual harassment because it is a question of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). In reviewing the statute, if its language is clear, we conclude that the Legislature must have intended the meaning expressed, and the statute is enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).

We also review de novo a trial court’s ruling regarding a motion for a directed verdict, viewing the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 707-708; 565 NW2d 401 (1997).

Finally, the decision whether to admit or exclude evidence is reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

III. INDIVIDUAL AGENT LIABILITY UNDER THE CRA

The CRA prohibits an employer from discriminating on account of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103(i) (“Discrimination because of sex includes sexual harassment.”). As previously set forth, the statute expressly defines an “employer” as a “person,” which is defined under MCL 37.2103(g) to include a corporation, and also states that an “employer” includes an “agent of that person.” MCL 37.2201(a).¹⁶

This statutory language uncontroversially means that Ford Motor Company is an “employer” under the CRA. What is contested is whether an agent of the corporation is also subject to individual liability.

Bennett and Ford have argued that the statutory definition of “employer,” which includes an “agent of that person,” should not be read as providing individual liability because (1) inclusion of the term “agent” in the statutory definition of “employer” operates solely to confer vicarious liability on the employer, (2) federal courts of appeals have all held that Title VII — the analogous federal sexual discrimination statute with its similar definition of “employer” — does not allow individual liability, and (3) the amendment history of our CRA suggests a different intention on the part of the Legislature.

Regarding the first of these arguments, that this statute should not be read to expand the class of potential defendants to include agents, defendants assert that Chambers, supra at 310, supports this narrowing conclusion because it held that the inclusion of an “agent” within the definition of an “employer” in MCL 37.2201(a) served to confer vicarious liability on the agent’s employer. We disagree with this analysis. While Chambers held that this language establishes vicarious liability, our discussion did not limit it to that function. The reason is that, when a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers, supra at 320, that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent.¹⁷

With respect to defendants’ second argument, which is effectively that we should piggyback on the rationale federal courts have used with Title VII,¹⁸ defendants refer us to numerous federal decisions that, on the basis of the “policy” and “object” of Title VII rather than what the statute actually says, have read Title VII to preclude individual liability.¹⁹ This Court has been clear that the policy behind a statute cannot prevail over what the text actually says. The text must prevail. In fact, in Chambers, when an invitation to follow “policy” over “text” was presented with regard to the CRA, we said:

We are many times guided in our interpretation of the Michigan Civil Rights Act by federal court interpretations of its counterpart federal statute. However, we have generally been careful to make it clear that we are not compelled to follow those federal interpretations. Instead, our primary obligation when interpreting Michigan law is always “to ascertain and give effect to the intent of the Legislature,... ‘as gathered from the act itself.’ ”... [W]e cannot defer to federal interpretations if doing so would nullify a portion of the Legislature’s enactment. [Chambers, supra at 313-314 (citations omitted).]

As in Chambers, we again decline to follow the tendered “policy” over “text” federal court interpretations of Title VII for the same reason: it would be contrary to the very wording of our CRA. Because MCL 37.2201(a) provides that an “employer” includes an “agent” of the employer, an agent can be held individually liable under the CRA. ²⁰

Moreover, several federal courts in Michigan have anticipated our holding that, under our CRA, individual agent liability exists even if it did not exist under Title VII. This can be seen in Hall v State Farm Ins Co, 18 F Supp 2d 751, 764 (ED Mich, 1998), in which the United States District Court for the Eastern District of Michigan explained:

ELCRA [Elliot-Larsen Civil Rights Act] covers any employer “who has 1 or more employees.” Mich. Comp. Laws § 37.2201(a). Thus, ELCRA undeniably envisions placing liability on individuals, such as two-member business entities where one person is the principal and the other person serves as the employee. Moreover, ELCRA’s remedy provision authorizes “person[s] alleging a violation of this act [to] bring a civil action for appropriate injunctive relief or damages, or both,” with “damages” being awarded for an “injury or loss caused by each violation of this act, including reasonable attorney’s fees.” Mich. Comp. Laws §§ 37.2801(1), (3). These ELCRA remedies further distinguish it from Title VII because damages can be obtained from individuals as well as employers.

