Hamed v. Wayne County

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JULY 29, 2011
STATE OF MICHIGAN
SUPREME COURT
TARA KATHERINE HAMED,
Plaintiff-Appellee,
v No. 139505
WAYNE COUNTY and WAYNE
COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellants,
and
SERGEANT KENNETH DARWISH,
CORPORAL NETTIE JACKSON,
SHERIFF WARREN C. EVANS, and
DEPUTY REGINALD JOHNSON,
Defendants.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
We granted leave to appeal in this case to determine the scope of an employer’s
vicarious liability for quid pro quo sexual harassment affecting public services under
Michigan’s Civil Rights Act (CRA).1 Specifically, we consider whether Wayne County
and its sheriff’s department may be held vicariously liable for a civil rights claim under
MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working
hours but plainly beyond the scope of his employment. We hold that defendants may not
be held vicariously liable for quid pro quo sexual harassment affecting public services
under traditional principles of respondeat superior. Accordingly, we reverse the Court of
Appeals’ judgment and reinstate the circuit court’s order granting summary disposition in
defendants’ favor.
I. FACTS AND PROCEDURAL HISTORY
In August 2001, Livingston County deputy sheriffs arrested plaintiff, Tara
Katherine Hamed, on a warrant for unpaid child support. Because plaintiff also had
outstanding warrants for probation violations in Wayne County, the Livingston County
deputies later transferred plaintiff to the custody of Wayne County. Wayne County
deputies transported plaintiff to the Wayne County jail. When plaintiff arrived at the jail,
Deputy Reginald Johnson was the only officer on duty in the inmate registry area.2
While alone with plaintiff, Johnson subjected her to sexually charged comments and
offers for better treatment in exchange for sexual favors. Plaintiff resisted these
advances, but Johnson transferred plaintiff into an area of the jail not subject to
1
MCL 37.2101 et seq.
2
Wayne County jail regulations require that a female officer be in attendance when
female inmates are present. The officers who transported plaintiff to the jail informed a
supervisor that Johnson was the only deputy on duty. The supervisor advised the officers
to leave plaintiff with Johnson.
2
surveillance cameras and sexually assaulted her. Shortly thereafter, a female deputy
transported plaintiff to another part of the jail. After her release, plaintiff reported the
incident to departmental authorities. The Wayne County Sheriff’s Department
terminated Johnson’s employment, and the state subsequently charged Johnson with
criminal sexual conduct, of which he was ultimately convicted.3
In 2003, plaintiff filed a complaint against Johnson, Wayne County, the Wayne
County Sheriff’s Department, and the Wayne County Sheriff, among others, alleging
various claims of gross negligence.4 In 2006, plaintiff moved to amend her complaint,
adding civil rights claims of quid pro quo and hostile-environment sexual harassment
pursuant to MCL 37.2103(i). Defendants then moved for summary disposition under
MCR 2.116(C)(8) and (10), arguing that, under the CRA, jails are excluded from liability
and, because defendants had no notice of Johnson’s sexually harassing conduct, they
could not be vicariously liable for his actions.
The circuit court granted defendants summary disposition in two separate orders
and dismissed all of plaintiff’s civil rights claims. It concluded that plaintiff’s hostile-
environment claim failed because defendants had no prior notice that Johnson was a
sexual predator. The circuit court also dismissed plaintiff’s quid pro quo sexual
3
See MCL 750.520c(k).
4
The only remaining defendants are Wayne County and the Wayne County Sheriff’s
Department. Plaintiff received a default judgment against Johnson; Johnson, while a
defendant in plaintiff’s action, is not a party to this appeal. Thus, for the purposes of this
opinion, our references to “defendants” encompass only the institutional defendants.
3
harassment claim on the basis that defendants are not vicariously liable for the criminal
acts of sheriff’s department employees.5
Plaintiff then appealed the circuit court’s decision only with regard to her quid pro
quo sexual harassment claim. The Court of Appeals reversed and applied this Court’s
analysis in Champion v Nation Wide Security, Inc6 to hold that “[e]mployers are
vicariously liable for acts of quid pro quo sexual harassment committed by their
employees when those employees use their supervisory authority to perpetrate the
harassment.”7 The Court of Appeals held that plaintiff had established a viable quid pro
quo sexual harassment claim because “Johnson used his authority as a sheriff’s deputy to
exploit plaintiff’s vulnerability . . . .”8 We granted leave to consider whether defendants
may be held vicariously liable for quid pro quo sexual harassment affecting public
services under MCL 37.2103(i).9
II. STANDARD OF REVIEW
We review de novo whether the Court of Appeals erred by reversing the circuit
court’s grant of summary disposition.10 Whether defendants may be held vicariously
liable for quid pro quo sexual harassment affecting a public service under the CRA is a
5
See Zsigo v Hurley Med Ctr, 475 Mich 215; 716 NW2d 220 (2006).
6
Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996).
7
Hamed v Wayne Co, 284 Mich App 681, 693; 775 NW2d 1 (2009).
8
Id.9
Hamed v Wayne Co, 486 Mich 996 (2010).
10
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
4
question of law that we review de novo.11 To the extent that defendants’ arguments
require us to interpret the meaning of the CRA, our review is also de novo.12 When
interpreting the meaning of a statute, we discern the Legislature’s intent by examining the
language used.13 We read the statutory language in context and as a whole, considering
the plain and ordinary meaning of every word.14 If the language is clear and
unambiguous, then we apply the statute as written without judicial construction.15
III. ANALYSIS
A. QUID PRO QUO SEXUAL HARASSMENT UNDER THE CRA
The CRA recognizes that freedom from discrimination because of sex is a civil
right.16 Accordingly, the act prohibits discrimination because of sex in employment,
places of public accommodation, and public services.17 MCL 37.2103(i) broadly defines
“discrimination because of sex” as follows:
Discrimination because of sex includes sexual harassment. Sexual
harassment means unwelcome sexual advances, requests for sexual favors,
11
See Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002).
12
Id.13
Danse Corp v Madison Hts, 466 Mich 175, 181-182; 644 NW2d 721 (2002).
14
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
15
Danse Corp, 466 Mich at 182.
16
MCL 37.2102(1).
17
MCL 37.2202 (employment); MCL 37.2302 (public accommodations and public
services). For purposes of this opinion, we assume, without deciding, that the Wayne
County jail is a “public service” as defined by MCL 37.2301(b).
5
and other verbal or physical conduct or communication 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, public
accommodations or public services, education, or housing.
(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, public accommodations or public services, education, or
housing.
(iii) The conduct or communication has the purpose or effect of
substantially interfering with an individual’s employment, public
accommodations or public services, education, or housing, or creating an
intimidating, hostile, or offensive employment, public accommodations,
public services, educational, or housing environment. [Emphasis added.]
The first two subdivisions of MCL 37.2301(i) describe quid pro quo sexual harassment,
while the third subdivision refers to hostile-environment sexual harassment.18
A plaintiff alleging quid pro quo sexual harassment affecting public services must
show by a preponderance of the evidence (1) that he or she was subjected to any of the
types of unwelcome sexual conduct or communication described in the statute and (2)
that the public service provider or the public service provider’s agent made submission to
the proscribed conduct a term or condition of obtaining public services or used the
plaintiff’s submission to or rejection of the proscribed conduct as a factor in a decision
affecting his or her receipt of public services.19
18
Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000).
19
See id. (stating the test for quid pro quo sexual harassment in the employment context).
For purposes of our analysis, we also assume, without deciding, that plaintiff can
establish the elements of quid pro quo sexual harassment affecting public services.
6
When the harassment was committed by an agent and the plaintiff is pursuing a
civil rights claim against the principal, as in this case, a court must always “determine the
extent of the employer’s vicarious liability . . . .”20 We require this analysis because the
CRA specifically incorporates common-law agency principles.21 Thus, if a defendant is
not vicariously liable for the acts of its agent under traditional principles of respondeat
superior, the plaintiff’s claim under the CRA fails as a matter of law.
B. RESPONDEAT SUPERIOR
The doctrine of respondeat superior is well established in this state: An employer
is generally liable for the torts its employees commit within the scope of their
employment.22 It follows that “an employer is not liable for the torts . . . committed by an
employee when those torts are beyond the scope of the employer’s business.”23 This
Court has defined “within the scope of employment” to mean “‘engaged in the service of
his master, or while about his master’s business.’”24 Independent action, intended solely
to further the employee’s individual interests, cannot be fairly characterized as falling
20
Id. at 311.
21
Id. We reached this conclusion in Chambers because MCL 37.2201(a) “expressly
defines ‘employer’ to include agents,” thereby incorporating common-law agency
principles into the act. Chambers, 463 Mich at 311.
22
See, e.g., Zsigo, 475 Mich at 221; Bradley v Stevens, 329 Mich 556, 562; 46 NW2d
382 (1951); Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942); Davidson v
Chinese Republic Restaurant Co, 201 Mich 389, 396; 167 NW 967 (1918).
23
Zsigo, 475 Mich at 221.
24
Barnes v Mitchell, 341 Mich 7, 13; 67 NW2d 208 (1954), quoting Riley v Roach, 168
Mich 294, 307; 134 NW 14 (1912).
7
within the scope of employment.25 Although an act may be contrary to an employer’s
instructions, liability will nonetheless attach if the employee accomplished the act in
furtherance, or the interest, of the employer’s business.26
Here, there is no question that Johnson’s sexual assault of plaintiff was beyond the
scope of his employment as a deputy sheriff. The sexual assault was an independent
action accomplished solely in furtherance of Johnson’s own criminal interests. It cannot
be said that any of the institutional defendants benefited in any way from Johnson’s
criminal assault or his exercise of unlawful authority over plaintiff. In fact, Johnson’s
behavior was expressly prohibited by defendants’ rules regarding treatment of detainees
and defendants’ antidiscrimination policies, to say nothing of the criminal law. In short,
there is no fair basis on which one could conclude that the sheriff or county themselves
vicariously took part in the wrongful acts.
The general rule that an employer is not liable for acts of its employee outside the
scope of its business, however, does not preclude vicarious liability in every instance.
This Court has consistently recognized that an employer can be held liable for its
employee’s conduct if “the employer ‘knew or should have known of [the] employee’s
propensities and criminal record’” before that employee committed an intentional tort.27
This inquiry involves an analysis of whether an employer had (1) actual or constructive
25
2 Restatement Agency, 3d, § 7.07, p 201.
26
See Barnes, 341 Mich at 13-16 (examining cases discussing scope of employment).
27
McClements v Ford Motor Co, 473 Mich 373, 381; 702 NW2d 166 (2005), quoting
Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971) (quotation
marks omitted) (emphasis added).
