Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman
FILED JULY 26, 2005 MILISSA MCCLEMENTS,
Plaintiff-Appellee/Cross-Appellant,
v No. 126276
FORD MOTOR COMPANY,
Defendant-Appellant/Cross-Appellee. _______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to resolve two
questions: (1) whether a common-law claim of negligent
retention can be premised on sexual harassment in light of
the remedies provided by the Civil Rights Act (CRA), MCL
37.2101 et seq.; and (2) whether an employer can be held
liable under the CRA for sexual harassment against a non-
employee. The trial court granted summary disposition to
defendant on both issues, ruling that there was
insufficient notice to Ford to support the negligent
retention theory, and that plaintiff could not pursue a
claim under the CRA without demonstrating at least a “quasi-employment” relationship. The Court of Appeals
affirmed with respect to the CRA claim, but reversed with
respect to plaintiff’s negligent retention claim. We hold
that: (1) a common-law claim for negligent retention cannot
be premised upon workplace sexual harassment; and (2)
because plaintiff has failed to establish a genuine issue
of material fact that defendant affected or controlled the
terms, conditions, or privileges of her employment, she
cannot bring a claim against defendant under the CRA.
Accordingly, we affirm in part and reverse in part the
judgment of the Court of Appeals, and reinstate the trial
court’s order of summary disposition in favor of defendant.
I. FACTS AND PROCEDURAL HISTORY
Defendant Ford Motor Company hired AVI Food Systems to
operate three cafeterias at its Wixom assembly plant.
Plaintiff Milissa McClements was hired by AVI as a cashier
at the Wixom plant in March 1998.1 Plaintiff testified that
Daniel Bennett, then a superintendent in the predelivery
department of the plant, had in November 19982 invited her
1 Within a month, plaintiff filed a complaint with AVI alleging that she was sexually harassed by a non-AVI contractor. After an investigation, AVI had the offending nonemployee removed from its premises. 2 The record is replete with confusion over when the alleged incidents took place. In her complaint, plaintiff alleged that the incidents with Bennett occurred in (continued…)
on “three or four” occasions to meet him at a local fast
food restaurant. On each occasion, plaintiff rebuffed his
invitation. According to plaintiff, Bennett “seemed very
persistent, like he didn’t understand that I wasn’t
interested.” Plaintiff acknowledged that, at this point,
Bennett was polite, and there was no testimony that he used
sexual or foul language. Bennett denies making any such
invitations.
Plaintiff described two additional encounters with
Bennett that occurred during this same time period. During
the first of these encounters, Bennett allegedly entered
the cafeteria while it was closed, and approached plaintiff
from behind. Plaintiff testified that “I was facing the
opposite way. He came up and just grabbed me and turned me
around and stuck his tongue in my mouth.” After “a few
days,” plaintiff allegedly had a second encounter with
Bennett in the closed cafeteria. According to plaintiff,
Bennett again grabbed her from behind, attempted to stick
his tongue in her mouth, and stated, “Come on, I know you
want it. Isn’t there somewhere we can go and have sex?”
Plaintiff refused this advance, and Bennett left the
(…continued) September 1998. However, in her deposition, plaintiff testified that the incident could have taken place in late November, early December 1998, because she “seem[ed] to remember it being Thanksgiving . . . .”
cafeteria. Plaintiff allegedly reported the incidents to
her union steward, but claims that she was advised that if
she reported the incident to defendant, it would “turn
around and stab you in the back and you [would] end up
losing your job.” Plaintiff did not report the incident to
either defendant or AVI until the instant lawsuit was
filed.
In 2000, plaintiff was approached by another Ford
employee, Justine Maldonado,3 who claimed that she had also
been sexually harassed by Bennett. Specifically, Maldonado
claimed that in January or February 1998, Bennett exposed
himself to her and demanded oral sex in the parking lot of
the Wixom plant. Bennett also allegedly followed Maldonado
in his car, got out after she had stopped at a floral shop,
and reached into her car and tugged on her blouse. In
late-October 1998, Maldonado told Joe Howard, her uncle and
a production manager at Wixom, about the incidents.4 During
“the last couple days” in October, Maldonado told David
Ferris, a former Ford superintendent who was on temporary
3 In a separate action by Maldonado, we directed oral argument on whether to grant Maldonado’s application for leave to appeal or take other peremptory action permitted by MCR 7.302(G)(1). Maldonado v Ford Motor Co, 471 Mich 940 (2004). 4 Howard testified that his conversation with Maldonado about the alleged harassment did not take place until October 1999.
