Introduction
Instructions
M Civ JI 105.01 Employment Discrimination Statute (Disparate Treatment)—Explanation
M Civ JI 105.02 Employment Discrimination (Disparate Treatment)—Definition
M Civ JI 105.03 Employment Discrimination (Disparate Treatment)—Cautionary Instruction as to Business Judgment
M Civ JI 105.04 Employment Discrimination (Disparate Treatment)—Burden of Proof
M Civ JI 105.05 Employment Discrimination (Constructive Discharge)—Definition
M Civ JI 105.10 Employment Discrimination—Sexual Harassment—Explanation
M Civ JI 105.12 Employment Discrimination—Quid Pro Quo Harrassment—Burden of Proof
M Civ JI 105.14 Employment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Employer Defendant
M Civ JI 105.18 Employment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Unwelcome Sexual Conduct or Communication
M Civ JI 105.20 Employment Discrimination—Hostile Environment Sexual Harassment—Sexually Hostile Work Environment
M Civ JI 105.24 Employment Discrimination—Hostile Environment Sexual Harassment—Employer Liability
M Civ JI 105.26 Employment Discrimination—Hostile Environment Sexual Harassment—Notice
M Civ JI 105.28 Employment Discrimination—Hostile Environment Sexual Harassment—Prompt Remedial Action
M Civ JI 105.30 Employment Discrimination—Hostile Environment Sexual Harassment—Damages—Tangible Employment Act Not Required
M Civ JI 105.32 Employment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Employee Defendant
M Civ JI 105.41 Employment Discrimination—Mitigation of Damages for Loss of Compensation
M Civ JI 105.42 Employment Discrimination—Mitigation of Damages for Loss of Compensation: Conditional and Unconditional Offers by Defendant
In adopting the employment discrimination instructions in 1985, the Committee deliberately eschewed reliance on the “order and allocation of proof in a private, non-class action challenging employment discrimination,” articulated by the United States Supreme Court in McDonnell Douglas Corp v Green, 411 US 792, 800; 93 S Ct 1817, 1823; 36 L Ed 2d 668, 676 (1973). As the Supreme Court was well aware, Title VII claims are not tried to a jury (Albemarle Paper Co v Moody, 422 US 405, 422–444; 95 S Ct 2362, 2385; 45 L Ed 2d 280, 312–313 (1975) (Rehnquist, J., concurring)), and McDonnell Douglas was not written as a prospective jury charge.
It was precisely because the McDonnell Douglas formulation would “add little to the juror’s understanding of the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate question of discrimination” (Loeb v Textron, Inc, 600 F2d 1003, 1016 (CA 1, 1979)) that the Committee decided not to develop its instructions around the McDonnell Douglas model. Since the adoption of these instructions the Michigan Supreme Court has issued two opinions discussing the McDonnell Douglas approach. In DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534; 620 NW2d 836 (2001), the Court held that the shifting burdens of producing evidence described in McDonnell Douglas are not applicable in cases involving direct evidence of discrimination (citing Trans World Airlines, Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed2d 523 (1985). In Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001), the Court explained that in cases based solely on indirect or circumstantial evidence in which the McDonnell Douglas approach does apply, the jury should not be instructed on its application:
As the Supreme Court explained in Burdine, supra at 256, n 8, the McDonnell Douglas burden-shifting framework is merely intended “to progressively sharpen the inquiry into the elusive factual question of intentional discrimination.” It is important to keep in mind, therefore, that for purposes of claims brought under the Michigan Civil Rights Act, the McDonnell Douglas approach merely provides a mechanism for assessing motions for summary disposition and directed verdict in cases involving circumstantial evidence of discrimination. It is useful only for purposes of assisting trial courts in determining whether there is a jury-submissible issue on the ultimate fact question of unlawful discrimination. The McDonnell Douglas model is not relevant to a jury’s evaluation of evidence at trial. Accordingly, a jury should not be instructed on its application. See Gehrig v Case Corp, 43 F3d 340, 343 (CA 7, 1995) (explaining that, in federal discrimination cases, “[o]nce the judge finds that the plaintiff has made the minimum necessary demonstration [the ‘prima facie case’] and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question—the only question the jury need answer—is whether the plaintiff is a victim of intentional discrimination”). (Footnote omitted.)
The law provides that an employer shall not discriminate against a person regarding employment, compensation, or a term, condition, or privilege of employment because of [religion / race / color / national origin / age / sex / height / weight / marital status].
Comment
History
M Civ JI 105.01 was added January 1985.
The plaintiff must prove that [he / she] was discriminated against because of [religion / race / color / national origin / age / sex / height / weight / marital status].