8
knowledge of prior similar conduct and (2) actual or constructive knowledge of the
employee’s propensity to act in accordance with that conduct. Under this two-pronged
approach, the conduct at issue may be so close in time to prior similar conduct that
knowledge under the first prong gives rise to a valid inference that the conduct was
foreseeable under the second prong. Conversely, if an employee’s actions were
temporally distant and the employee’s recent record suggested a change in character,
foreseeability would not be established.28
We applied this principle in Brown v Brown, in which we held that the employer
was not vicariously liable for a rape committed by its employee because, under the
circumstances, the act was unforeseeable.29 There, the defendant’s employee repeatedly
made sexually offensive comments to the plaintiff, a female coworker. The plaintiff
reported the incidents to the defendant, yet it took no action, and the employee
subsequently raped the plaintiff. In concluding that the employer was not vicariously
liable, we noted that the employee had no prior criminal record and had never threatened
to rape the plaintiff. We explained:
[An employer] cannot reasonably anticipate that an employee’s
lewd, tasteless comments are an inevitable prelude to rape if those
comments did not clearly and unmistakably threaten particular criminal
activity that would have put a reasonable employer on notice of an
28
This analysis does not, as the dissenting justices assert, abandon prior caselaw to hold
that “an employee’s conduct is only foreseeable to an employer if the employee had
recently committed the precise conduct at issue.” Post at 22 n 20. This criticism
mischaracterizes the inquiry that must be undertaken, which has its roots in well-
established caselaw. See McClements, 473 Mich at 381; Hersh, 385 Mich at 412.
29
Brown v Brown, 478 Mich 545, 554-555; 739 NW2d 313 (2007).
9
imminent risk of harm to a specific victim. Comments of a sexual nature
do not inexorably lead to criminal sexual conduct any more than an
exasperated, angry comment inexorably results in a violent criminal
assault.[30]
In summary, we have consistently held that an employer’s liability for the criminal
acts of its employees is limited to those acts it can reasonably foresee or reasonably
should have foreseen. This is because we should not expect employers to assume that
their employees will disobey the law. Criminal conduct is inherently arbitrary and highly
unpredictable. As we noted in Brown, even law enforcement agencies, which are trained
in detecting and preventing crime, cannot predict the occurrence of criminal acts.31
Contrary to plaintiff’s argument, our caselaw governing the imposition of vicarious
liability on an employer requires more than simply the exercise of some form of authority
by an employee. Thus, it would be anomalous to adopt a rule requiring employers that
provide public services to protect against the criminal actions of their employees absent
some indicia of foreseeability. Rather, foreseeability is a necessary element for imposing
liability, and, as we recently stated in Brown, we decline to “transform the test of
30
Id. at 555. Brown did not, as the dissenting justices state, “conclude[] that an
employee’s prior violent criminal acts are generally sufficient to put a defendant on
notice of the employee’s propensity to commit similar violent acts . . . .” Post at 22-23.
Rather, Brown made clear that knowledge of prior violent acts potentially provides an
employer notice of an employee’s violent propensities. Brown, 478 Mich at 561. The
dissenting justices attempt to broaden the holding in Brown to justify their position that
defendants’ knowledge of Johnson’s dissimilar prior violent act suffices to create a
question of fact regarding foreseeability.
31
Id. at 554, citing MacDonald v PKT, Inc, 464 Mich 322, 335; 628 NW2d 33 (2001).
10
foreseeability into an ‘avoidability’ test that would merely judge in hindsight whether the
harm could have been avoided.”32
Michigan’s well-established rules governing respondeat superior are further
justified by the societal burden that imposing liability for unforeseen criminal actions
would create. Not only would holding employers vicariously liable for such acts be
unfair, but doing so would attempt to further an impossible end by requiring employers to
prevent harms they cannot anticipate, which are, in essence, unpreventable. The result
would be the implementation of burdensome and impractical regulations meant to
oversee employee conduct. Yet because such measures are sure to fail given that
criminal conduct by its nature cannot be anticipated or foreseen, employers would
essentially become insurers responsible for recompensing victims for the criminal acts of
32
Brown, 478 Mich at 556. An “avoidability test” is the type of test the dissenting
justices favor. In their view, defendants’ policy prohibiting male deputies from being
alone with female inmates demonstrates, in itself, that the sexual assault was preventable
and foreseeable. However, reliance on the policy alone to impose liability obliterates any
real foreseeability requirement; an employer’s policy is irrelevant to assessing what the
employer knows with respect to a specific employee. The consequence would be
imposition of vicarious liability every time an employee disobeys the employer’s policy,
regardless of whether the act was unforeseeable under the actual circumstances.
Rather, as we have explained, a defendant’s specific knowledge of past
misconduct and propensity to act in conformity with such conduct must be the focus of a
foreseeability analysis. This analysis, which the dissenting justices term a “newly
imposed foreseeability analysis,” post at 24, merely recognizes that foreseeability has
always been the touchstone for when vicarious liability will be imposed. The criticism
by the main dissent is not surprising, given that Justice CAVANAGH has previously
expressed support for what effectively amounts to the imposition of strict liability in lieu
of a foreseeability analysis. See Brown, 478 Mich at 570-580 (CAVANAGH, J.,
dissenting); Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 30-35; 664 NW2d 756
(2003) (CAVANAGH, J., dissenting).
11
their employees. The harm of adopting such a policy would also extend to potential
employees with less than impeccable personal backgrounds, who would encounter
barriers to employment because employers, out of an abundance of caution, would be less
willing to employ these individuals out of fear that any prior indiscretion could be used in
a lawsuit to impute knowledge to the employer that it did not have.33
Applying the foreseeability analysis in this case dictates the conclusion that
defendants are not legally responsible for Johnson’s criminal acts. The majority of
complaints against Johnson during his employment with defendants involved his failure
to obey work-related policies, such as failure to report a change of home address, or
unsatisfactory work performance, for example, temporarily leaving his work station while
on duty. Some of the grievances filed against Johnson reflected more serious behavior,
such as using a police vehicle without authorization to deliver baby formula to his home,
allegedly making threatening calls to his landlord after receiving an eviction notice, and
33
For a catalogue of some of the difficult questions that would confront an employer
operating under the dissenting justices’ rule, see Brown, 478 Mich at 566-570(MARKMAN, J., concurring). “The rule proposed by the dissent, and the unanswered
questions arising from that rule, would create confusion and uncertainty among
employers throughout this state . . . .” Id. at 566. And employers would not be the only
ones to suffer; employees would suffer as well because, were the dissenting justices’ rule
to become law, what rational employer would ever hire anybody with any history of
problems in his or her background? “Why would any rational employer expose itself to
the vagaries of litigation-by-hindsight . . . where it fails to predict unpredictable behavior
if this could all be avoided by simply firing [or failing to hire] every odd or rude or
quirky employee?” Id. at 569-570. The rule the dissenting justices propose would result
in those with imperfect criminal histories, or even merely a history of arrests, becoming
increasingly unemployable.
12
engaging in a physical altercation with a male inmate after an exchange of words.34
Viewed in the light most favorable to plaintiff, this past misconduct put defendants on
notice of Johnson’s irresponsible and aggressive tendencies, which, at most, demonstrates
that defendants were aware that Johnson had a propensity to disobey work-related
protocol and engage in aggressive behavior when provoked. Defendants had no actual or
constructive knowledge of prior similar criminal sexual misconduct. Even the incident of
aggression did not put defendants on reasonable notice that Johnson would sexually
assault an inmate; violent actions do not inevitably lead to acts of criminal sexual
conduct.35 Because Johnson’s prior misconduct was not similar to the violent sexual
assault he perpetrated against plaintiff, we hold that defendants may not be held
vicariously liable for quid pro quo sexual harassment based on Johnson’s unforeseeable
criminal act under traditional principles of respondeat superior.36
34
The dissenting justices misrepresent the seriousness of Johnson’s past conduct, stating
that he “had a specific history of violent and abusive behavior toward inmates.” Post at
22. In fact, Johnson had engaged in a single physical altercation with a male inmate in
1988, 13 years before the sexual assault in this case. Unlike the circumstances here,
Johnson did not initiate the altercation with the male inmate.
35
Cf. Brown, 478 Mich at 555.
36
The dissenting justices dismiss our foreseeability analysis, concluding that Johnson’s
past violent act and sexual assault of plaintiff more than a decade later is sufficient to
create a question of fact concerning defendants’ vicarious liability. According to the
dissenting justices, defendants had notice that Johnson would sexually assault a female
inmate because Johnson, 13 years earlier, had engaged in a physical altercation initiated
by a male inmate. In their view, any past violent conduct may create a jury-submissible
question regarding foreseeability. Moreover, their contention that the question of
foreseeability should have been submitted to the jury because this matter is substantially
similar to Hersh is unavailing. In that case, the defendant’s employee had a criminal
conviction for similar prior conduct 10 years earlier, which the employer knew about,
thus establishing a factual question regarding whether the employee had “vicious
13
C. CHAMPION v NATION WIDE SECURITY, INC AND ITS PROGENY
Plaintiff urges us to ignore these traditional common-law principles and extend the
reasoning of this Court’s decision in Champion, which referred to the Second
Restatement of Agency’s “aided-by-agency” exception to the rule of respondeat
superior.37 We reject this argument because, for reasons we will explain, Champion
wrongly applied this respondeat superior exception to the CRA.
In Champion, this Court addressed, as a matter of first impression, whether an
employer could be held vicariously liable for quid pro quo sexual harassment under the
CRA. In that case, the plaintiff worked as a security guard, and her immediate supervisor
scheduled her work, trained her, oversaw her performance, and was responsible for
disciplining her. During a weekend shift, the supervisor, who had been making sexually
suggestive comments to the plaintiff, led her to a remote area of the building, locked her
in a room, and demanded sex. When the plaintiff refused, the supervisor forcibly raped
her. The plaintiff sued her employer for quid pro quo sexual harassment under the CRA.
propensities.” Hersh, 385 Mich at 413, 415. As we have indicated, evidence of
dissimilar violent conduct is not reasonably predictive of violent sexual conduct. Nor can
it be said that a reasonable employer could genuinely have foreseen Johnson’s sexual
assault of plaintiff on the basis of a single instance of entirely dissimilar violent conduct
that arose as a result of provocation by a male inmate 13 years earlier. The dissenting
justices fail to recognize that the temporal distance and the dissimilarity between past
conduct and the conduct at issue make it unreasonable to conclude that an employer
could have foreseen that Johnson would engage in quid pro quo sexual harassment or
commit a criminal sexual assault.
37
Champion, 450 Mich at 712 n 6.
