The Michigan Civil Rights Act prohibits retaliation by employers against employees who oppose a violation of the act or who has filed a charge or otherwise participated in a processing a claim under the act. It would seem that the language is straightforward and not subject to difficulty in application. In an unreported decision, the Michigan Court of Appeals addressed the issue in Pearce v. Radioshack Corp. The panel reviewed a trial court decision which had granted a motion for reconsideration of the granting of summary disposition for the defendants. The trial court found that the case of age discrimination and retaliation involved a "mixed motive" which required submission to the jury.The panel concluded that the plaintiff failed to prove the first element of her prima facie case; namely that she engaged in protected activity. The protected activity was based on the manager's "opposition" to her supervisor's order to hire more males. Her response was that the females who had been hired were competent. The court of appeals did not consider the order to hire more males to be direct evidence of discrimination because it occurred before the alleged protected activity and was not made in the context of her termination. In addition, the court stated that the plaintiff had not engaged in any form of opposition to the supervisor's alleged discriminatory hiring procedures. The manager's response that female employees were competent cannot be construed as clearly conveying a claim under the act. Moreover, the manager's actions indicated compliance and facilitation rather than opposition.Plaintiff failed to make a charge; file a complaint or in some manner participate in an investigation. The panel indicated that a statement about the capability of women employees did not constitute protected activity. In other words, "opposition" means conduct that conveys to the employer the position of disagreement with an employer's action because it is a violation of the civil rights act. A vague statement will not be protected. Expect the courts in Michigan to closely examine the conduct which is the basis for a claim of protected activity.
Lexis.com subscribers can access the Lexis enhanced version of the Pearce v. Radioshack Corp., 2012 Mich. App. LEXIS 1240 (Mich. Ct. App. June 26, 2012), decision with summary, headnotes, and Shepard's.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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