assignment to her union, about the incidents. Maldonado
testified that she spoke with Ferris just before undergoing
knee surgery on November 2, 1998. Ferris testified that
“two or three days” later, he confronted Bennett about
Maldonado’s accusations. The next day, Ferris informed
Jerome Rush, Wixom’s director of labor relations, about the
alleged incidents of sexual harassment. Ferris testified
that the conversation lasted a minute “at the most.” Rush
allegedly told Ferris that he “need not be involved in
these types of issues” and took no further action.
Even after learning of the Maldonado incidents,
plaintiff did not come forward with her allegations.
However, plaintiff’s attitude changed after Maldonado
informed her in August 2001 that Bennett had exposed
himself to three teenage girls. In 1995, Bennett was
convicted of misdemeanor indecent exposure, for exposing
himself to three teenage girls on I-275 while he was
driving a company car. Defendant was aware of the
incident, because the police determined Bennett’s identity
by tracing the car through Ford.5
5 Bennett’s conviction was expunged by the district court in November 2001. Before granting summary disposition to defendant, the trial court granted defendant’s motion to strike all references to the conviction from the complaint.
After learning about the indecent exposure arrest and
conviction, plaintiff filed the instant lawsuit in
September 2001. Plaintiff claimed that defendant: (1)
negligently retained Bennett, whom it knew had a propensity
to sexually harass women; and (2) breached its obligation
under the CRA to prevent Bennett from sexually harassing
her.
The trial court granted defendant’s motion for summary
disposition. First, the trial court found that there was
no evidence that defendant knew of Bennett’s propensity to
sexually harass women in the workplace. Maldonado’s
complaints to her uncle and friend were not sufficient to
give defendant notice of Bennett’s sexually harassing
behavior and the 1995 conviction alone is insufficient to
establish that propensity. Thus, defendant could not be
held liable under the negligent retention theory. Second,
the trial court found that plaintiff as a nonemployee could
not hold defendant liable under the CRA. However, even if
defendant were potentially liable under the CRA, it could
not be held liable under these circumstances, because its
higher management was never made aware of the allegedly
sexually harassing behavior. In an unpublished opinion,
the Court of Appeals affirmed in part and reversed in part
the judgment of the trial court. Unpublished opinion per
curiam of the Court of Appeals, issued April 22, 2004
(Docket No. 243764). The Court of Appeals held that
defendant’s knowledge of the indecent exposure arrest and
Maldonado’s allegations created a genuine issue of material
fact whether defendant “knew or should have known of
Bennett’s sexually derogatory behavior toward female
employees.” However, the Court of Appeals also applied the
“economic reality test,” Ashker v Ford Motor Co, 245 Mich
App 9, 14; 627 NW2d 1 (2001), and held that defendant was
not plaintiff’s employer. As a result, the Court of
Appeals concluded that plaintiff could not maintain a CRA
complaint against an entity that is not her employer. This
Court granted defendant’s application for leave to appeal,
as well as plaintiff’s application for leave to file a
cross-appeal. 471 Mich 937 (2004).
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for
summary disposition. Kreiner v Fischer, 471 Mich 109, 129;
683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests
the factual support of a plaintiff’s claim. Spiek v Dep’t
of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Summary disposition is only permitted if the evidence,
while viewed in a light most favorable to the plaintiff,
fails to establish a claim as a matter of law. Wilkinson v
Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review de
novo the questions whether the CRA displaces a common-law
claim for negligent retention based upon sexual harassment
in the workplace and whether an employer can be held liable
under the CRA for sexual harassment against a nonemployee
because they are questions of law. Morales v Auto-Owners
Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849
(2003).
III. ANALYSIS
The issue in this case is not whether Bennett has
engaged in reprehensible conduct either inside or outside
the workplace. Rather, the issues are: (1) whether
defendant negligently retained Bennett as a supervisor as
of the time Bennett allegedly sexually harassed plaintiff,
despite the fact that it knew or should have known of his
propensity to sexually harass women; and (2) whether
defendant is responsible under the CRA for failing to
prevent sexual harassment of plaintiff even though
plaintiff was not a direct employee of defendant.