14
The defendant argued that the supervisor was not acting as its agent when he raped the
plaintiff because it had not authorized the rape.38
The Champion Court rejected the defendant’s argument, reasoning that “under
defendant’s construction, an employer could avoid liability simply by showing that it did
not authorize the sexually offensive conduct.”39 The Court indicated that the defendant’s
“construction of agency principles [was] far too narrow” and briefly cited in support the
aided-by-agency exception articulated in § 219(2)(d) of the Second Restatement of
Agency.40 The Court further stated that
[the defendant’s view] fails to recognize that when an employer gives its
supervisors certain authority over other employees, it must also accept
responsibility to remedy the harm caused by the supervisors’ unlawful
exercise of that authority. From his scheduling decisions that allowed him
to work alone with [the plaintiff] to his ordering of her into a remote part of
the building, [the supervisor] used his supervisory power to put [the
plaintiff] in the vulnerable position that led to her rape. In fact, there is
little doubt that [the supervisor] would have been unable to rape [the
plaintiff] but for his exercise of supervisory authority.[41]
38
Id. at 705-707.
39
Id. at 713.
40
Id. at 712 n 6. 1 Restatement Agency, 2d, § 219(2), p 481, provides that
[a] master is not subject to liability for the torts of his servants acting
outside the scope of their employment, unless:
* * *
(d) the servant purported to act or to speak on behalf of the principal
and there was reliance upon apparent authority, or he was aided in
accomplishing the tort by the existence of the agency relation.
41
Champion, 450 Mich at 712 (citation omitted).
15
Citing multiple federal cases, the Champion Court held that “an employer [is] strictly
liable where the supervisor accomplishes the rape through the exercise of his supervisory
power over the victim.”42 The Court justified its holding on the basis that “employers
rarely, if ever, authorize such conduct, [and consequently] employees would no longer
have a remedy for quid pro quo sexual harassment.”43
Four years later, this Court again considered a quid pro quo sexual harassment
claim in Chambers v Trettco, Inc.44 There, a supervisor subjected the plaintiff to sexually
offensive conduct. After enduring this conduct for four days, the plaintiff reported the
incidents to another supervisor and ultimately sued her employer for hostile-environment
and quid pro quo sexual harassment. A jury returned a verdict in the plaintiff’s favor, and
the Court of Appeals affirmed. The Court of Appeals in Chambers referred to federal
caselaw that applied the federal Civil Rights Act45 to hold that employers are vicariously
liable when a supervisor victimizes a subordinate by creating a hostile work environment.
This Court granted leave to consider whether principles derived from federal
caselaw should apply to claims brought under Michigan’s CRA. We held that courts
considering claims under Michigan’s CRA must adhere to Michigan precedent and the
42
Id. at 713-714. Since our decision in Champion, the drafters of the Third Restatement
of Agency have excluded the aided-by-agency exception included in the Second
Restatement of Agency.
43
Id. at 713.
44
Chambers, 463 Mich 297.
45
42 USC 2000e et seq.
16
language of the CRA.46 We clarified the law regarding sexual harassment in employment
under the Michigan CRA and recognized that the “statute expressly addresses an
employer’s vicarious liability for sexual harassment committed by its employees by
defining ‘employer’ to include both the employer and the employer’s agents.”47 Using
this definition, we determined that the Michigan CRA specifically incorporates common-
law principles of respondeat superior and that “whether analyzing quid pro quo
harassment or hostile environment harassment, the question is always whether it can be
fairly said that the employer committed the violation—either directly or through an
agent.”48
After our decisions in Champion and Chambers, this Court considered the doctrine
of respondeat superior generally in Zsigo v Hurley Med Ctr.49 Although Zsigo did not
involve a civil rights claim, the plaintiff sought to hold the defendant-employer
vicariously liable for various intentional tort claims using the reasoning in Champion and
the aided-by-agency exception to the doctrine of respondeat superior. The underlying
facts involved a sexual assault perpetrated by the defendant’s employee against the
plaintiff, who had been admitted as a patient in the defendant hospital. The plaintiff
46
Chambers, 463 Mich at 316.
47
Id. at 310.
48
Id. at 312.
49
Zsigo, 475 Mich 215. This Court did consider a single intervening civil rights case
concerning quid pro quo sexual harassment, but the resolution of that case did not require
application of the doctrine of respondeat superior because the plaintiff failed to establish
that sexual harassment had occurred. See Corley v Detroit Bd of Ed, 470 Mich 274; 681
NW2d 342 (2004).
17
reported the incident and subsequently sued the hospital on the basis of the employee’s
actions.
We rejected the plaintiff’s theory of vicarious liability and any notion that
Michigan common law recognized the aided-by-agency exception or that this Court had
adopted it in Champion.50 With regard to Champion’s reference to the aided-by-agency
exception, we explained that Champion did not adopt the aided-by-agency exception, but
referred to it “only in passing and on the basis of the very distinct facts of that civil rights
matter.”51 We further explained that Champion applied only in the context of quid pro
quo sexual harassment under MCL 37.2103(i) and, in such instances, “the sexual assault
must be ‘accomplished through the use of the supervisor’s managerial powers.’”52 We
ultimately rejected the plaintiff’s theory of liability because it would have subjected
employers to strict liability for unforeseen acts occurring outside the scope of an
employee’s employment.53 Accordingly, the Zsigo Court declined to adopt the aided-by-
agency exception and limited its applicability to the specific facts of the civil rights claim
in Champion.
50
Zsigo, 475 Mich at 221-224.
51
Id. at 223-224.
52
Id. at 224 n 19, quoting Champion, 450 Mich at 704.
53
Zsigo, 475 Mich at 227.
18
D. CHAMPION WAS WRONGLY DECIDED
Because Zsigo involved intentional tort claims, it did not provide an opportunity to
address the validity of Champion in the civil rights context.54 Zsigo required us to
consider whether Michigan common law recognized the aided-by-agency exception,
given the intentional tort claims at issue. The present matter now places Champion’s
continued validity squarely before us, and we conclude that Champion cannot be
reconciled with Chambers, Zsigo, or the CRA itself.
First, we note that Champion’s holding was contrary to the plain language of the
CRA. As we explained in Chambers, the CRA specifically incorporates common-law
agency principles in its definition of “employer.”55 Michigan’s common-law agency
principles, however, do not include the aided-by-agency exception,56 and the Legislature
did not modify the common law by including the aided-by-agency exception in the
CRA.57 The Champion Court failed to recognize this clear intent. Rather, like the
dissenting justices here, the Champion Court reasoned that the remedial purpose of the
54
Although Justice YOUNG recognized that the exception to respondeat superior that
Champion created was “hard to square . . . with any conventional notion of agency,
and . . . stands as an isolated, inexplicable exception” to this Court’s agency
jurisprudence, the Court was constrained to merely limit the application of Champion
given that no civil rights claim was at issue in Zsigo. Id. at 232 (YOUNG, J., concurring).
55
See Chambers, 463 Mich at 310-311.
56
See Zsigo, 475 Mich at 223-224.
57
The common law remains in force until it is affirmatively modified. Const 1963, art 3,
§ 7. The Legislature is presumed to know the common law, and any abrogation of the
common law must be explicit. Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20,
28; 780 NW2d 272 (2010).
19
civil rights law justified holding the defendant employer vicariously liable for the acts of
its employee, based on an apprehension that adherence to traditional agency principles
would completely foreclose employer liability for quid pro quo sexual harassment
claims.58
Aside from failing to give effect to the Legislature’s intent, this reasoning is
flawed for two additional reasons. First, it wrongly elevates the CRA’s general remedial
purpose above its plain language. Such reasoning is contrary to the cornerstone of
statutory interpretation, which is the rule that the plain language used is the best indicator
of the Legislature’s intent.59 Second, the policy concern at the heart of Champion is
fundamentally flawed because it was premised on an unfounded fear. Application of
traditional agency principles does not foreclose employers from vicarious liability in the
context of quid pro quo sexual harassment claims. An employer may still be liable for
and act of quid pro quo sexual harassment that was committed within the scope of
employment or for a foreseeable act that was committed outside the scope of
58
Champion, 450 Mich at 713. While the dissenting justices are correct that the purpose
of a statute may be a relevant consideration, post at 3 n 3, what they fail to recognize is
that this is correct only in so far as the purpose of the statute is derived from the actual
language of the statute. See Mich Ed Ass’n v Secretary of State (On Rehearing), 489
Mich 194, 202-203; ___ NW2d ___ (2011) (“The clear purpose of [the statute], as
reflected in its language, is to mandate the separation of the government from politics in
order to maintain governmental neutrality in elections, preserve fair democratic
processes, and prevent taxpayer funds from being used to subsidize partisan political
activities.”) (emphasis added).
59
See Danse Corp, 466 Mich at 181-182.
20
employment.60 Thus, liability may certainly attach if there is sufficient cause to impute
the employee’s or agent’s acts to the employer because the employer knew of the
employee’s propensity to commit the type of act involved.
The Champion Court compounded its erroneous holding by relying on federal
caselaw.61 Unlike the federal civil rights act, the Michigan CRA specifically incorporates
Michigan common-law agency principles. Hence, unlike federal courts applying the
federal civil rights act, Michigan courts applying the Michigan CRA are bound by this
state’s common-law agency principles. Because federal courts are not so bound, their
reasoning in this context is often inapposite given that the language of the CRA must
guide our decisions. For this reason, the Michigan Legislature’s choice to incorporate
agency principles into the CRA forecloses reliance on federal cases when determining
whether a defendant will be vicariously liable under the CRA.62
Finally, we note that Champion is contrary to both prior and subsequent caselaw.
Before Champion, this Court had never held that an employer could be vicariously liable
for the unforeseeable criminal acts of its employees. Subsequent caselaw attempted to
limit Champion’s applicability, but that caselaw merely demonstrated Champion’s
60
Application of traditional respondeat superior principles also does not foreclose other
avenues of legal recourse, including pursuit of direct criminal and civil liability against
the perpetrator.
61
See Champion, 450 Mich at 712 n 8, citing Karibian v Columbia Univ, 14 F3d 773
(CA 2, 1994), Kauffman v Allied Signal, Inc, 970 F2d 178 (CA 6, 1992), Horn v Duke
Homes, 755 F2d 599 (CA 7, 1985), Craig v Y & Y Snacks, Inc, 721 F2d 77 (CA 3, 1983),
Katz v Dole, 709 F2d 251 (CA 4, 1983), Henson v City of Dundee, 682 F2d 897 (CA 11,
1982), and Miller v Bank of America, 600 F2d 211 (CA 9, 1979).
62
Chambers, 463 Mich at 315-316.
21
dubious validity. Chambers recognized that the CRA incorporates common-law agency
principles, and Zsigo made it clear that the aided-by-agency exception is not a part of this
state’s common law. Thus, contrary to the mandates of Chambers and Zsigo, Champion
requires the application of an exception to respondeat superior in the context of quid pro
quo sexual harassment claims that is not a part of this state’s common law.63 Because
Champion requires a result contrary to prior and subsequent caselaw and contrary to the
language of the CRA, it is clear that Champion is not consistent with Michigan law.
Rather, when considered in the context of our jurisprudence, Champion stands as an
isolated aberration that relies not on the plain language of the act, but purely on policy
considerations.