Similarly, another judge of the same federal district court also questioned the Jager Court’s conclusion that individual liability did not exist under Michigan’s CRA, stating that

the language “includes an agent of that employer,” could, under principles of strict statutory construction, well be read as extending liability to individuals. Otherwise, this phrase is merely surplusage, as it adds nothing to the definitional scope of “employer,” which itself defines the term “employer” as a person. [United States v Wayne Co Comm College Dist, 242 F Supp 2d 497, 507 nil (ED Mich, 2003).]

[21]

We conclude, then, that while federal courts have the power to construe Title VII as they will, that does not compel us to follow them, especially if the language being construed is at loggerheads with the purported policy.

With respect to the third argument regarding the amendment history of our CRA, defendants assert that it precludes a finding of individual liability. They advance this by positing that when the CRA was first enacted in 1976, it defined “employer” to mean “a person who has 4 or more employees, and includes an agent of that person.” 1976 PA 453. This meant, as defendants read it, that an agent could not be individually liable because the CRA did not apply at all unless there were at least four employees. With that predicate of no agent liability under the 1976 act understood, they then turn to the amended statute, which reflects the 1980 amendment²² that broadened the protection of the CRA by sweeping under its aegis companies with only one employee, but left unchanged the definition of “employer” to include an “agent,” and argue that even though the old theory of nonliability of agents cannot be sustained under the new language, we should read it in anyway. This we cannot do. The Legislature is held to what it said. It is not for us to rework the statute. Our duty is to interpret the statute as written. The binding nature of this responsibility was reiterated by this Court recently in Lansing Mayor v Pub Service Comm, 470 Mich 154, 161; 680 NW2d 840 (2004), in which we said:

Our task, under the Constitution, is the important, but yet limited, duty to read and interpret what the Legislature has actually made the law. We have observed many times in the past that our Legislature is free to make policy choices that, especially in controversial matters, some observers will inevitably think unwise. This dispute over the wisdom of a law, however, cannot give warrant to a court to overrule the people’s Legislature.

Thus, what this comes down to is that perhaps the Legislature’s policy choice can be debated, but the judiciary is not the constitutional venue for such a debate. The Legislature is the proper venue. It is to that body that the defendants should make their argument. Accordingly, we reject the claim that the amendment history of our CRA precludes a finding of individual liability where the actual wording of the statute as currently written unambiguously provides that an agent may be individually liable.²³

Because we find that (1) inclusion of an “agent” within the definition of the word “employer” is not limited to establishing vicarious liability for the agent’s employer, but in fact means agents are considered employers, (2) federal decisions construing Title VII should not be followed because it would lead to a result contrary to the text of our CRA, and (3) the amendment history of the CRA does not preclude a finding of individual liability, we conclude that liability under our CRA applies to an agent who sexually harasses an employee in the workplace.

IV PLAINTIFF’S CLAIM AGAINST FORD

It is the case in this area of the law that employer responsibility for sexual harassment can be established only if the employer had reasonable notice of the harassment and failed to take appropriate corrective action. Chambers, supra at 312. In Chambers, we also held that “notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.” Id. at 319. Thus, actual notice to the employer is not required; rather, the test is whether the employer knew or should have known of the harassment. Radtke, supra at 396 n 46.²⁴ As is apparent, the issue is whether Ford knew or reasonably should have known, under the totality of the circumstances, of Bennett’s harassment of plaintiff.

Plaintiff claims she made a prima facie showing of notice when she told two low-level supervisors of Bennett’s exposure, and that Ford was also put on notice by the letters her psychologist and son-in-law sent to Ford. We agree with the trial court and the Court of Appeals that plaintiffs notice evidence was insufficient to allow the case to be submitted to the jury.

We first consider whether plaintiffs telling two low-level supervisors in confidence that Bennett had exposed himself to her constituted notice to Ford. We find that it did not. It must be recalled that, if an employee is sexually harassed in the workplace, it is that employee’s choice whether to pursue the matter. In other words, the victim of harassment “owns the right” whether to notify the company and start the process of investigation. Until the employee takes appropriate steps to start the process, it is not started. As stated in Perry v Harris Chernin, Inc, 126 F3d 1010, 1014 (CA 7, 1997):

[T]he law against sexual harassment is not self-enforcing. A plaintiff has no duty under the law to complain about discriminatory harassment, but the employer in a case like this one will not be liable if it had no reason to know about it.