A. NEGLIGENT RETENTION CLAIM
Plaintiff’s first theory is that defendant negligently
retained Bennett as a supervisor after learning of his
propensity to sexually harass women. In general, an
employer is not responsible for an intentional tort in the
workplace committed by its employee acting outside the
scope of employment. Martin v Jones, 302 Mich 355, 358; 4
NW2d 686 (1942). However, this Court has previously
recognized an exception to this general rule of liability
when the employer “‘knew or should have known of his
employee’s propensities and criminal record before
commission of an intentional tort by [that] employee
. . . .’” Hersh v Kentfield Builders, Inc, 385 Mich 410,
412; 189 NW2d 286 (1971) (citation omitted). Plaintiff
argues that defendant knew of Bennett’s “propensity” to
engage in sexually harassing behavior because of: (1)
Bennett’s 1995 indecent exposure conviction; and (2)
Maldonado’s complaints to defendant’s supervisor (Howard)
and labor relations representative (Rush) concerning
Bennett’s harassment. Plaintiff concludes that defendant
breached its duty of reasonable care by retaining Bennett
despite its knowledge of his previous actions. The Court
of Appeals held that whether defendant “knew or should have
known” of Bennett’s propensities was a question of fact for
the jury.6
6 Defendant argues that the Court of Appeals improperly allowed the jury to resolve the issue of whether defendant had a duty towards plaintiff. We agree that whether a duty exists to a particular plaintiff is a question for the court. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500-501; 418 NW2d 381 (1988). An employer’s duty is (continued…)
However, in those cases in which we have held that an
employer can be held liable on the basis of its knowledge
of an employee’s propensities, the underlying conduct
comprised the common-law tort of assault. See Hersh, supra
at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382
(1951). In the instant case, however, the entire premise
for plaintiff’s negligent retention claim is the
statutorily based tort of sexual harassment. Before
passage of the CRA, Michigan did not provide a common-law
remedy for workplace discrimination. Pompey v Gen Motors
Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiff’s
protections against being sexually harassed in the
workplace are wholly creatures of statute. “‘Where a
statute gives new rights and prescribes new remedies, such
remedies must be strictly pursued; and a party seeking a
remedy under the act is confined to the remedy conferred
(…continued) to exercise reasonable care in selecting and retaining its employees. However, it is the province of the jury to determine whether an employer has breached that duty by retaining the employee in question. In order for the jury to determine whether an employer has breached this duty, it must first determine whether the employer “knew or should have known” that its employee had a propensity to engage in the conduct that caused the injury to the plaintiff. The propensity at issue in the instant case is an alleged propensity to sexually harass women. Because plaintiff’s exclusive remedy for a claim based on sexual harassment is the CRA, there is no question of fact for the jury and, therefore, summary disposition was appropriate.
thereby and to that only.’” Monroe Beverage Co, Inc v
Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997),
quoting Lafayette Transfer & Storage Co v Pub Utilities
Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA
provides the right to be free from sexual harassment, MCL
37.2103(i), and accords an aggrieved worker the remedy of
“a civil action for appropriate injunctive relief or
damages, or both.” MCL 37.2801(1). Plaintiff’s remedy,
then, for any act of sexual harassment is limited to those
provided by the CRA. Accordingly, there is no common-law
claim for negligent retention in the context of workplace
sexual harassment.7
Plaintiff invokes MCL 37.2803, which states that the
CRA “shall not be construed to diminish the right of a
person to direct or immediate legal or equitable remedies
in the courts of this state.” However, contrary to the
dissent’s theory, post at 7, this statutory language does
not allow a worker to bring a CRA claim under the guise of
7 We note defendant’s assertion that the Hersh rule is contrary to public policy concerning the rehabilitation of first-time offenders. According to defendant, Hersh encourages employers to refuse to hire anyone who was ever convicted of even a misdemeanor, for fear that they might later be held liable for any conduct by the employee that somehow could be linked, after the fact, to the circumstances of that crime. Because we hold that plaintiff’s negligent retention claim cannot be maintained, there is no need at this time to reach defendant’s public policy argument.
a negligent retention claim. Rather, this provision simply
allows a worker to bring suit under any legal theory that
existed before the passage of the CRA. Thus, a worker
would not be barred by the CRA from bringing a common-law
negligent retention claim, as long as the premise for that
claim is a tort that existed before passage of civil rights
legislation.8
Therefore, because the CRA provides the exclusive
remedy for a claim based on sexual harassment, plaintiff
has failed to establish a claim of negligent retention,9 and
no inquiry into whether defendant possessed sufficient
notice that Bennett was engaged in sexual harassment is
necessary.