E. STARE DECISIS
Our inquiry does not end simply because we have concluded that Champion was
wrongly decided. Rather, we must determine whether overruling Champion is the most
appropriate course of action. This is a decision that we do not undertake lightly and will
make “only . . . after careful consideration of the effect of stare decisis.”64 However, we
63
Significantly, the drafters of the Third Restatement of Agency chose to exclude the
aided-by-agency exception, thereby implicitly recognizing that the exception is not
consistent with generally accepted common-law agency principles. While the dissenting
justices dismiss this authority as unpersuasive, they ignore the fact that the aided-by-
agency exception is not a “widely accepted exception to the general rules of agency.”
Post at 9. Only a few jurisdictions have adopted the exception wholesale into their
common law, such that it applies to a typical tort claim. And, as we have explained,
Michigan explicitly rejected the exception in Zsigo because it is inconsistent with
fundamental principles of Michigan common law.
64
Haynie v Dep’t of State Police, 468 Mich 302, 314; 664 NW2d 129 (2003).
22
are also mindful that we are under no obligation to let stand an erroneous decision in the
interest of stability and continuity.65 We consider a multifactored test when determining
whether to overrule precedent. The first question is whether the decision at issue was
wrongly decided.66 Having already addressed this question, we must now consider
whether Champion “defies ‘practical workability’” and “whether reliance interests would
work an undue hardship . . . .”67 These factors weigh in favor of overruling Champion.
First, despite our attempt in Zsigo to limit Champion to claims involving quid pro
quo sexual harassment affecting employment, the present matter demonstrates that it is
not possible to limit Champion in this respect. No meaningful distinction can be drawn
between the facts in Champion and those in the present matter. Both Johnson and the
supervisor in Champion were able to commit the rapes through their positions of
authority over their victims. In both cases, the employers’ agents had discretionary
control over their victims by virtue of their positions: the supervisor in Champion was
able to dictate the victim’s schedule and order her to certain parts of the building, and
Johnson had the authority to constrain plaintiff’s freedom and to move her to certain parts
of the jail. Certainly factual distinctions exist between Champion and the present case.
Johnson was not plaintiff’s supervisor in an employment context, and he could not have
made plaintiff come to the building where he worked, unlike the supervisor in Champion.
Yet these dissimilarities do not detract from the fact that Johnson would not have been
65
Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000).
66
Id.67
Id.23
able to commit the sexual assault but for his position of authority over plaintiff, much like
the supervisor in Champion.
Indeed, Champion’s distortive impact, which is manifested when a plaintiff
attempts to circumvent traditional rules of respondeat superior or otherwise attempts to
avoid governmental immunity by framing a claim under the CRA, is apparent in lower
court decisions of this state and further demonstrates Champion’s unworkability.68 This
is because there is no way to effectively limit the rule announced in Champion, despite
our prior attempt to do so. The reasoning on which Champion justified its holding is
applicable not only to every quid pro quo sexual harassment case in which a plaintiff
pursues a theory of vicarious liability—regardless of whether the discriminatory conduct
affected employment, public services, or accommodations—but also to intentional tort
claims in which a plaintiff seeks to hold an employer vicariously liable. Under
Champion, it will always be “foreseeable” that employees who possess some authority by
virtue of the employment relationship will abuse the power with which they have been
vested when they commit, as here, a criminal act against another in the workplace.
68
The Court of Appeals decision in this case is one example, see Hamed, 284 Mich App
681, as is the plaintiff’s attempt in Zsigo to hold the employer vicariously liable for its
employee’s unforeseeable criminal act. See also Diamond v Witherspoon, 265 Mich App
673, 690-691; 696 NW2d 770 (2005) (presuming strict vicarious liability and rejecting
governmental immunity in the context of a quid pro quo sexual harassment case under the
CRA when a police officer subjected detained individuals to sexual conduct), and Salinas
v Genesys Health Sys, 263 Mich App 315; 688 NW2d 112 (2004) (rejecting the
plaintiff’s attempt to hold the employer vicariously liable in tort for an unforeseeable
criminal act under Champion).
24
Second, with regard to reliance interests, we cannot conclude that Champion “has
become so embedded, so accepted, so fundamental, to everyone’s expectations” that
overruling it would upset any real-world reliance interests.69 For there to be reliance,
knowledge of a decision “must be of the sort that causes a person or entity to attempt to
conform his conduct to a certain norm before the triggering event.”70 There is no
indication that plaintiff or defendants relied on Champion by conforming their conduct
before the underlying event—and, given the nature of the rule in Champion, it is unclear
what form such reliance could have taken. It would be illogical to conclude that
defendants condoned the sexual assault because of Champion, given that Champion
would have imposed vicarious liability for the unforeseeable criminal acts of defendants’
agent. Nor would it be reasonable to suggest that plaintiff altered her conduct in reliance
on Champion. We simply fail to see any possible way defendants and plaintiff could
assert reliance on Champion.
Further, when the decision at issue involves statutory law, the best indicator of
society’s knowledge of the law, and what society reasonably relies on, is the language of
the statute itself.71 As we have explained, nothing in the language of the CRA eviscerates
common-law rules of respondeat superior or otherwise engrafts the aided-by-agency
69
Robinson, 462 Mich at 466.
70
Id. at 467.
71
See id. (stating that “it is well to recall in discussing reliance, when dealing with an
area of the law that is statutory . . . , that it is to the words of the statute itself that a
citizen first looks for guidance in directing his actions”).
25
exception into the statute. Accordingly, a decision to overrule Champion would not
create any real-world dislocations.
Finally, further justification for overruling Champion can be found in the adverse
practical consequences that would result from extending the case to the present matter.
As we explained in Zsigo, “it is difficult to conceive of an instance when the [aided-by-
agency] exception would not apply because an employee, by virtue of his or her
employment relationship with the employer[,] is always ‘aided in accomplishing’ the
tort.”72 Such an all-encompassing exception would apply equally to public-service
cases.73 Consequently, adoption of the aided-by-agency exception would effectively
abolish the doctrine of respondeat superior in quid pro quo civil rights cases affecting
public services and would result in the imposition of strict liability on governmental
entities. In short, the exception would swallow the rule. Contrary to the current
requirements for imposing vicarious liability, if the exception were adopted, a plaintiff
would merely have to allege quid pro quo harassment and show that he or she was the
victim of an intentional act by an employee in a particular custodial environment.
Providers of public services would be liable for the unforeseeable criminal acts of their
72
Zsigo, 475 Mich at 226.
73
In Zsigo, this Court noted that to adopt a rule contrary to that of the traditional common
law would mean that the rule “applies to a broad range of employees whose duties grant
them unique access to and authority over others, such as . . . correctional officers,”
which “could virtually ‘eviscerate[] the general scope of employment rule.’” Zsigo, 475
Mich at 230, quoting Doe v Forrest, 2004 VT 37, ¶ 59; 176 Vt 476, 505; 853 A2d 48
(2004) (Skoglund, J., dissenting) (quotation marks omitted; emphasis added; alteration in
original).
26
employees as long as claimants could couch their claims under the CRA, and the dangers
of such a broad basis for seemingly unlimited strict liability, discussed earlier in this
opinion, would become realities. Such a standard would apply to a wide range of public-
service providers whose employees interact regularly with recipients of public services,
including teachers, correctional and probation officers, physicians, nurses, and
firefighters, to name a few.74 Because public entities cannot increase prices or otherwise
alter business practices to absorb the increased risk of liability, a governmental agency’s
only option may be to cut funding or curtail beneficial public programs. In justifying our
decision to overrule Champion on this basis, we do not downplay the heinous nature of
the crime that plaintiff suffered. However, permitting liability against defendants under
these circumstances would impose too great a burden on public-service providers and on
society in general, which is clearly contrary to the Legislature’s intent.75
We therefore conclude that Champion was wrongly decided and that overruling it
would not interfere with legitimate reliance interests. We overrule Champion because it
is inconsistent with longstanding Michigan law that employers, including public-service
74
Artful pleading would also allow a plaintiff to avoid governmental immunity under the
governmental tort liability act (GTLA), MCL 691.1401 et seq. A school district, for
example, could not be vicariously liable in tort for a teacher’s sexual molestation of a
student because the GTLA would bar the claim. However, if the plaintiff styled its claim
as a CRA action, the school district could be vicariously liable under a theory of quid pro
quo sexual harassment affecting public services. Plaintiff’s preferred approach, under
which public-service providers would be strictly liable for precisely the same conduct as
that for which they would typically be immune, is inherently inconsistent with the
Legislature’s intent. If the Legislature had intended such a result, it should have clearly
abrogated the common-law rule for purposes of the CRA.
75
See Brown, 478 Mich at 557-558, and the discussion at page 11 of this opinion.
27
providers, are not vicariously liable for quid pro quo sexual harassment on the basis of
the unforeseeable criminal acts of their employees.76
F. RESPONSE TO THE DISSENTS
We disagree with the dissenting justices regarding whether Champion was
correctly decided and should be overruled. Although the dissenting justices concede that
Champion was unprecedented, they adhere to Champion’s reasoning to conclude that the
exception to common-law agency principles is necessary to give effect to the broad
purpose of the CRA and the Legislature’s intent in enacting it. Yet the dissenting
justices’ conclusion that Champion was correctly decided for this reason ignores the
fundamental flaws inherent in Champion. Notably, the dissenting opinions, like
Champion, do not cite any language from the CRA to support this view, even though a
statute’s language is the best indicator of the Legislature’s intent. Instead, the dissenting
justices rely on caselaw describing the CRA as “remedial,” just as Champion did, for the
proposition that “the exception to common-law agency principles established in
Champion is necessary to give effect to the broad purpose of the CRA . . . .”77
76
Because we have decided that defendants cannot be held vicariously liable for
Johnson’s criminal act under the CRA, we need not address defendants’ alternative
arguments that the Wayne County jail is not a “public service” within the meaning of the
CRA or that the circuit court improperly permitted plaintiff to amend the complaint.
77
Post at 3 (CAVANAGH, J., dissenting). Likewise, the author of the other dissent cites no
specific language and provides no analysis in support of her accusation that our decision
is somehow “contrary to the rule of law” or “results in the dismantling of the [CRA].”
Post at 2 (HATHAWAY, J., dissenting). Rather, as we have explained at great length, our
decision honors both our common-law tradition and the language of the CRA and is
consistent with that statute’s purpose.