Thus, when an employee requests confidentiality in discussing workplace harassment, and the request for confidentiality is honored, such a request is properly considered a waiver of the right to give notice.²⁵

Thus, we conclude that plaintiffs telling two supervisors in confidence about one instance of Bennett’s improper conduct does not constitute notice, notwithstanding Ford’s policy that required the supervisors to report the information to human resources personnel.²⁶ Our holding is consistent with other courts that have considered this issue. For example in Hooker v Wentz, 77 F Supp 2d 753, 757-758 (SD W Va, 1999), the court held there was no notice to the employer where the plaintiff confided in her immediate supervisor about sexual advances but asked that he not report it to others. And, in Faragher v Boca Raton, 111 F3d 1530 (CA 11, 1997), rev’d on other grounds 524 US 775 (1998), the court held that, for vicarious-liability purposes, notice to a manager does not constitute notice to management when the complainant asks the manager, as a friend, to keep the information confidential.

With regard to the letters that were sent to Ford, we concur with the Court of Appeals that where the evidence showed that plaintiff had filed numerous grievances and labor relations complaints over the years against Bennett and others that were unrelated to sexual harassment,²⁷ the mentioning of the word “harassment” alone or the phrase “hostile environment” in the letters was insufficient to give Ford notice that sexual harassment was being claimed. This is especially true where plaintiff was aware, and the employer was aware that she was aware, of the terminology at issue because she had previously filed a written complaint asserting that her UAW committeeman had sexually harassed her.²⁸ Accordingly, even viewing the evidence in a light most favorable to plaintiff, we conclude that Ford was entitled to a directed verdict because, under the totality of the circumstances, a reasonable employer would not have been on notice of a substantial probability that sexual harassment was occurring.²⁹

Plaintiff argues in the alternative that, even if her evidence of notice to Ford was insufficient, it would have been sufficient if the trial court had not erroneously granted the motion in limine that precluded introduction of evidence of Ford’s knowledge of Bennett’s indecent exposure conviction. This conviction had been expunged before the trial in this matter. We conclude that the trial court’s ruling was not an abuse of discretion.

First, we note that MCL 780.623(5) provides:

Except as provided in subsection (2) [pertaining to certain law enforcement purposes], a person, other than the applicant, who knows or should have known that a conviction was set aside under this section and who divulges, uses, or publishes information concerning a conviction set aside under this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.

Pursuant to this statute, evidence of Bennett’s expunged misdemeanor conviction was not admissible. While this statute clearly made evidence of the conviction inadmissible, that leaves the question whether the facts that led to the conviction, which occurred while Bennett was not at work and involved individuals with no connection to Ford, were admissible to establish that Ford knew or should have known that Bennett was sexually harassing plaintiff. The trial court ruled that the evidence was inadmissible because the prejudice to Ford would substantially outweigh any probative value the evidence might have. The trial court did not abuse its discretion.³⁰ Indeed, we question how Ford’s knowledge of Bennett’s improper off-site behavior involving nonemployees could constitute notice to Ford that plaintiffs work environment was sexually hostile. Context is important; improper behavior of a given type is not an inevitable predictor of other types of improper behavior especially where, as here, they occur at entirely different locales and under different circumstances. Tomson v Stephan, 705 F Supp 530, 536 (D Kan, 1989).

And, as we stated in Chambers, supra at 315-316, an employer can be vicariously liable for a hostile work environment only if it “failed to take prompt and adequate remedial action upon reasonable notice of the creation of a hostile [work] environment....” (Emphasis added.) Here, the trial court and the Court of Appeals properly held that plaintiffs notice evidence was insufficient to allow the case to be submitted to the jury.

v CONCLUSION

Because employers can be held liable under the CRA, and because agents are considered employers, agents can be held liable, as individuals, under the CRA. Thus, we accept the invitation of the Court of Appeals and reverse that part of the Court of Appeals opinion that relied on Jager in holding that agents may not be held individually liable under our CRA.

We affirm the judgment of the Court of Appeals that Ford was entitled to a directed verdict and that the trial court’s pretrial ruling on the motion in limine was not an abuse of discretion.

Reversed in part, affirmed in part, and remanded to the circuit court for further proceedings regarding Bennett and consistent with this opinion.

Corrigan, Young, and Markman, JJ., concurred with Taylor, C.J.

1 MCL 37.2101 et seq.

2 MCL 37.2202(l)(a) provides:

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.

3 Jager had concluded that “a supervisor engaging in activity prohibited by the CRA may not be held individually hable for violating a plaintiffs civil rights.” Id.

