Rymal v. Baergen6/8/2004
64 NW2d 129 (2003).
B. Individual Liability of Defendant Baergen
Plaintiff raises three separate arguments on the matter of individual liability under the CRA. First, Baergen was liable because he was in fact plaintiff's employer as a sole proprietor. Second, assuming that Baergen was not plaintiff's employer, this Court's decision in Jager, supra, was legally incorrect and unsound. Third, with respect to the retaliation claim, Jager is inapposite because the CRA makes "persons" liable for such claims if established as opposed to solely employers.
Plaintiff's complaint asserted CRA violations sounding in sexual harassment - quid pro quo harassment and hostile environment harassment - and retaliation. In Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000), our Supreme Court reviewed the principles underlying a sexual harassment lawsuit in the context of employment.
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).
MCL 37.2103 provides, in pertinent part:
(i) Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communications 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 . . . .
( 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 . . . .
( iii ) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . ., or creating an intimidating, hostile, or offensive employment . . . environment.
The first two of these subsections have been commonly referred to as quid pro quo sexual harassment. Chambers, supra at 310. "Sexual harassment that falls into the third subsection is commonly labeled hostile environment harassment." Id. (citation omitted).
With respect to the retaliation claim, MCL 37.2701(a) of the CRA provides, in relevant part, that a person shall not " etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act."
The trial court ruled that Jager, in which this Court held "that the CRA provides solely for employer liability," supra at 485, precluded any claim of individual liability under the CRA.
We note that in Elezovic v Ford Motor Co, 259 Mich App 187, 202; 673 NW2d 776 (2003), this Court concluded that "under the controlling legal principles regarding sexual harassment under Michigan law, Chambers, supra at 313, the Legislature did not intend to preclude individual liability for sexual harassment." The Elezovic panel; however, recognized its obligation to abide by Jager under MCR 7.215(J)(1), and ruled accordingly. The Judges of this Court were polled, pursuant to MCR 7.215(J), and rejected the convening of a special panel to resolve any conflict between Jager and Elezovic. Elezovic v Ford Motor Co, unpublished order of the Court of Appeals, entered November 18, 2003 (Docket No. 236749). Therefore, Jager remains controlling precede
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