28
Apparently, this “necessity” is based on the dissenting justices’ concern, as was the
concern in Champion, that without the exception, discriminatory conduct would not be
eradicated and the purpose of the CRA would be defeated.78 This fear vastly overstates
the effect of our decision because, as we have explained, employers and public-service
providers will still be vicariously liable for sexual harassment under traditional and
longstanding principles of respondeat superior. In short, the dissenting justices’ reliance
on Champion itself for the proposition that Champion was correctly decided lacks merit
for reasons we have already explained.79
The dissenting justices compound their erroneous reasoning by wrongly
interpreting subsequent opinions of this Court as confirming that Champion was correctly
decided and as explicitly confirming that Champion adopted an exception “very similar
to the aided-by-agency exception.”80 Contrary to the dissenting justices’ view, Zsigo did
not expressly confirm Champion in this regard, and Chambers did not expressly hold that
Champion is a valid part of Michigan’s common law, both of which the dissenting
78
The dissenting justices’ concern in this regard is related to their failure to recognize
plaintiff’s claim for what it really is: an attempt to hold a governmental entity liable for
an employee’s criminal action and unforeseeable intentional tort.
79
Indeed, the dissenting justices concede that the “bulk of [their] analysis” relies only on
Champion, post at 8 n 7, which we have explained at length is a decision not supported in
Michigan’s law generally, and thereby effectively admit that no other binding Michigan
law supports their conclusion other than Champion. Simply because Champion was a
unanimous decision decided 15 years ago does not mean it was correctly decided or that
its reasoning is correct today. Not only do the dissenting justices ignore the plain
language of the CRA, they also ignore subsequent changes in the law that have exposed
the flaws in Champion’s reasoning. See pages 21-22 and note 63 of this opinion.
80
Post at 6.
29
justices suggest.81 Further, although the dissenting justices acknowledge that the CRA
incorporates common-law agency principles, they then ignore the explicit and
unambiguous holding in Zsigo, namely that this Court has never recognized the aided-by-
agency exception, or a similar rule, as part of this state’s common law. Despite Zsigo’s
unambiguous holding, the dissenting justices continue to declare that Champion should
be applied in sexual discrimination cases because the exception can be “narrowly
tailored.”82 The Zsigo majority rejected any notion that the exception had such
boundaries, which demonstrates that Zsigo does not support Champion in this regard.
Thus, it is the dissenting justices who seek to aggressively expand the law of this state,
while our holding merely reaffirms and applies traditional common-law rules that have
always governed in Michigan.
Not surprisingly, using the faulty premise that Champion’s reasoning is correct,
the dissenting justices advocate a straightforward application of Champion. This
approach ignores an irreconcilable tension in our law. Although Champion and this case
are similarly framed civil rights cases involving allegations of quid pro quo sexual
81
In fact, contrary to the dissenting justices’ position, Zsigo did undermine the primary
rationale of Champion. The Zsigo Court did not entirely “dispatch the exception created
in Champion,” post at 7 n 6, because Zsigo was not a civil rights case.
82
Post at 8. The dissenting justices’ position that Champion was correctly decided on
this basis relies primarily on the dissenting opinion in Zsigo, which is not binding
precedent. The dissenting justices in this case disregard this criticism, asserting that the
dissenting opinion in Zsigo is an “example” of Champion’s workability. Post at 8 n 7.
Yet, the rationale of the dissent in Zsigo lacks any persuasive value because, like the
main dissent here, the Zsigo dissent repeatedly advocated adopting the aided-by-agency
exception and the Vermont Supreme Court’s decision in Doe. This Court has already
explicitly rejected both as inconsistent with Michigan law.
30
harassment, the conflicting dispositions in the courts below demonstrate the tension
between the multiple precedents of this Court at issue in this case. The circuit court
below relied on Zsigo to grant summary disposition to defendants, recognizing that Zsigo
established “a very clear bright line rule” that an employer is not liable when an
employee unforeseeably acts outside the scope of his employment, as was the case here.
The Court of Appeals reversed, relying instead on Champion, which had never been
applied outside the employment context, for the proposition that a public-service provider
may be vicariously liable when its employee uses his or her “authority over a subordinate
as a means of subjecting that subordinate to abusive and unlawful conduct.” Thus, in this
case, we are presented with conflicting principles: those of the traditional common-law
rule that have guided Michigan law for more than a century as articulated in Zsigo and
those underlying the rule of Champion, which inexplicably departed from the
requirements that have always been held as necessary to impose respondeat superior
liability. The existence of these conflicting precedents and principles cries out for clarity
and compels our decision to overrule Champion.
Further, we disagree with the main dissent’s view that principles of stare decisis
do not support overruling Champion. The main dissent applies a stare decisis test set
forth in Petersen v Magna Corp83 that is not the law of this state. Because a majority of
this Court did not adopt that test, and a majority of justices have agreed to the rule
83
Petersen v Magna Corp, 484 Mich 300, 313-320; 773 NW2d 564 (2009) (opinion by
MARILYN KELLY, C.J.).
31
articulated in Robinson v Detroit,84 the test in Robinson governs this analysis.
Nevertheless, overruling Champion is the right result, regardless of which test is applied.
The most basic error in the main dissent’s stare decisis analysis is its
misunderstanding of why Champion is unworkable. The dissent posits that the aided-by-
agency exception is “narrowly tailored” because it applies only when an agency
relationship aided a supervisor in committing a wrongful act.85 According to the dissent,
the exception does not apply when an agency relationship merely provided a supervisor
an opportunity to accomplish a wrong. This interpretation is nothing more than a
semantic exercise that demonstrates the capricious nature of Champion: An employment
relationship will always provide a supervisory employee an opportunity to commit a
wrong, but when does that opportunity become an “aid”? Similarly, in the public-
services context, a citizen’s interaction with an employee administering public services
will always arise during the administration of those services while the employee is
exercising his or her authority; when are public-service employees “aided” and when are
they not “aided” while exercising their authority? There is no meaningful demarcation.86
Continued adherence to Champion would require jurors and judges to determine
vicarious liability according to their subjective whims. For this same reason, the
84
Robinson, 462 Mich 439.
85
Post at 8-9 (CAVANAGH, J., dissenting).
86
The main dissent counters that application of the Vermont Supreme Court’s three-
pronged test would amount to “a narrowly tailored approach to applying the aided-by-
agency exception . . . .” Post at 13. Yet this test suffers from the same deficiencies we
have already described because it makes no valid distinction between a mere
“opportunity” and an “aid.”
32
dissent’s view that Champion provides “important guidance to trial courts” is simply
wrong.87
Finally, we find unpersuasive the main dissent’s reliance on decisions from other
jurisdictions that have applied the aided-by-agency exception in the context of their civil
rights laws. If liability is to be imposed under Michigan law on an employer for sexual
harassment committed by its employee, that liability must be mandated by the Michigan
CRA.88 The aided-by-agency exception in the context of civil rights cases is not so well
accepted and “nearly unanimous” as the main dissent appears to claim.89 Most states
have not recognized the aided-by-agency exception in civil rights cases and, at least with
respect to the jurisprudence of this Court, application of the aided-by-agency exception
remains an aberration.
IV. CONCLUSION
Michigan law has never imposed liability on an employer for the unforeseeable
criminal actions of its employees, except in Champion. Nor has Michigan common law
incorporated an exception based on an aided-by-agency theory of liability. Accordingly,
87
Post at 14. The main dissent also misconstrues our citation of Diamond and Salinas.
Those cases do not demonstrate Champion’s workability. Rather, they are examples of
“artful pleading” in which the plaintiffs sought to circumvent traditional rules of
respondeat superior by framing their claims under the CRA. See note 74 of this opinion.
88
Notably, the main dissent ignores the mandate of Chambers to consider the language of
the Michigan CRA of paramount importance when interpreting the Michigan CRA as
opposed to any guidance that federal caselaw may provide. Chambers, 463 Mich at 313-
314.
89
Post at 15.
33
we conclude that a provider of a public service may not be held vicariously liable for quid
pro quo sexual harassment affecting public services on the basis of unforeseeable
criminal acts that its employee committed outside the scope of employment. Because
Champion is inconsistent with our holding and with Michigan’s common and statutory
law, we overrule Champion. We reverse the Court of Appeals’ judgment and reinstate
the circuit court’s order granting summary disposition in favor of defendants.
Mary Beth Kelly
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra
34
STATE OF MICHIGAN
SUPREME COURT
TARA KATHERINE HAMED,
Plaintiff-Appellee,
v No. 139505
WAYNE COUNTY and WAYNE
COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellants,
and
SERGEANT KENNETH DARWISH,
CORPORAL NETTIE JACKSON,
SHERIFF WARREN C. EVANS, and
DEPUTY REGINALD JOHNSON,
Defendants.
CAVANAGH, J. (dissenting).
I dissent from the majority’s decision to overrule Champion v Nation Wide
Security, Inc, 450 Mich 702; 545 NW2d 596 (1996), a unanimous decision of this Court. 1
As the majority flatly admits, there are no significant factual differences between this
case and Champion. Accordingly, because Champion was correctly decided and reflects
the purpose and legislative intent of the Michigan Civil Rights Act (CRA), MCL 37.2101
1
The concurring justices joined the analysis in full. See Champion, 450 Mich at 714(BOYLE, J., concurring).
et seq., I would apply Champion to this case and affirm the judgment of the Court of
Appeals.
I. SUMMARY OF CHAMPION
In Champion, the plaintiff’s supervisor offered job security in exchange for sexual
favors, and when the plaintiff refused, the supervisor used his authority to isolate the
plaintiff in a remote portion of the building where they worked and raped her.2 This
Court explained that under MCL 37.2103(i), a party pursuing a quid pro quo harassment
claim in an employment context must establish “(1) that she was subject to any of the
types of unwelcome sexual conduct or communication described in the statute, and (2)
that her employer or the employer’s agent used her submission to or rejection of the
proscribed conduct as a factor in a decision affecting her employment.” Champion, 450
Mich at 708-709. Like defendants in this case, the defendant in Champion argued that
the plaintiff could not satisfy the second prong of a quid pro quo sexual harassment claim
because the attacker was acting outside the scope of his authority when he raped the
plaintiff and, as a result, was not acting as the defendant’s agent. This Court
unanimously rejected that argument, stating that “when an employer gives its supervisors
certain authority over other employees, it must also accept responsibility to remedy the
harm caused by the supervisors’ unlawful exercise of that authority.” Id. at 712. We
2
Although many opinions address this issue in the context of workplace supervisor-
subordinate relationships, those opinions are applicable to this case because the analysis
is largely rooted in the recognition that a supervisor wields substantial authority over a
subordinate, just as a sheriff’s deputy, acting under color of law, holds significant
authority over a jail inmate.
2
further noted that “an employer rarely authorizes an agent to break the law or otherwise
behave improperly; yet, liability is frequently imputed to an employer for such conduct.”
Id. at 712 n 7.
In concluding that the plaintiff could pursue a quid pro quo sexual harassment
claim against the defendant, Champion explained that a contrary result would “create an
enormous loophole in the statute” that “would defeat the remedial purpose underlying
this state’s civil rights statute and would lead to a construction that is inconsistent with
the well-established rule that remedial statutes are to be liberally construed.” Id. at 713,
citing Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988).
