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Rymal v. Baergen6/8/2004
a person from complying with this act or an order issued or rule promulgated under this act.
(f) Coerce, intimidate, threaten, or interfere with a person in the exercise of enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
The majority correctly observes that MCL 37.2701 uses the term "person" rather than "employer." But I disagree with the conclusions it draws from this observation. MCL 37.2701 must be viewed in light of its purpose in relation to the CRA as a whole. It is clear that article 7 operates as an umbrella to protect people in their "exercise or enjoyment of, any right granted or protected by this act." Thus, it protects people who are pursuing claims that arise from violations of articles 2 through 5. Employment discrimination is only one of these types of violations.
Clearly, article 7 does not use the term "employer" because it does not serve only to protect people in pursuance of claims that arise only under article 2. Article 7 uses the broader term "person" because it protects people in pursuance of claims, arising under articles 2 through 5, brought against various entities including employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc.
Because article 2 specifically prohibits employers from discriminating, in the context of employment discrimination, article 7 can only apply to employers. As noted by the majority, our Supreme Court outlined the basic principles underlying a sexual harassment lawsuit in the employment context:
Through the Civil Rights Act, Michigan law recognizes that, in employment, freedom from discrimination because of sex is a civil right. MCL 37.2102; MSA 3.548(102). Employers are prohibited from violating this right, MCL 37.2202; MSA 3.548(202), and discrimination because of sex includes sexual harassment, MCL 37.2103(i); MSA 3.548(103)(i). [ Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000) (emphasis added).]
Jager held that only employers are prohibited from discriminatory actions under article 2:
Read as a whole, the CRA envisions, in our opinion, employer liability for civil rights violations that result from the acts of its employees who have the authority to act on the employer's behalf rather than individual liability for those civil rights violations. Further, had our Legislature intended individual liability, rather than employer liability under the CRA, it could have expressly stated so. Thus, we conclude that the CRA provides solely for employer liability, and a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff's civil rights. [ Jager, supra at 484-485]
Accordingly, in the context of employment discrimination, employers are prohibited from violating the article 2 of the CRA and the "persons" prohibited from retaliating are employers .
This conclusion is further supported by the plain meaning of the term "retaliate," which is not expressly defined in the CRA. Therefore, it is appropriate to look to the common definition of retaliate. Mahnick v Bell Co, 256 Mich App 154, 162; 662 NW2d 830 (2003). Retaliate is defined as "to return like for like . . . to requite or make return for (a wrong or injury) with the like." Retaliate is synonymous with counter, repay and reciprocate. Random House Webster's Unabridged Dictionary (2001). "To return like for like" requires that the interaction occur between two parties. The party acted against retaliates against the actor. One cannot retaliate if it was not first
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