B. CIVIL RIGHTS ACT CLAIM
Plaintiff’s second theory is that defendant failed to
prevent sexual harassment in the workplace. MCL 37.2202(1)
states in pertinent part:
8 For example, if an employee had a history of committing simple assault, and the employer knew or should have known of that history, then a third party who was assaulted by the employee might be able to hold the employer liable under a negligent retention theory premised on simple assault. 9 Both the dissent and the concurrence/dissent argue that plaintiff’s negligent retention claim “implicates other torts such as assault and battery.” Post at 3. While that may be, plaintiff premised her claim on sexual harassment, not assault or battery.
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.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system.
Discrimination based on sex includes sexual
harassment. MCL 37.2103(i). The statute defines sexual
harassment as follows:
Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [MCL 37.2103(i).]
Plaintiff claims that CRA forbids any entity
classified as an employer from discriminating against any
individual, including nonemployees. Therefore, because the
actions of defendant’s employee allegedly created a
sexually hostile work environment, defendant can be held
liable under the CRA. Defendant, on the other hand, argues
that an employer can only be held liable for discrimination
against a nonemployee if some form of employment
relationship exists between the parties. Both the trial
court and the Court of Appeals held that plaintiff was
required to prove at least a “quasi-employment
relationship” before a claim under the CRA could be
maintained. We conclude that, unless an individual can
establish a genuine issue of material fact that an employer
affected or controlled the terms, conditions, or privileges
of his or her employment, a nonemployee may not bring a
claim under the CRA.
Fundamental canons of statutory interpretation require
us to discern and give effect to the Legislature’s intent
as expressed by the language of its statutes. DiBenedetto
v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
If the language is unambiguous, as is generally the case,
Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663
NW2d 447 (2003), “we presume that the Legislature intended
the meaning clearly expressed—no further judicial
construction is required or permitted, and the statute must
be enforced as written.” DiBenedetto, supra at 402.
MCL 37.2201(a) defines an “employer” for purposes of
the CRA as “a person who has 1 or more employees, and
includes an agent of that person.” As recognized by
plaintiff, the language of the statute does not otherwise
narrow the scope of who may be considered an employer.
Thus, MCL 37.2202 forbids any employer from engaging in
acts of discrimination that are prohibited by the CRA. MCL
37.2202 does not state that an employer is only forbidden
from engaging in such acts against its own employees.
Indeed, the CRA appears to clearly envision claims by
nonemployees for the failure or refusal to hire or recruit,
MCL 37.2202(1)(a); the improper classification of
applicants by a status prohibited under the CRA, MCL
37.2202(1)(b); and the discrimination against former
employees by operation of a benefit plan or system, MCL
37.2202(1)(c). Accordingly, to limit the availability of
relief under the CRA to those suits brought by an employee
against his or her employer is not consistent with the
statute.
However, the language of the statute is also clear in
requiring some form of nexus or connection between the
employer and the status of the nonemployee. MCL 37.2202
forbids an employer from using a classification protected
by the CRA: to “discriminate against an individual with
respect to . . . a term, condition, or privilege of
employment," MCL 37.2202(1)(a); to “deprive the . . .