II. CHAMPION WAS CORRECTLY DECIDED
The majority claims that Champion “was contrary to the plain language of the
CRA,” ante at 19, and, thus, was wrongly decided. Although I generally agree with the
majority that the CRA incorporated the common law of agency, the exception to
common-law agency principles established in Champion was necessary to give effect to
the broad purpose of the CRA and the Legislature’s intent in enacting it. See Henson v
City of Dundee, 682 F2d 897, 910 n 21 (CA 11, 1982) (recognizing that “[t]he common
law rules of respondeat superior will not always be appropriate to suit the broad remedial
purposes” of civil rights statutes).3 Furthermore, this Court has previously considered the
3
This Court has recognized that the purpose of a statute is a relevant consideration when
applying the statute in a broad array of cases. See, e.g., Adair v Michigan, 486 Mich 468,
477; 785 NW2d 119 (2010) (stating that “the primary and fundamental rule of
constitutional or statutory construction is that the Court’s duty is to ascertain the purpose
and intent as expressed in the constitutional or legislative provision in question”)
3
purpose of the CRA as a method of discerning the legislative intent behind the act. See
Victorson v Dep’t of Treasury, 439 Mich 131, 143-144; 482 NW2d 685 (1992). Indeed,
even the majority recognizes that a statute’s purpose is a relevant consideration in
determining the legislative intent. See ante at 20 n 58.
The CRA recognizes that “freedom from discrimination because of sex is a civil
right.” Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000). Thus, the
CRA is intended to “remedy[] discrimination in employment, . . . public
accommodations, services, and educational institutions.” Eide, 431 Mich at 31; see, also,
Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (“The Michigan
civil rights act is aimed at the prejudices and biases borne against persons because of
their membership in a certain class . . . and seeks to eliminate the effects of offensive or
demeaning stereotypes, prejudices, and biases.”) (quotation marks and citations
omitted).4 Furthermore, as the majority acknowledges, the CRA is a remedial statute,
and “remedial statutes are to be liberally construed . . . .” Eide, 431 Mich at 34.
(emphasis added). Indeed, the members of the majority in this case recently found the
purpose of the Michigan Campaign Finance Act worthy of lengthy consideration in Mich
Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194; ___ NW2d ___ (2011).
4
The majority’s suggestion that the language of the CRA does not support this
interpretation of the act’s purpose is remarkable, given than this Court’s opinions in Eide,
Miller, and many other cases have similarly summarized the CRA’s purpose. See, e.g.,
Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993) (quoting the CRA and
concluding that “[t]he Civil Rights Act is aimed at the prejudices and biases borne against
persons because of their membership in a certain class, and seeks to eliminate the effects
of offensive or demeaning stereotypes, prejudices, and biases”) (quotation marks and
citations omitted); see, also, MCL 37.2102, MCL 37.2202, and MCL 37.2302.
4
In light of this understanding of the CRA’s purpose and the Legislature’s intent in
enacting the CRA, I believe that Champion properly advanced the legislative intent by
ensuring that clearly discriminatory conduct is eradicated. The majority’s interpretation,
however, bars plaintiff from pursuing a claim in furtherance of this goal and ignores “the
legislative intent that employers, not the victims of sexual harassment, bear the costs of
remedying and eradicating discrimination.” Champion, 450 Mich at 714. The majority
erroneously discards Champion’s interpretation of the legislative intent as based “purely
on policy considerations,” ante at 22, and ignores the fact that the policy considerations
discussed in Champion were the motivation behind the Legislature’s enactment of the
CRA.5 As a result, “in seeking to shield employers from liability, the majority instead
places the burden of preventing an abuse of authority and the corresponding harm on
5
Ironically, the majority in this case also relies on policy considerations, claiming that
Champion creates an unfair “societal burden” and an unbearable financial burden on
employers. Ante at 11, 26-27. It is odd that the majority opinion finds it appropriate to
rely on these policy considerations while simultaneously rejecting Champion for its
consideration of the policy concerns reflected in the CRA. Setting that contradiction
aside, however, what is even more telling is the fact that Champion’s policy
considerations were rooted in the legislative intent and purpose of the CRA. Indeed, the
CRA’s title expressly states that the CRA is intended to “prohibit discriminatory
practices, policies, and customs . . . .” Title of 1976 PA 453. The majority opinion in
this case does exactly the opposite in furtherance of policy considerations that do not
appear in the CRA. Nowhere did the Legislature indicate that the “societal burden” or
the financial burden on employers is a valid consideration when interpreting and applying
the act. In fact, the CRA indicates that the Legislature intended that governmental
employers bear the cost of eliminating sexual harassment, not avoid it, as shown by the
specific inclusion of state and political subdivisions and their agents as employers
covered by the act. MCL 37.2103(g) and (h) and MCL 37.2201(a); see, also, Mack v
Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002) (noting that there are areas in which
“the Legislature has allowed specific actions against the government to stand, such as the
Civil Rights Act”).
5
people powerless to prevent it.” Zsigo v Hurley Med Ctr, 475 Mich 215, 236; 716 NW2d
220 (2006) (MARILYN KELLY, J., dissenting).
Moreover, the majority’s reliance on Chambers to support its conclusion that
Champion was wrongly decided is misplaced. In fact, Chambers expressly
acknowledged Champion’s holding as a valid part of Michigan’s common law related to
quid pro quo sexual harassment under the CRA. See Chambers, 463 Mich at 311(“Vicarious liability exists in the case of quid pro quo harassment because the quid pro
quo harasser, by definition, uses the power of the employer to alter the terms and
conditions of employment. Champion, supra.”).Similarly, the majority erroneously interprets Zsigo as supporting its conclusion
that Champion misinterpreted the CRA. The Zsigo majority expressly recognized that
the Champion Court, like many other courts, applied an exception to quid pro quo sexual
harassment claims that is very similar to the aided-by-agency exception. Zsigo, 475 Mich
at 227 n 28 (listing state and federal opinions adopting the aided-by-agency exception in
sexual harassment cases). While I continue to adhere to the Zsigo dissent’s conclusion
that a narrowly tailored interpretation of the aided-by-agency exception should be applied
outside the context of sexual harassment cases, that disagreement with Zsigo is of no
moment in this case, given that the case before us is obviously a quid pro quo sexual
6
harassment claim. Thus, under Chambers and even under the majority opinion in Zsigo,
Champion’s exception applies to this case.6
Finally, contrary to the majority’s concern that Champion created an exception
that swallows the general agency rules, Champion’s exception “does not extend unlimited
liability to employers whose supervisors rape subordinates.” Champion, 450 Mich at
713. A mere supervisor-subordinate relationship is not enough. Rather, an employer is
only liable when “the supervisor accomplishes the rape through the exercise of his
supervisory power over the victim.” Id. at 713-714 (emphasis added). As Champion
explained, this approach is “fully consistent . . . with the legislative intent that employers,
6
Although the majority is correct that Zsigo held that the aided-by-agency exception is
not a part of Michigan’s general common law, the majority’s efforts to counter this
dissent’s interpretation of Chambers and Zsigo are unavailing because both of those
opinions recognized that Champion’s exception applied in the context of quid pro quo
sexual harassment cases, as the majority acknowledges. See ante at 18; see, also,
Chambers, 463 Mich at 311 (citing Champion for the premise that “[v]icarious liability
exists in the case of quid pro quo harassment because the quid pro quo harasser, by
definition, uses the power of the employer to alter the terms and conditions of
employment”), and Zsigo, 475 Mich at 224 n 19 (recognizing that Champion applies “in
the context of quid pro quo sexual harassment under MCL 37.2103(i)”). Indeed, the fact
that the majority finds it necessary to expressly overrule Champion today further
demonstrates that Chambers and Zsigo did not dispatch the exception created in
Champion. The majority’s refusal to accept the fact that Champion has been part of
Michigan’s common law for the last 15 years does not make its view so. Rather, as this
dissent thoroughly explains, Champion is a longstanding, unanimous precedent of this
Court that is consistent with the purpose and legislative intent behind the CRA and with
the approach taken by the United States Supreme Court and many other jurisdictions in
similar civil rights cases. Accordingly, the majority is mistaken when it claims that I
seek to “aggressively expand the law of this state” while it merely seeks to “reaffirm[] . . .
common-law rules that have always governed in Michigan.” Ante at 30. Rather, as
demonstrated by its need to overrule a deep-rooted opinion of this Court, it is the majority
that embarks on an ill-advised major change in the law.
7
not the victims of sexual harassment, bear the costs of remedying and eradicating
discrimination.” Id. at 714.
Furthermore, as the dissent in Zsigo aptly explained, it is entirely possible to adopt
a narrowly tailored interpretation of the aided-by-agency exception in order to avoid
swallowing the general agency rules. Zsigo, 475 Mich at 239-243 (MARILYN KELLY, J.
dissenting).7 After reviewing various other jurisdictions’ efforts to balance the scope of
the aided-by-agency exception, the Zsigo dissent concluded that an opinion from the
Vermont Supreme Court represented the most compelling approach. See Doe v Forrest,
2004 VT 37, ¶ 21; 176 Vt 476; 853 A2d 48 (2004), citing Burlington Indus, Inc v
Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca
Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (1998). Doe explained that under
Faragher, in order to properly apply the aided-by-agency exception, a court should
consider three factors: (1) “the opportunity for contact created by the relationship,” (2)
“the powerlessness of the employee to resist the perpetrator and prevent the unwanted
contact,” and (3) “the opportunity to prevent and guard against the conduct.” Doe, 2004
7
The majority erroneously implies that I only rely on nonbinding dissenting opinions of
this Court to support my conclusion that Champion was correctly decided. Although I
think that the Zsigo dissent provides an example of a narrow, workable interpretation of
the aided-by-agency exception, the bulk of my analysis in support of my conclusion that
Champion was correctly decided rests on the reasoning from Champion’s well-
established and unanimous opinion, which was not overruled by either of the majority
opinions in Chambers and Zsigo. Surprisingly, the majority disparages my analysis for
relying on Champion’s reasoning, see ante at 29 n 79, but I am quite certain that relying
on longstanding, unanimous precedent from this state’s highest court is a well-accepted
method of legal analysis. Furthermore, I disagree with the majority’s claim that
Champion is the only “binding Michigan law” supporting my conclusion. Ante at 29
n 79. Rather, I believe that the CRA itself also supports my analysis.
8
VT 37 at ¶ 33; 176 Vt at 491. Thus, in response to the questions posed by the majority
regarding when an employer will be held liable for an employee’s conduct, see ante at
32, an employer would only be liable for quid pro quo sexual harassment arising out of
an employee’s conduct if the three factors were met, or, as Champion put it, when “the
supervisor accomplishes the rape through the exercise of his supervisory power over the
victim.” Champion, 450 Mich at 713-714 (emphasis added). Accordingly, Champion
can be applied without imposing the boundless liability that the majority fears.