The discrimination must have been intentional. It cannot have occurred by accident. Intentional discrimination means that one of the motives or reasons for plaintiff’s [discharge / failure to be hired / failure to be promoted / failure to be trained / harassment / [other]] was [religion / race / color / national origin / age / sex / height / weight / marital status]. [Religion / race / color / national origin / age / sex / height / weight / marital status] does not have to be the only reason, or even the main reason, but it does have to be one of the reasons which made a difference in determining whether or not to [discharge / hire / promote / train / harass / [other]] the plaintiff.
Note on Use
Intent to discriminate need not be proven by direct evidence, United States Postal Service Board of Governors v Aikens, 460 US 711; 103 S Ct 1478; 75 L Ed 2d 403 (1983). Where circumstantial evidence is relied on, M Civ JI 3.10 should be given.
Comment
MCL 37.2202. This instruction was approved in Matras v Amoco Oil Co, 424 Mich 675; 385 NW2d 586 (1986) and Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001). See also Gallaway v Chrysler Corp, 105 Mich App 1; 306 NW2d 368 (1981); Farmington Education Association v Farmington School District, 133 Mich App 566; 351 NW2d 242 (1984).
History
M Civ JI 105.02 was added January 1985.
Your task is to determine whether defendant discriminated against the plaintiff. You are not to substitute your judgment for the defendant’s business judgment, or decide this case based upon what you would have done.
However, you may consider the reasonableness or lack of reasonableness of defendant’s stated business judgment along with all the other evidence in determining whether defendant discriminated or did not discriminate against the plaintiff.
Comment
Adama v Doehler-Jarvis Div of NL Industries, 115 Mich App 82; 320 NW2d 298 (1982); rev’d on other grounds, 419 Mich 905; 353 NW2d 438 (1984); Bouwman v Chrysler Corp, 114 Mich App 670; 319 NW2d 621 (1982); Gallaway v Chrysler Corp, 105 Mich App 1; 306 NW2d 368 (1981).
History
M Civ JI 105.03 was added January 1985.
Plaintiff has the burden of proving that:
- defendant [discharged / failed to hire / failed to promote / failed to train / harassed / [other]] the plaintiff, and
- [religion / race / color / national origin / age / sex / height / weight / marital status] was one of the motives or reasons which made a difference in determining to [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff.
Your verdict will be for the plaintiff if you find that defendant [discharged / failed to hire / failed to promote / failed to train / harassed / [other]] the plaintiff, and that [religion / race / color / national origin / age / sex / height / weight / marital status] was one of the motives or reasons which made a difference in determining to [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff.
Your verdict will be for the defendant if you find that the defendant did not [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff. Your verdict will also be for the defendant if you find that defendant did [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff, but that [religion / race / color / national origin / age / sex / height / weight / marital status] was not one of the motives or reasons which made a difference in determining to [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff.
Comment
This instruction was approved in Cobb v General Motors, unpublished opinion per curiam of the Court of Appeals decided March 29, 1989 (Docket Nos. 97545, 99515).
History
M Civ JI 105.04 was added January 1985.
The plaintiff [resigned / left the job]. Plaintiff claims that [he / she] was constructively discharged by the defendant. Defendant claims that the plaintiff voluntarily [resigned / left the job]. Plaintiff has the burden of proving that [he / she] was constructively discharged.
Constructive discharge means that an employer deliberately made an employee’s working conditions so intolerable that the employee was forced to [resign / leave the job].
It is not necessary to show that defendant intended plaintiff to [resign / leave the job], so long as you find that a reasonable person in the same circumstances as plaintiff would have felt compelled to [resign / leave the job].
Note on Use
This instruction is applicable in cases where an employer is indifferent to or tolerant of harassment of plaintiff by coemployees. Easter v Jeep Corp, 750 F2d 520 (CA 6, 1984).
Comment
See Jenkins v American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985); LeGalley v Bronson Community Schools, 127 Mich App 482; 339 NW2d 223 (1983); Bourque v Powell Electrical Mfg Co, 617 F2d 61 (CA 5, 1980); Alicea Rosado v Garcia Santiago, 562 F2d 114 (CA 1, 1977); Held v Gulf Oil Co, 684 F2d 427 (CA 6, 1982); Easter.
History
M Civ JI 105.05 was added October 1985.
Sexual harassment is a type of sex discrimination prohibited by state law. There are two types of sexual harassment. The first is known as quid pro quo, which means "this for that." The second is known as sexually hostile work environment harassment. In this case plaintiff claims [ quid pro quo / sexually hostile environment ] harassment.