applicant of an employment opportunity,” MCL 37.2202(1)(b);
or to “discriminate against a person . . . with respect to
a term, condition, or privilege of employment,” MCL
37.2202(1)(c). In other words, an employer is liable under
the CRA when it utilizes a prohibited characteristic in
order to adversely affect or control an individual’s
employment or potential employment. Thus, the key to
liability under the CRA is not simply the status of an
individual as an “employee”; rather, liability is
contingent upon the employer’s affecting or controlling
that individual’s work status. Accordingly, an employer
can be held liable under the CRA for discriminatory acts
against a nonemployee if the nonemployee can demonstrate
that the employer affected or controlled the terms,
conditions, or privileges of the nonemployee’s employment.10
In Chiles v Machine Shop, Inc, 238 Mich App 462; 606
NW2d 398 (1999), the Court of Appeals came to the same
conclusion while interpreting similar language in the
Persons with Disabilities Civil Rights Act (PWDCRA), MCL
37.1202.11 In Chiles, an employee injured his back on the
10 For example, a secretary who works for a temporary employment agency might not be an “employee” at the office where she is sent to fill in. However, there is little question that the employer at that office would dictate the terms, conditions, or privileges of her employment with the temporary employment agency, at least during the pendency of her temporary employment. 11 This provision of the PWDCRA is identical in all relevant respects to the CRA. MCL 37.1202(1) states in relevant part:
Except as otherwise required by federal law, an employer shall not:
(a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.
(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual (continued…)
job and filed for worker’s compensation benefits. After he
was laid off, the employee brought suit under the PWDCRA.
The “employer,” who laid off the plaintiff, argued that it
was not liable under the PWDCRA because the employee was
technically employed by a separate, though affiliated,
company. The Court in Chiles noted that the PWDCRA
addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job. MCL 37.1202(1)(a); MSA 3.550(202)(1)(a). The act does not limit the definition of “employer” to the plaintiff's employer but, instead, simply defines it as a “person who has 1 or more employees.” MCL 37.1201(b); MSA 3.550(201)(b). [Chiles, supra at 468 (emphasis supplied).][12]
Thus, liability under the PWDCRA “does not require
that an employment relationship exist,” but it does require
that the employer defendant “have the authority to affect a
plaintiff’s employment or potential employment.” Id. at
468-469. However, the authority to affect a worker’s
employment alone is not sufficient to impose liability upon
(…continued) of employment opportunities or otherwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position. 12 The definition of an employer is essentially the same under the CRA. MCL 37.2201(1)(a).
an employer defendant.13 Rather, in order to be liable
under the PWDCRA, the employer defendant must also “take[]
adverse employment action” against the worker plaintiff.
Accordingly, under Chiles, the employer defendant must (1)
have “the ability to affect adversely the terms and
conditions of an individual’s employment or potential
employment,” id. at 468; and (2) “take[] adverse employment
action against an ‘individual’ because of a handicap that
is unrelated to the individual’s ability to perform the
duties of a particular job . . ., e.g., discriminatorily
refusing to hire an applicant on account of a disability,”
id. at 468, quoting MCL 37.1202(1)(a). In other words, the
more precise articulation of the Chiles rule is that the
employer defendant must, in fact, use such authority by
“tak[ing] adverse employment action against an individual”
in violation of the PWDCRA. Thus, to be liable under the
PWDCRA, the employer defendant must actually affect or
control the terms, conditions, or privileges of an
individual’s employment. The Court of Appeals in Chiles
determined that the employer defendant directly supervised
13 Thus, contrary to the concurrence\dissent’s position, the fact that plaintiff produced some evidence that defendant had the ability to “affect or control a term, condition, or privilege of plaintiff’s employment,” post at 2, is not sufficient to present a genuine issue of material fact for the jury.
the employee, controlled what tasks he worked at, and had
the ability to fire or discipline the employee. Further,
the employer defendant actually affected the plaintiff’s
employment by laying him off. As a result, the Court of
Appeals determined that the parties’ relationship fell
within the scope of the PWDCRA and, therefore, the
plaintiff could maintain an action under the PWDCRA.