In summary, Champion properly relied on the legislative intent and the purpose
behind the CRA when it adopted a widely accepted exception to the general rules of
agency. And given that the Legislature has not chosen to amend the applicable CRA
provisions during the 15 years since Champion was decided, I think that it is fair to
conclude that the Legislature believes that Champion accurately reflected the legislative
intent behind the CRA, rather than representing a dangerous departure from it, as the
majority claims. See, e.g., Devillers v Auto Club Ins Ass’n, 473 Mich 562, 613-614; 702
NW2d 539 (2005) (CAVANAGH, J., dissenting) (explaining the significance of the
Legislature’s decision not to modify a statute after this Court has interpreted it). Because
it is “‘the nature of the common law that every appellate decision represents the
development of the common law,’” Zsigo, 475 Mich at 241 n 11 (MARILYN KELLY, J.,
dissenting) (citation omitted), Champion has been a valid part of Michigan’s common
law for the last 15 years and should be applied in this case.
9
III. STARE DECISIS
In light of the preceding analysis, it is clear that Champion furthers the
Legislature’s intent when it enacted the CRA. As a result, Champion was correctly
decided and no further stare decisis consideration is needed. However, even accepting
the majority’s faulty conclusion that Champion was wrongly decided, I do not agree that
its decision to overrule Champion is supported by stare decisis principles.
The United States Supreme Court has explained that the doctrine of stare decisis
“promotes the evenhanded, predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the actual and perceived integrity
of the judicial process.” Payne v Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed
2d 720 (1991). As a result, “a stare decisis analysis should always begin with the
presumption that upholding the precedent involved is the preferred course of action.”
Petersen v Magna Corp, 484 Mich 300, 317; 773 NW2d 564 (2009) (opinion by
MARILYN KELLY, C.J.). Thus, “overturning precedent requires more than a mere belief
that a case was wrongly decided,” McCormick v Carrier, 487 Mich 180, 211; 795 NW2d
517 (2010), and the presumption in favor of upholding precedent “should be retained
until effectively rebutted by the conclusion that a compelling justification exists to
overturn the precedent,” Petersen, 484 Mich at 317 (opinion by MARILYN KELLY, C.J.).8
8
In Petersen, then Chief Justice MARILYN KELLY provided a nonexhaustive list of
criteria for consideration when a court engages in a stare decisis analysis, but no single
criterion is determinative, and a given criterion need only be evaluated if relevant.
Petersen, 484 Mich at 320. The majority’s implication that my stare decisis analysis is
10
Several of the criteria discussed in Petersen weigh particularly heavily in favor of
upholding Champion rather than overruling it: (1) Champion provided a practical and
workable rule, (2) Champion has not been robbed of significant application or
justification because it remains a highly significant and relevant guidepost in the area of
civil rights law, (3) other jurisdictions have adopted exceptions similar to the one in
Champion, and (4) overruling Champion is likely to result in serious detriment
prejudicial to public interests. See Petersen, 484 Mich at 320.9
Contrary to the majority’s claims, Champion has not proved to be unworkable, and
thus this criterion weighs in favor of upholding Champion. Again, although I disagree
with the Zsigo majority’s decision to limit Champion by applying it only to cases raising
quid pro quo sexual harassment claims, that limitation is an example of an arguably
workable bright-line rule regarding the scope of Champion’s exception. Therefore, the
invalid because I apply Petersen is misplaced, given that Petersen’s test simply expands
on the test from Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000). Further
Petersen is more respectful of precedent, and thus is more consistent with the principles
of stare decisis. See Petersen, 484 Mich at 315-319 (opinion by MARILYN KELLY, C.J.).
9
Although Chief Justice KELLY also recognized that reliance on the rule in question may
be a valid consideration when engaging in a stare decisis analysis, the majority’s
extensive reliance on this factor to support its decision to overrule Champion is
misplaced. In my view, this factor is of little importance in this case because no one
plans on being sexually harassed or employing persons who commit sexual harassment.
Thus, there is little reason for anyone to “conform his conduct to a certain norm” in
reliance on Champion. Ante at 25 (quotation marks omitted). Rather, Champion
provided a remedy for an unexpected and unwelcome event. Therefore, I find
unpersuasive the majority’s claim that Champion may be overruled because parties have
not relied on its holding to their detriment.
11
majority’s claim that Champion is unworkable because it results in unlimited vicarious
liability “despite our attempt in Zsigo to limit Champion,” ante at 23, is inexplicable.10
Indeed, the Court of Appeals opinions the majority cites in support of this claim,
ante at 24 n 68, are either irrelevant or demonstrate Champion’s workability rather than
its unworkability.
In Diamond v Witherspoon, 265 Mich App 673; 696 NW2d 770 (2005), and its
companion case, the Court of Appeals rejected a city’s claims of governmental immunity
and permitted the plaintiffs to bring quid pro quo sexual harassment claims under the
CRA based on the same city police officer’s sexual conduct during traffic stops. The
Court of Appeals explained that governmental immunity is not a defense to actions under
the CRA but did not directly address the vicarious liability issues arising out of that case.
Id. at 691. As a result, Diamond is of little import in determining Champion’s
workability.
The other opinion the majority cites in this regard, Salinas v Genesys Health Sys,
263 Mich App 315; 688 NW2d 112 (2004), actually demonstrates Champion’s
workability and exhibits the “meaningful demarcation” that the majority so desperately
10
Moreover, the majority’s claim that Champion allows plaintiffs to engage in “artful
pleading,” ante at 27 n 74, in order to “avoid governmental immunity by framing a claim
under the CRA,” ante at 24, is misplaced and, frankly, offensive. See, also, ante at 29
n 78. Plaintiff in this case, and presumably the plaintiffs in other sexual harassment
cases, bring actions under the CRA because the sexual harassment infringed on their civil
rights. By assuming that plaintiffs bring CRA claims to manipulate the judicial system,
the majority throws salt in these plaintiffs’ raw wounds.
12
seeks.11 See ante at 32. In that case, the Court of Appeals applied the aided-by-agency
exception and concluded that vicarious liability did not extend to the employer because
the attacker’s agency relationship with the defendant merely provided the attacker with
the opportunity to commit the sexual assault. Thus, the agency relationship did not aid
the attacker in committing the sexual assault. Salinas, 263 Mich App at 320-321. In my
view, Salinas provided an example of how Champion did not create limitless liability,
even in the context of quid pro quo sexual harassment claims.12
Finally, Champion itself explained that its holding “does not extend unlimited
liability to employers . . . .” Champion, 450 Mich at 713. Rather, an employer is only
liable if its employee “accomplishes the rape through the exercise of his supervisory
power over the victim.” Id. at 713-714. Such a limitation is eminently workable, as the
Court of Appeals opinion in Salinas demonstrated. Additionally, as discussed earlier in
this opinion, Vermont’s high court has provided a clear example of a narrowly tailored
approach to applying the aided-by-agency exception that would limit the scope of an
11
Moreover, as discussed earlier in this dissent, the three-prong test established in Doe,
2004 VT 37, and favored by the Zsigo dissent further establishes a “meaningful
demarcation” of an employer’s liability for an employee’s improper use of delegated
supervisory authority.
12
Contrary to the majority’s claims, the distinction exemplified by Salinas is quite clear:
if an employee is merely presented with an opportunity to commit sexual harassment by
having the employer’s permission to be in a certain location, the employer is not
vicariously liable because the employee did not use any employer-delegated authority to
aid in the creation of the opportunity to commit the sexual harassment. But if, as in
Champion and the case at bar, the employee actively uses the powers delegated by the
employer to direct the victim to a location or otherwise create circumstances that aid in
the commission of sexual harassment, vicarious liability may attach.
13
employer’s liability. Doe, 2004 VT 37 at ¶ 33; 176 Vt at 491; see, also, Zsigo, 475 Mich
at 239-243 (MARILYN KELLY, J., dissenting) (arguing in favor of adopting Doe’s three-
factor test). In sum, Champion has remained workable from the time it was first
published until its untimely demise at the hands of the majority today. Thus, this factor
weighs in favor of upholding Champion.
Champion also remains a highly significant and relevant guidepost in the area of
civil rights law, which weighs in favor of upholding it. Champion remains relevant
because it properly recognized that failing to impose liability on an employer when its
employees use supervisory powers delegated by the employer to commit quid pro quo
sexual harassment is a “far too narrow” construction of agency principles. Champion,
450 Mich at 712. As Champion explains, “immunizing an employer where it did not
authorize the offending conduct would create an enormous loophole in the statute.” Id. at
713. Therefore, Champion correctly concluded that when an employer delegates
authority to an employee, the employer must accept the responsibility of remedying the
harm caused by misuse of that authority, which is consistent with the “legislative intent
that employers, not the victims of sexual harassment, bear the costs of remedying and
eradicating discrimination.” Id. at 714. Thus, Champion provides important guidance to
trial courts and ensures that the legislative intent behind the CRA is implemented.
Accordingly, Champion should be upheld.13
13
The majority also states that because “the drafters of the Third Restatement of Agency
have excluded the aided-by-agency exception included in the Second Restatement of
Agency,” ante at 16 n 42, Champion no longer reflects the preferred approach and I
14
Further supporting the conclusion that stare decisis does not support overruling
Champion is the fact that numerous other jurisdictions have adopted the aided-by-agency
exception in the context of civil rights cases. See Petersen, 484 Mich at 320 (opinion by
MARILYN KELLY, C.J.). To begin with, as Champion stated, application of the aided-by-
agency exception is a “nearly unanimous view” in the context of quid pro quo sexual
harassment committed by supervisory personnel. Champion, 450 Mich at 712.14 The
majority opinion, however, claims that Champion and this dissent err in this
determination because it is improper to consider federal caselaw.
“ignore” this “change[] in the law,” ante at 29 n 79. To begin with, as the comments to
the Third Restatement of Agency explain, the Third Restatement now addresses “[t]he
purposes likely intended to be met by the ‘aided in accomplishing’ basis [for imposing
vicarious liability] . . . by a more fully elaborated treatment of apparent authority and by
the duty of reasonable care that a principal owes to third parties with whom it interacts
through employees and other agents” elsewhere in the Restatement. 2 Restatement
Agency, 3d, § 7.08, comment b, p 228. Thus, there has arguably been no “change[] in the
law,” given that the Third Restatement of Agency addresses the same concerns
represented by the aided-by-agency exception from the Second Restatement of Agency.
And, regardless, the Restatement has no precedential value and, thus, is not “the law.”
Champion, on the other hand, obviously has substantial precedential value as a well-
established, unanimous opinion of this Court. Accordingly, any support for overruling
Champion that the majority derives from the fact that the Third Restatement of Agency
no longer expressly includes the aided-by-agency exception is unpersuasive, especially
when, as noted later in this opinion, other jurisdictions continue to apply that exception.
