Court Explains Viable Third-Party Retaliation Claims Under ELCRA
Posted by chapteradmin on Sep. 7, 2022 / Legal Updates / Subscribe 0
By: Carol G. Schley, Clark Hill PLC
A recent decision by the Michigan Court of Appeals clarified the circumstances under which a claim of “third-party” retaliation can be asserted under Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”).
In Miller v. Michigan Department of Corrections, plaintiffs Richard Miller and Brent Whitman were employees of the defendant (the “Department”). Cedric Griffey was their supervisor, with whom they had a close relationship and considered a “friend they could confide in.” Mr. Griffey’s wife, Lisa Griffey, also an employee of the Department, filed a civil rights complaint claiming the Department discriminated against her because of her race. The plaintiffs “participated honestly” in the Department’s investigation of Ms. Griffey’s discrimination claim and shortly thereafter, the Department terminated the plaintiffs’ employment on the basis of alleged wrongdoing.
Mr. Miller and Mr. Whitman filed a lawsuit against the Department, asserting that their employment terminations were unlawful under ELCRA. As support for their claim, they alleged that they were terminated because they were close friends with Mr. Griffey and had participated in the Department’s investigation of Ms. Griffey’s discrimination claim, giving rise to a claim of third-party (or associational) retaliation.
To support their third-party retaliation claim, plaintiffs asked the court to follow case law decided under Title VII, the federal equivalent of Michigan’s ECLRA. While the court recognized that third-party retaliation claims like that asserted by plaintiffs are recognized under Title VII, it also noted that the wording of ELCRA is different than Title VII with respect to such claims. Specifically, a subsection of ELCRA states that an employer shall not “coerce, intimidate, threaten, or interfere with a person in the exercise or 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 [ECLRA].” Per the court, despite the fact that this subsection does not include the word “retaliate,” third-party retaliation claims under ELCRA are viable if they meet the specific language of this subsection:
Applied in the employment context, [the subsection] precludes an employer from coercing, intimidating threatening or interfering with an employee’s employment when that employee aids or encourages another person – like a fellow employee – to exercise a right under [ELCRA]. This could include anything from a change of job duties, to a termination of employment to the threat of any such conduct. It was plainly the intent of the legislature to provide relief to this group of persons who aid or encourage another to engage in protected activity.
Applying this language, the Court of Appeals determined that plaintiffs did not sufficiently plead a claim of third-party retaliation, as no where in their complaint was it alleged that “they aided or encouraged Cedric to engage in protected activity… Their close friendship alone does not suffice to state a claim….” However, the court allowed the case to be remanded to the trial court, with an opportunity for plaintiffs to seek leave to amend their complaint allegations.
The importance of the Miller case is shown by the fact that Court of Appeals deemed the decision “for publication,” which is relatively rare. As a published decision, Miller is considered binding precedent going forward. Employers should be mindful of its key holding, which is, in certain situations, employees who are not the alleged victim of unlawful harassment or discrimination may be able to assert a viable claim of retaliation under ELCRA where they can demonstrate an adverse employment action taken again them based upon their relationship to the alleged victim. Since these situations may be difficult to recognize and handle, it is always best to consult with legal counsel where the circumstances may implicate a claim of third-party retaliation.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at [email protected] or (248)530-6338.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2022
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