We hold that a worker is entitled to bring an action
against a nonemployer defendant if the worker can establish
that the defendant affected or controlled a term,
condition, or privilege of the worker’s employment. In the
instant case, plaintiff has failed to establish that
defendant affected or controlled the terms, conditions, or
privileges of her employment.14 Plaintiff was hired, paid,
14 The dissent argues that, because defendant had the authority to control Bennett and Bennett affected a condition of plaintiff’s employment, it follows that defendant itself “affect[ed] a condition of plaintiff’s employment.” Post at 6. Based on this reasoning, an employer would apparently always be liable for its agent’s creation of a sexually hostile work environment. However, we have held that such imposition of vicarious liability is proper only in sexual discrimination cases in which the employer’s agent has used his or her authority to alter the terms and conditions of employment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000), citing Champion v Nation Wide Security, Inc, 450 Mich 702, 708- 709; 545 NW2d 596 (1996). We have declined to treat sexually hostile work environment cases in the same manner, noting that “strict imposition of vicarious liability on an employer ‘is illogical in a pure hostile environment setting’ because, generally, in such a case, ‘the (continued…)
and subject to discipline by AVI. AVI placed plaintiff in
the Wixom plant and had the sole authority to move her to
different cafeterias or even to another plant. Plaintiff
has failed to demonstrate that defendant affected or
controlled whether she was hired, her benefits of
employment, or where she was assigned to work. Further,
although the cafeterias were located in the Wixom plant,
they were operated solely by AVI, and were off-limits to
defendant’s employees except during break-times.
We conclude that plaintiff failed to raise a genuine
issue of material fact that defendant affected or
controlled a term, condition, or privilege of her
employment. Accordingly, plaintiff may not maintain a
cause of action under the CRA against this defendant, and,
again, no inquiry into whether defendant possessed
sufficient notice that Bennett was engaged in sexual
harassment is necessary.
(…continued) supervisor acts outside ‘the scope of actual or apparent authority to hire, fire, discipline, or promote.’” Chambers, supra at 311, quoting Radtke v Everett, 442 Mich 368, 396 n 46; 501 NW2d 155 (1993). We again decline to strictly impose vicarious liability in sexually hostile work environment cases, absent an awareness by the employer of the offensive conduct.
IV. CONCLUSION
We conclude that plaintiff has failed to establish a
genuine issue of material fact that defendant affected or
controlled the terms, conditions, or privileges of her
employment and, therefore, she cannot bring a claim against
defendant under the CRA. Further, we conclude that a
common-law claim for negligent retention cannot be premised
upon workplace sexual harassment. Accordingly, we affirm
the judgment of the Court of Appeals that plaintiff has
failed to establish that she may bring a claim under the
CRA against this defendant, we reverse the judgment of the
Court of Appeals that plaintiff has an actionable claim for
negligent retention, and reinstate the trial court’s order
of judgment in favor of defendant.
Stephen J. Markman Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.
S T A T E O F M I C H I G A N
SUPREME COURT
MILISSA MCCLEMENTS,
Defendant-Appellant/Cross-Appellee. _______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the majority’s holding that a worker may
bring a claim against a nonemployer defendant under the
Civil Rights Act1 if the worker can establish that the
nonemployer defendant affected or controlled a term,
condition, or privilege of the worker’s employment. Ante
at 20. But I dissent from the majority’s conclusion that
plaintiff failed to present a genuine issue of material
fact that defendant affected or controlled a term,
condition, or privilege of plaintiff’s employment. As
noted by the majority, when plaintiff reported the
incidents to her union steward, she stated that she was
advised that if she reported the incidents to defendant,
defendant would “turn around and stab you in the back and
1 MCL 37.2101 et seq. you [would] end up losing your job.” Ante at 4. While
this statement standing alone would probably not be
sufficient to establish that defendant did, in fact, affect
or control a term, condition, or privilege of plaintiff’s
employment, it does raise a question whether defendant had
that ability. Therefore, I would allow the parties to
present evidence on this issue and let the question go to
the jury.
I also dissent from the majority’s conclusion that
plaintiff may not pursue a common-law claim for negligent
retention. As noted by the majority, MCL 37.2803 provides
that “[t]his act shall not be construed to diminish the
right of a person to direct or immediate legal or equitable
remedies in the courts of this state.” As explained in
Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189
NW2d 286 (1971), under the common-law claim of negligent
retention, an employer may be held liable for an
intentional tort committed by one of its employees if the
employer “‘knew or should have known of his employee’s
propensities and criminal record before commission of an
intentional tort . . . .’” (Citation omitted.)
The majority asserts that plaintiff may not pursue a
common-law negligent retention claim because the claim is
premised entirely on “the statutorily based tort of sexual
harassment.” Ante at 10 (emphasis deleted). I disagree.