Comment
MCL 37.2103(i); Chambers v Trettco, Inc, 463 Mich 297 (2000).
History
Added February 1987.
Amended March 1995.
Amended June 2006.
M Civ JI 105.12 Employment Discrimination—Quid Pro Quo Harassment—Burden of Proof
On plaintiff's claim of quid pro quo harassment, plaintiff has the burden of proving the following elements:
(a) that the employer or [ its / his / her ] agent subjected plaintiff to unwelcome [ sexual advances / requests for sexual favors / other verbal or physical conduct or communication of a sexual nature ]; and
(b)
(i) that the employer or [ its / his / her ] agent explicitly or implicitly made the plaintiff's submission to such conduct or communication a term or condition to obtain employment ; and
or
(ii) that the employer or [ its / his / her ] agent used plaintiff's submission to or rejection of such conduct or communication as a factor in a decision affecting the plaintiff's employment ]; and
(c) that [ he / she ] suffered damages.
A decision affecting the plaintiff's employment must be a tangible employment action. To be a tangible employment action, the action must constitute a change in employment status such as hiring, firing, or failing to promote.
To prove that the submission to or rejection of the conduct or communication was a factor in a decision, plaintiff must demonstrate that the tangible employment action which [ he / she ] suffered was because of [ his / her ] rejection of, or submission to, the harassment.
Your verdict will be for plaintiff if the plaintiff has proved all of those elements. Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.
Comment
MCL 37.2202(1)(a); MCL 37.2103(i); Chambers v Trettco, Inc , 463 Mich 297 (2000); Haynie v Michigan, 468 Mich 302 (2003); Champion v Nationwide Security, 450 Mich 702 (1996).
History
Added June 2006.
M Civ JI 105.14 E mployment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Employer Defendant
On plaintiff's claim of hostile environment sexual harassment against the defendant employer, plaintiff has the burden of proving the following elements, and I'll define these terms in a moment:
(a) that [ he / she ] was subjected to communication or conduct on the basis of gender; and
(b) that [ he / she ] was subjected to unwelcome sexual conduct or communication; and
(c) that [ he / she ] was subjected to a sexually hostile work environment; and
(d) that the employer was legally responsible for the sexually hostile work environment; and
(e) that [ he / she ] has suffered damages.
Your verdict will be for plaintiff if the plaintiff has proved all of those elements. Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.
Comment
Radtke v Everett , 442 Mich 368 (1993); Chambers v Trettco, Inc , 463 Mich 297 (2000); Haynie v Michigan , 468 Mich 302 (2003).
History
Added June 2006.
M Civ JI 105.18 Employment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Unwelcome Sexual Conduct or Communication
When I use the phrase "unwelcome sexual conduct or communications," I mean that plaintiff is the recipient of unwanted conduct or communication that is inherently sexual.
Comment
Haynie v Michigan , 468 Mich 302 (2003); Corley v Detroit Bd Of Ed, 470 Mich 274 (2004).
History
Added June 2006.
M Civ JI 105.20 Employment Discrimination—Hostile Environment Sexual Harassment—Sexually Hostile Work Environment
When I use the phrase "sexually hostile work environment," I mean the work environment was so tainted that, in the totality of the circumstances, the unwelcome sexual conduct complained of had the purpose or effect of substantially interfering with [ his / her ] employment or created an intimidating, hostile or offensive employment environment.
You must view the conduct or communication complained of from an objective standard, deciding how a reasonable person would have perceived the conduct or communication alleged in this case.
Comment
Radtke v Everett, 442 Mich 368 (1993); Faragher v Boca Raton, 524 US 775; 118 SCt 2275; 141 L Ed 2d 662 (1998).
History
Added June 2006.
M Civ JI 105.24 Employment Discrimination—Hostile Environment Sexual Harassment—Employer Liability
When I said the employer must be legally responsible, I mean the plaintiff must prove that the employer (1) had adequate notice that plaintiff was subjected to sexual harassment, and (2) failed to take prompt and adequate remedial action which reasonably served to prevent future harassment of the plaintiff, and (3) further sexual harassment of plaintiff occurred as a result of the employer's failure to take adequate remedial action.
Comment
Radtke v Everett, 442 Mich 368 (1993); Chambers v Trettco, Inc, 463 Mich 297 (2000).
History
Added June 2006.
M Civ JI 105.26 Employment Discrimination—Hostile Environment Sexual Harassment—Notice
By the term adequate notice, I mean that under the totality of the circumstances either the employer knew, or a reasonable employer should have known, of a substantial probability that plaintiff was being sexually harassed.