4 As set forth in Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993), the five elements necessary to establish a prima facie case of sexual harassment based on a hostile work environment are:

(1) the employee belonged to a protected group;

(2) the employee was subjected to communication or conduct on the basis of sex;

(3) the employee was subjected to unwelcome sexual conduct or communication;

(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and

(5) respondeat superior. [Emphasis added.]

See also Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000). Respondeat superior liability exists when an employer has adequate notice of the harassment and fails to take appropriate corrective action. Id. at 312.

5 M Civ JI 105.10, Employment Discrimination — Sexual Harassment.

6 Jager overruled Jenkins while plaintiffs appeal was pending in the Court of Appeals.

7 The CRA states that an “employer” includes an “agent” of the employer.

MCL 37.2201(a) provides: “ ‘Employer’ means a person who has 1 or more employees, and includes an agent of that person.” (Emphasis added.)

MCL 37.2103(g), in turn, provides: “ ‘Person’ means an individual, agent, association, [or] corporation

8 MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

9 MRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

10 MCR 2.515 provides: “A party may move for a directed verdict at the close of the evidence offered by an opponent.”

11 Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d 776 (2003).

12 The Jager panel noted that its conclusion that individuals could not he sued under our CRA was consistent with federal court rulings such as Wathen v Gen Electric Co, 115 F3d 400 (CA 6, 1997), in which the Sixth Circuit Court of Appeals determined, consistently with numerous other federal courts of appeals, there was no individual liability under Title VII of the federal civil rights act.

13 Under MCR 7.215(J)(1) a panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1,1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals.

The judges of the Court of Appeals were polled pursuant to MCR 7.215(J), but a conflict resolution panel was not convened because a majority of the judges opposed convening such a panel. 259 Mich App 801 (2003).

14 In making this point, the majority noted that Chambers held that certain language in the CRA “ ‘allows this Court to determine whether the sexual harasser’s employer, in addition to thé sexual harasser himself, is to be held responsible for the misconduct.’ Chambers, supra at 320 (emphasis in original).” Elezovic, supra at 201.

15 That is, the marginally probative evidence could be given undue or preemptive weight by the jury.

16 These legislatively provided definitions are binding on this Court. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).

17 Justice Weaver states in her dissent that we offer “no clear reason for rejecting the conclusion that the phrase ‘agent of the employer’ denotes respondeat superior liability.” Post at 438. But, as our discussion above makes clear, we do not reject this conclusion. Rather, we hold that the Legislature’s use of the words “agent of the employer” denotes respondeat superior liability and also that individual liability may exist under the statute.

Justice Cavanagh argues in his dissent that

the statute means that an employer is a person who has one or more employees and this includes an agent of the employer. This means that an employer still falls within the purview of the statute even if its “employees” are mere agents, such as family members who are helping with the business. To determine employer liability, agents are considered employees. [Post at 432.]

We believe Justice Cavanagh is misreading the statute. The statute says an agent can be an employer — not an employee. The reference in the statute to “agent” modifies “employer.” It does not expand the scope of “employee.” This is evident from the parallel verbs:

“Employer” means a person who has 1 or more employees, and includes an agent of that person. [MCL 37.2201(a) (emphasis added).]

18 Title VII defines “employer” to mean “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person----”42 USC 2000e(b). (Emphasis added.) Thus, while the definition of “employer” under Title VII is similar to that of our CRA, as pointed out in Chambers, unlike the federal law, the CRA expressly establishes a cause of action for sexual harassment and employer liability based on traditional agency principles. Chambers, supra at 311, 315-316, 326.

19 For example, in Wathen, supra at 405, the Sixth Circuit Court of Appeals determined there was no individual liability under Title VII of the federal civil rights act, even though a reading of the language contained in Title VII would lead to the conclusion that an individual could, in fact, be held hable for acts of discrimination. The Sixth Circuit, however, citing the “object” and “policy” behind Title VII instead of its language, ultimately rendered a decision in conflict with that language. Similarly, in Tomka v Seiler Corp, 66 F3d 1295, 1314 (CA 2, 1995), the Second Circuit ruled individual liability was not available under Title VII even though what it grudgingly referred to as “a narrow, literal reading of the agent clause” in Title VII “does imply that an employer’s agent is a statutory employer for purposes of [Title VII] liability....” As in Wathen, the Second Circuit went on to read Title VII not on the basis of its language, but on the basis of what it viewed as the real “intentions of the legislators.”