Plaintiff’s negligent retention claim is not premised
solely on “the statutorily based tort of sexual
harassment,” but also implicates other torts such as
assault and battery. Therefore, I would allow plaintiff
the opportunity to establish her negligent retention claim
and let the jury determine whether she has successfully
done so.
Elizabeth A. Weaver
Plaintiff-Appellee,
Defendant-Appellant/Cross-Appellee. _______________________________
CAVANAGH, J. (dissenting).
I believe there is ample evidence for a jury to decide
the issue of whether defendant had adequate notice that one
of its supervisors, Daniel Bennett, had the propensity to
sexually harass and assault women and was indeed doing so.
Accordingly, because plaintiff presented sufficient
evidence of notice, a jury should be allowed to determine
plaintiff’s claims against defendant for sexual harassment
under the Civil Rights Act (CRA), MCL 37.2101 et seq., and
negligent retention. Therefore, I respectfully dissent
from the majority’s decision dismissing all of plaintiff’s
claims.
I. THERE IS SUFFICIENT EVIDENCE THAT DEFENDANT HAD NOTICE
OF BENNETT’S PROPENSITY FOR SEXUAL HARASSMENT AND ASSAULT
AND ALLEGATIONS THAT HE WAS INDEED SEXUALLY HARASSING AND
ASSAULTING WOMEN IN THE WORKPLACE
Plaintiff presented sufficient evidence that defendant
had adequate notice of Bennett’s propensity to sexually
harass and assault women and the pervasiveness of the
existing sexual harassment perpetrated by Bennett. Bennett
was one of defendant’s supervisors. In 1995, defendant
learned that Bennett had exposed himself to three teenage
girls while driving one of defendant’s vehicles. Bennett
was convicted of indecent exposure.1 While the facts
related to this conviction alone may not be enough to put
defendant on notice, defendant received other information
that Bennett was sexually harassing women.
In late October 1998, Justine Maldonado, another of
defendant’s employees, reported to a production manager
that Bennett was sexually harassing her.2 Maldonado also
told another of defendant’s employees, David Ferris, about
the sexual harassment. Ferris told Jerome Rush,
defendant’s director of labor relations at defendant’s
Wixom plant.
Maldonado’s complaint was not the first complaint of
this nature against Bennett. As detailed in Elezovic v
Ford Motor Co, 472 Mich 408, 433, 442-444; 697 NW2d 851
1 This conviction was later expunged. 2 The production manager was also Maldonado’s uncle.
(2005) (Cavanagh, J., concurring in part and dissenting in
part; Weaver, J., concurring in part and dissenting in
part), defendant also had notice in October 1998 that Lula
Elezovic had stated that Bennett sexually harassed her.
This information was shared with the director of labor
relations–the same director of labor relations who learned
of Maldonado’s complaints. Further, other coworkers had
also discussed sexual harassment involving Bennett with the
director of labor relations.3
An employer can only avoid liability if it adequately
investigates a claim of sexual harassment and takes prompt
and appropriate remedial action. Radtke v Everett, 442
Mich 368, 396; 501 NW2d 155 (1993). Managers and the
director of labor relations knew of claims that Bennett was
sexually harassing women. These claims, along with
knowledge that Bennett had exposed himself to three teenage
girls, are sufficient evidence to allow a jury to determine
whether, under the totality of the circumstances, defendant
adequately investigated these claims and took appropriate
3 Interestingly, in yet another case involving Bennett, Perez v Ford Motor Co, unpublished opinion per curiam of the Court of Appeals, issued March 10, 2005 (Docket No. 249737), slip op at 3, the Court of Appeals notes, “Defendant admits that the proper procedure for reporting a sexual harassment claim was to report to the labor relations department or a UAW committeeperson.” (Emphasis added.)
remedial action. See Chambers v Trettco, Inc, 463 Mich
297, 312, 318-319; 614 NW2d 910 (2000).
II. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT UNDER THE CRA
The CRA, in MCL 37.2201(a), defines “[e]mployer” as “a
person who has 1 or more employees, and includes an agent
of that person.” An employer is prohibited from
discriminating against an individual by doing 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.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [MCL 37.2202(1).]
“Discrimination because of sex includes sexual
harassment.” MCL 37.2103(i).
Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
* * *
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [MCL 37.2103(i)(iii).]
The majority acknowledges that the CRA allows for
claims by nonemployees, but the majority states that
“unless an individual can establish a genuine issue of
material fact that an employer affected or controlled the
terms, conditions, or privileges of his or her employment,
a nonemployee may not bring a claim under the CRA.” Ante
at 14. According to the majority, plaintiff cannot bring a
claim against defendant because “[p]laintiff was hired,
paid, and subject to discipline by AVI [Food Systems]. AVI
placed plaintiff in the Wixom plant and had the sole
authority to move her to different cafeterias or even to
another plant.” Ante at 20-21. The majority’s application
of the statute in this case ignores the specific language
of the statute.
MCL 37.2202(1)(a) states that an employer cannot
“otherwise discriminate against an individual with respect
to . . . a term, condition, or privilege of
employment. . . .” Discrimination includes sexual
harassment. MCL 37.2103(i). Sexual harassment includes
creating a sexually hostile or offensive work environment,
MCL 37.2103(i)(iii), and this is exactly what defendant,
through its supervisor Bennett, allegedly did to plaintiff.
Defendant’s supervisor, Bennett, did not merely have
the ability or authority to affect a condition of
plaintiff’s employment, he allegedly did so because
plaintiff alleged Bennett’s conduct created a sexually
hostile work environment at plaintiff’s workplace.
Notably, defendant was the only one who had the authority
to control Bennett and, therefore, affect a condition of
plaintiff’s employment. The CRA prohibits sexual
harassment by an employer or an employer’s agent. Bennett
was defendant’s agent when he allegedly sexually harassed
plaintiff. Therefore, plaintiff can bring a claim against
defendant for sexual harassment under the CRA.4
III. PLAINTIFF CAN BRING A CLAIM AGAINST DEFENDANT FOR
NEGLIGENT RETENTION
MCL 37.2803 states that the CRA “shall not be
construed to diminish the right of a person to direct or
4 Contrary to the majority’s presentation of the dissent’s position, see ante at 20 n 14, defendant would be liable only if it had notice and did not adequately investigate the claim and take prompt and appropriate remedial measures, just as in all other hostile work environment sexual harassment cases.
immediate legal or equitable remedies in the courts of this
state.” When a statute provides a remedy for enforcement
of a common-law right, it is cumulative and not exclusive.
Pompey v Gen Motors Corp, 385 Mich 537, 552-553; 189 NW2d
243 (1971). The passage of the CRA did not abolish
plaintiff’s right to bring a negligent retention claim
against defendant.
As stated by plaintiff’s counsel during oral argument,
Bennett’s conduct, while indeed sexual harassment, was also
“classic assault and battery, [a] common law tort.”
Plaintiff’s complaint also alleged that Bennett posed a
“known danger to women” and “sexually assaulted” plaintiff.
Plaintiff’s claim that Bennett grabbed her and tried to put
his tongue in her mouth, as well as Maldonado’s claims that
Bennett assaulted her and exposed himself to her and
Elezovic’s claims that Bennett assaulted her, certainly
qualify as assaultive behavior. See, e.g., Radtke, supra
at 395 (sexual assault can be sexual harassment that
creates a hostile work environment).
Plaintiff has presented sufficient evidence that
defendant was aware of Bennett’s propensity to sexually
harass and assault women and that defendant negligently
retained Bennett in light of this information. See Hersh v
Kentfield Builders, Inc, 385 Mich 410, 412, 415; 189 NW2d
286 (1971). Accordingly, I believe that plaintiff can
present a claim for common-law negligent retention to a
jury, and the jury should decide whether defendant acted
reasonably.
I believe that plaintiff presented sufficient evidence
that defendant had adequate notice of Bennett’s propensity
to sexually harass and assault women and that Bennett was
indeed doing so in the workplace. It is then a question
for the jury whether defendant’s subsequent conduct was
reasonable under the circumstances. Accordingly, I would
reverse the decision of the Court of Appeals in part and
allow plaintiff to proceed on her claim under the CRA. I
would also affirm the decision of the Court of Appeals in
part and allow plaintiff to proceed on her claim for
negligent retention.
Michael F. Cavanagh Marilyn Kelly