Comment
Elezovic v Ford Motor Co, 472 Mich 408 (2005); Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004); Chambers v Trettco, Inc , 463 Mich 297 (2000).
History
Added June 2006.
M Civ JI 105.28 Employment Discrimination—Hostile Environment Sexual Harassment—Prompt Remedial Action
By the term “prompt and adequate remedial action,” I mean that the employer must take steps reasonably calculated to stop the harassment of the plaintiff. In determining whether the steps are reasonable, you should consider the totality of the circumstances.
Comment
Chambers v Trettco, Inc, 463 Mich 297 (2000).
History
Added June 2006.
M Civ JI 105.30 Employment Discrimination—Hostile Environment Sexual Harassment—Damages—Tangible Employment Act Not Required
[ For a sexually hostile work environment claim, ] plaintiff need not suffer the loss of (his/her) job or other tangible benefit. It is the harassment and resulting change in the work environment that constitutes the injury.
Note on Use
The bracketed language should only be used if a quid pro quo claim is also being submitted to the jury.
Comment
Radtke v Everett, 442 Mich 368 (1993).
History
Added June 2006.
M Civ JI 105.32 Employment Discrimination—Hostile Environment Sexual Harassment—Burden of Proof—Employee Defendant
On plaintiff's claim of hostile environment sexual harassment against the defendant employee, plaintiff has the burden of proving the following elements:
(a) that [ he / she ] was subjected to communication or conduct on the basis of gender; and
(b) that [ he / she ] was subjected to unwelcome sexual conduct or communication; and
(c) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with [ his / her ] employment or created an intimidating, hostile, or offensive work environment; and
(d) that the defendant employee was the agent of the employer; and
(e) that [ he / she ] has suffered damages.
Your verdict will be for plaintiff if the plaintiff has proved all of those elements. Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.
Comment
Radtke v Everett, 442 Mich. 368 (1993); Chambers v Trettco, Inc, 463 Mich 297 (2000).
History
Added June 2006.
The plaintiff must make every reasonable effort to minimize or reduce [his / her] damages for loss of compensation by seeking employment. This is called “mitigation” of damages.
The defendant has the burden of proving that the plaintiff failed to mitigate [his / her] damages for loss of compensation.
If you find that the plaintiff is entitled to damages, you must reduce these damages by:
- *(what the plaintiff earned) (and)
- *(what the plaintiff could have earned with reasonable effort) during the period for which you determine that [he / she] is entitled to damages.
†(If you find that the plaintiff is entitled to future damages, you must reduce these damages by an amount the plaintiff could reasonably earn or reasonably be expected to earn in the future.)
Whether the plaintiff was reasonable in not seeking or accepting particular employment is a question for you to decide. However, the plaintiff is obligated to accept an offer of employment which is of “a like nature.” In determining whether employment is of “a like nature,” you may consider, for example, the type of work, the hours worked, the compensation, the job security, working conditions, and other conditions of employment.
Note on Use
If there are mitigation issues other than for loss of compensation, use M Civ JI 53.05.
*The court should use subsection a, b, or both as applicable.
†This sentence should be used only if applicable. Where the court is prepared to order reinstatement, future damages are not an issue for the jury. Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188; 390 NW2d 227 (1986). In other circumstances, an instruction on future damages may be appropriate. Adama v Doehler-Jarvis, Division of N L Industries (On Remand), 144 Mich App 764; 376 NW2d 406 (1985); Goins v Ford Motor Co, 131 Mich App 185; 347 NW2d 184 (1983); Riethmiller.
Comment
This instruction was cited with approval in Morris v Clawson Tank Co, 459 Mich 256; 587 NW2d 253 (1998).
The plaintiff’s duty to mitigate damages, including future damages, is also discussed in Department of Civil Rights v Horizon Tube Fabricating, Inc, 148 Mich App 633; 385 NW2d 685 (1986); Grix v Liquor Control Commission, 304 Mich 269, 277; 8 NW2d 62 (1943); Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 181; 309 NW2d 194 (1981); cf Davis v Combustion Engineering, Inc, 742 F2d 916 (CA 6, 1984); Whittlesey v Union Carbide Corp, 742 F2d 724 (CA 2, 1984).
The plaintiff is obligated to accept employment of “a like nature.” Morris; Higgins; Flickema v Henry Kraker Co, 252 Mich 406; 233 NW 632; 72 ALR 1046 (1930); Michigan Employment Relations Commission v Kleen-O-Rama, 60 Mich App 61; 230 NW2d 308 (1975); Rasimas v Michigan Department of Mental Health, 714 F2d 614 (CA 6, 1983), cert denied, 466 US 950; 104 S Ct 2151; 80 L Ed 2d 537 (1984).