20 Justice Weaver states in her dissent that our holding may be a “shallow victory” for plaintiffs because sexual harassers may not be “agents” if they were acting outside the scope of their authority. We neither agree nor disagree with any aspect or premise of this proposition, and do not address it here, because this issue has not been raised or argued by the parties. Further, whether or not some later holding by this Court may prove to be a “shallow victory” is in sharp contrast with the “certain defeat” that plaintiffs in sexual harassment cases against individuals would suffer under Justice Weaver’s “common sense” interpretation of the statute. Post at 439. Justice Weaver further claims that under our opinion a supervisor, but not a coemployee, may face individual liability. This also is a proposition that has no basis in our opinion. All we have said is, if the individual was an agent of the employer, individual liability may exist. Whether a distinction can be drawn under the statute between supervisory and nonsupervisory employees has again not been raised or argued in this case.

21 Millner v DTE Energy Co, 285 F Supp 2d 950, 964 n 16 (ED Mich, 2003), also expressed the same qualms as those indicated in Wayne Comm College.

We also note that, in Poches v Electronic Data Systems Corp, 266 F Supp 2d 623, 627 (ED Mich, 2003), and Rymal v Baergen, 262 Mich App 274, 296-297; 686 NW2d 241 (2004), the courts distinguished Jager and allowed retaliation claims against individuals to go forward because the antiretaliation provision of the CRA, MCL 37.2701, is broader than the antidiscrimination provision of the CRA, MCL 37.2202.

22 In 1980, the Legislature amended the statute to say that an “employer” means “a person who has 1 or more employees, and includes an agent of that person.” 1980 PA 202.

23 Notwithstanding Justice Weaver’s view that the Legislature could have acted in a more “straightforward manner” in communicating its intentions, we cannot think of a more clear-cut statement on its part concerning liability under the statute. While Justice Weaver would prefer to rely ón her own “common sense,” post at 439, in interpreting “employer” to exclude from coverage individual employees, the majority would prefer to rely on the statute itself, which states that “[e]mployer... includes an agent of that person.” It is a caricature of the concept of “judicial restraint” (which concept she invokes on her own behalf, post at 439) for Justice Weaver to assert that her “common sense” should he allowed to override the language of the statute.

24 Justice Weaver agrees with the majority that an employer must have notice before it can be hable. Post at 441. But, she later arguably undercuts this by citing Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct 2399; 91 L Ed 2d 49 (1986) (a case construing Title VII), for the proposition that the “absence of notice to an employer does not necessarily insulate that employer from liability.” As for this language from Meritor, we note that it has been interpreted to mean that “employers are hable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Equal Employment Opportunity Comm v Hacienda Hotel, 881 F2d 1504, 1515-1516 (CA9,1989) (emphasis added). Thus, the language from Meritor should be understood to mean actual notice is not required. This is consistent with Michigan law because the test is whether the employer knew or should have known of the harassment. Radtke, supra at 396 n 46.

25 An employer, of course, remains free to discipline a supervisor for failing to report a sexual harassment complaint to the proper persons as required by the employer’s policy. But, that is a different issue, and it does not mean that a confidential report of sexual harassment to a supervisor constitutes notice to the employer.

26 Accord Hooker v Wentz, 77 F Supp 2d 753, 757-758 (SD W Va, 1999) (where the plaintiff confided in her immediate supervisor about sexual advances, but asked that he not report it to others, there was no notice to the employer).

27 There were several disputes regarding plaintiffs shift assignment.

28 Justice Weaver’s dissent advocates what might be characterized as a “near miss” theory of notice, i.e., if a male employee had problems at work with female employees or was accused of harassing someone in a nonsexual way, this somehow constitutes notice that such an employee was a sexual harasser. The perils of such an approach are apparent and we decline to adopt it.

29 A directed verdict is proper where no prima facie showing of liability is made. Locke v Pachtman, 446 Mich 216, 222-223; 521 NW2d 786 (1994).

30 See, e.g., Tomson v Stephan, 705 F Supp 530, 536 (D Kan, 1989) (excluding evidence that the defendant made sexual advances outside the employment setting because the advances were not made toward an employee); Longmire v Alabama State Univ, 151 FRD 414, 417 (MD Ala, 1992) (the defendant’s “activities outside the work place are irrelevant” to determining the existence of a hostile work environment).