Failure to mitigate is an affirmative defense, and the burden of proof is on the defendant. Morris; Department of Civil Rights v Horizon Tube Fabricating, Inc; Higgins; Fothergill v McKay Press, 374 Mich 138; 132 NW2d 144 (1965); Flickema; Ogden v George F Alger Co, 353 Mich 402, 408; 91 NW2d 288 (1958).
History
M Civ JI 105.41 was added February 1987.
Amended March 1996.
In this case, defendant has offered to [hire / promote / reinstate] the plaintiff to the position [previously held / applied for] or a substantially equivalent position, and plaintiff has rejected the offer. “Substantially equivalent position” means one with virtually identical promotion opportunities, compensation, job responsibilities, working conditions, and status.
Offers to [hire / promote / reinstate] are either conditional or unconditional. It is for you to decide whether defendant’s offer was conditional or unconditional. An offer is conditional if it involves discriminatory or other unreasonable conditions. An offer is unconditional if it does not involve discriminatory or other unreasonable conditions.
If an offer is conditional, plaintiff does not have to accept the offer.
If the offer is unconditional, then you should determine whether plaintiff’s rejection of the offer was reasonable. To be reasonable, plaintiff’s rejection must be grounded in the employment as contemplated by the offer to [hire / promote / reinstate] the plaintiff and not be for a purely personal reason.
If you determine that defendant unconditionally offered to [hire / promote / reinstate] the plaintiff to the position [previously held / applied for] or a substantially equivalent position, and it was not reasonable for plaintiff to reject the offer, then you shall not award damages for loss of compensation after the date plaintiff rejected the offer.
If you determine that the offer was conditional, or that it was reasonable for plaintiff to reject the offer, then you may award damages for loss of compensation after the date plaintiff rejected the offer, so long as plaintiff is otherwise entitled to damages as I have explained to you in these instructions.
Note on Use
This instruction should be used with M Civ JI 105.41, Employment Discrimination—Mitigation of Damages for Loss of Compensation.
This instruction should only be used if defendant has made an offer to hire, promote, or reinstate the plaintiff, and fact questions about the conditionality of the offer and the reasonableness of rejecting it are presented.
This instruction must be modified if plaintiff has neither accepted nor rejected the offer.
In some cases, whether an offer is conditional or unconditional may be a question of law for the court. Rasheed v Chrysler Corp, 445 Mich 109; 517 NW2d 19 (1994). For a discussion of conditional and unconditional offers, see Ford Motor Co v Equal Employment Opportunity Comm’n, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982); O’Donnell v Georgia Osteopathic Hospital, Inc, 748 F2d 1543 (CA 11, 1984); and National Labor Relations Bd v Madison Courier, Inc, 472 F2d 1307 (DC Cir, 1972). In Ford Motor Co, the court commented that when the employer offers reinstatement in exchange for dismissal of the lawsuit, the offer is conditional. 458 US 219, 232 fn 18.
Comment
An unconditional offer to hire, promote, or reinstate the plaintiff to the same or a substantially equivalent position bars damages for loss of compensation after the date the plaintiff rejects the offer. Ford Motor Co; Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985); Flickema v Henry Kraker Co, 252 Mich 406; 233 NW 362; 72 ALR 1046 (1930), but see Department of Civil Rights ex rel Cornell v Edward W Sparrow Hospital Ass’n, 423 Mich 548; 377 NW2d 755 (1985) (an offer of reinstatement to a job without removing the discriminatory dress code is not an unconditional offer). See also the Note on Use for this instruction.
Failure to mitigate is an affirmative defense, and the burden of proof is on the defendant. Department of Civil Rights v Horizon Tube Fabricating, Inc, 148 Mich App 633; 385 NW2d 685 (1986); Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178; 309 NW2d 194 (1981); Fothergill v McKay Press, 374 Mich 138; 132 NW2d 144 (1965); Flickema; Ogden v George F Alger Co, 353 Mich 402, 408; 91 NW2d 288 (1958).
Whether plaintiff’s rejection of an offer was reasonable is a question for the jury. Rasheed. The court stated that it is reasonable to reject an offer of a position that is not substantially equivalent or has a discriminatory or other unreasonable condition, but it is not reasonable to reject an offer for reasons unrelated to the terms of that offer.
The jury could find that an offer made on the eve of trial and rescinded ten days later was conditional, and plaintiff’s failure to accept the offer in that period did not preclude damages for loss of compensation. Paulitch v Detroit Edison Co, 208 Mich App 656; 528 NW2d 200 (1995).
History
M Civ JI 105.42 was added March 1996.