14
Although the majority mistakenly attributes this premise to me, see ante at 33, it was
actually the unanimous Champion Court that concluded that its holding was consistent
with the majority of other jurisdictions. I do, however, agree with Champion’s
conclusion, given that, as explained in footnote 15 of this opinion, the United States
Supreme Court and many states apply Champion-like exceptions in the context of civil
rights cases.
15
Although the majority is correct that we are not bound by federal caselaw, it can
be instructive, particularly when the federal and state statutes at issue are similar. See,
e.g., People v Victor, 287 Mich 506, 548; 283 NW 666 (1939) (endorsing the use of
federal caselaw in applying Michigan’s Due Process Clause). Notably, the United States
Supreme Court has concluded that the federal Civil Rights Act has a “broad remedial
purpose[],” Arizona Governing Comm for Tax Deferred Annuity & Deferred
Compensation Plans v Norris, 463 US 1073, 1090; 103 S Ct 3492; 77 L Ed 2d 1236(1983), to “achieve equality . . . and remove barriers that have operated in the past to
favor an identifiable group,” Griggs v Duke Power Co, 401 US 424, 429-430; 91 S Ct
849; 28 L Ed 2d 158 (1971). Given that the legislative intent and purpose behind the
CRA and the federal Civil Rights Act are strikingly similar, the United States Supreme
Court’s decision to adopt an exception to further that purpose in Ellerth and Faragher is
persuasive authority in favor of upholding Champion.
Furthermore, regardless of whether “[o]nly a few jurisdictions have wholesale
adopted the [aided-by-agency] exception . . . such that it applies to a typical tort claim,”
ante at 22 n 63, many of our sister states have—as this Court did in Champion—adopted
comparable exceptions in the realm of civil rights sexual harassment cases in order to
accomplish goals analogous to those in the CRA.15 Thus, it is clear that Champion is not
15
See, e.g., Farmers Ins Group v Santa Clara Co, 11 Cal 4th 992, 1016 n 14; 47 Cal Rptr
2d 478; 906 P2d 440 (1995) (acknowledging that the applicable statutes “indicate that
respondeat superior and scope of employment principles are supposed to play an integral
role in fixing an employer’s liability for both supervisor and nonsupervisor sexual
harassment” but applying the aided-by-agency exception because “it is reasonably clear
16
an “inexplicable exception,” ante at 19 n 54 (quotation marks omitted), or “isolated
that the purpose underlying the comprehensive statutory scheme is to ensure that all
employers maintain their worksites free from prohibited sexual harassment, regardless of
the lack of foreseeability of such harassment in their particular enterprises”); Doe, 2004
VT 37 at ¶ 39; 176 Vt at 494 (adopting the aided-by-agency exception, in part because it
creates an “incentive for vigilance” by those in best position to prevent harassing
behavior); Lehmann v Toys ‘R’ Us, Inc, 132 NJ 587, 619; 626 A2d 445 (1993) (adopting
the aided-by-agency-exception in sexual harassment cases to ensure “just results in the
great variety of factual circumstances presented by sexual harassment cases and to
accomplish the [statutory] purposes”); Ocana v American Furniture Co, 2004-NMSC-
018, ¶ 31; 135 NM 539, 552; 91 P3d 58 (2004) (adopting the aided-by-agency theory
because it “further[s] the policies that underlie tort law” by redistributing the economic
burden from injured individuals and deterring objectionable conduct in the future);
College-Town, Div of Interco, Inc v Mass Comm Against Discrimination, 400 Mass 156,
165; 508 NE2d 587 (1987) (noting that although the court was not bound by federal
courts’ interpretation of analogous federal statutes, vicarious liability based on a standard
similar to the aided-by-agency exception was appropriate in order to remain consistent
with the statute’s purpose and clear legislative intent “that an employer be liable for
discrimination committed by those on whom it confers authority”); Frieler v Carlson
Mktg Group, Inc, 751 NW2d 558, 567-570 (Minn, 2008) (adopting the aided-by-agency
exception for sexual harassment cases as consistent with the purposes of the Minnesota
Human Rights Act); Veco, Inc v Rosebrock, 970 P2d 906, 914 (Alas, 1999) (adopting the
aided-by-agency theory because harassment by supervisors is “facilitated, made more
serious, and is less apt to be reported because supervisors are understood to be clothed
with the employer’s authority”) (citation and quotation marks omitted); Parker v Warren
Co Utility Dist, 2 SW3d 170, 176 (Tenn, 1999) (adopting the aided-by-agency exception
for sexual harassment claims under Tennessee’s human rights act for the reasons stated in
Ellerth and Faragher); American Gen Life & Accident Ins Co v Hall, 74 SW3d 688, 692
(Ky, 2002) (acknowledging that Kentucky applies the aided-by-agency exception to
sexual harassment claims under Kentucky’s civil rights act consistently with Ellerth and
Faragher); Henningsen v Worldcom, Inc, 102 Wash App 828, 843; 9 P3d 948 (2000)
(applying the aided-by-agency exception in a sexual harassment case); Wal-Mart Stores,
Inc v Itz, 21 SW3d 456, 470 (Tex App, 2000) (same); and Edwards v Ohio Institute of
Cardiac Care, 170 Ohio App 3d 619, 627-628; 868 NE2d 721 (2007) (same).
As these opinions make obvious, Champion by no means represents an earth-
shattering decision in the realm of civil rights law, and, contrary to the majority’s claim,
in no way do I “concede[] that Champion was unprecedented . . . .” Ante at 28. Rather,
because Champion accurately reflected the legislative intent behind the CRA, I believe
that Champion rests on the precedent of the CRA itself.
17
aberration,” ante at 22, nor is it “hard to square . . . with any conventional notion of
agency,” ante at 19 n 54 (quotation marks omitted). Rather, Champion reflects a well-
reasoned exception to the general rules of agency that many other jurisdictions have
adopted in order to ensure that civil and human rights statutes are successful in achieving
the goal of suppressing the evil of sexual harassment.
Finally, the fact that the majority’s decision in this case is likely to result in serious
detriment prejudicial to public interests weighs heavily in favor of upholding Champion.
See Petersen, 484 Mich at 320 (opinion by MARILYN KELLY, C.J.). As discussed at
length in this opinion, Champion properly recognized the significant public interest
embodied in the CRA and adopted a narrow exception to traditional agency rules that
accurately reflects the legislative intent to require employers to bear the costs of
remedying and eradicating discrimination. By overruling Champion, the majority instead
places that burden on the very people whom the CRA is intended to protect and who are
powerless to prevent the discrimination that the CRA is intended to eliminate. The
detriment to the public interest created by the majority opinion today is obvious and
weighs heavily in favor of affirming Champion.
In summary, Champion (1) provides a practical and workable rule in furtherance
of the purpose of the CRA, (2) has not been robbed of significant application or
justification because it remains a highly significant and relevant guidepost in the area of
civil rights law, (3) is consistent with the caselaw of other jurisdictions that have adopted
the aided-by-agency exception, and (4) avoids a serious detriment prejudicial to public
18
interests. Therefore, in my view, the principles of stare decisis do not support the
majority’s decision to overrule Champion.
IV. THE MAJORITY REACHES THE WRONG RESULT
UNDER ANY STANDARD
The majority’s application of its own standard is hopelessly flawed. The majority
immunizes defendants from liability in this case by concluding that Johnson’s acts were
unforeseeable. Ante at 13. The majority supports this conclusion by claiming that, even
when viewed in the light most favorable to plaintiff, Johnson’s past violent conduct
toward members of the public and inmates merely amounted to “a propensity to disobey
work-related protocol . . . .”16 Ante at 13. Furthermore, the majority concludes that
Johnson’s rape of plaintiff was “highly unpredictable,” ante at 10, and, “in essence,
unpreventable,” ante at 11.
The majority’s characterization of Johnson’s conduct is extraordinarily one-sided,
however. First, Johnson’s conduct was clearly not “unpreventable” because defendants
had a policy in place that required a female officer to be present anytime a female inmate
was in the jail. Presumably, the motivation behind this policy is at least in part to prevent
the type of conduct that Johnson committed in this case. Defendants violated that policy
on the night in question, which allowed Johnson to use the supervisory powers delegated
16
The majority attempts to downplay Johnson’s prior violent conduct toward inmates by
emphasizing that it was directed at a male inmate who had provoked Johnson. Although
inconvenient to the majority’s analysis, it is notable that defendants considered Johnson’s
actions “misconduct” and reprimanded him for it. Therefore, it appears that defendants
did not consider Johnson’s violent conduct toward an inmate as insignificant as the
majority would have us believe.
19
to him by defendants to violently rape plaintiff. Thus, the rape of plaintiff was entirely
preventable, had defendants merely followed their own policy. Furthermore, the fact that
such a policy existed also strongly implies that defendants considered conduct like
Johnson’s foreseeable. Therefore, regardless of whether the rape was preventable,
defendants’ policy is one of several factors that create a genuine issue of material fact
regarding whether Johnson’s conduct was foreseeable, even under the majority’s flawed
new test.17
Second, as the majority concedes, Johnson’s alleged threatening calls to his
landlord and the physical altercation with an inmate reveal Johnson’s tendency to react
violently when provoked. One would think that working as a deputy in a jail would
entail frequent provocation by inmates. Accordingly, tendencies such as those displayed
by Johnson, when viewed in the light most favorable to plaintiff, present a genuine issue
of material fact regarding whether his subsequent violent rape of an inmate was
sufficiently foreseeable to hold defendants vicariously liable.
The majority strains to support the weight of its misguided holding by citing the
majority opinion in Brown v Brown, 478 Mich 545; 739 NW2d 313 (2007).18 In Brown,
17
The majority bristles at my characterization of its test as “new.” See ante at 11 n 32.
However, given that the majority overrules Champion, which it admits would otherwise
apply to this case, classifying its test as “new” is entirely accurate, in my judgment.
18
Although I continue to adhere to my dissent in Brown, 478 Mich at 570-580(CAVANAGH, J., dissenting), I will apply the majority opinion from Brown because, even
under the Brown majority’s excessively narrow standard of foreseeability, this case
presents a genuine issue of material fact. And because I apply the rule from the majority
20
the attacker had no criminal history and had not previously committed any violent acts
but had repeatedly made heinous sexual comments to the plaintiff of which the
defendant-employer was aware. Subsequently, while working with the plaintiff on the
night shift, the attacker violently raped the plaintiff. The Brown majority concluded that
the defendant’s knowledge of the attacker’s comments alone were not sufficient to make
the subsequent rape foreseeable. Id. at 554-555. The Brown majority chastised the Court
of Appeals panel in that case for relying on Hersh v Kentfield Builders, Inc, 385 Mich
410; 189 NW2d 286 (1971), to reach the opposite conclusion because, according to the
Brown majority, Hersh was distinguishable on its facts. In Hersh, an employee who had
a prior manslaughter conviction violently attacked a client of the defendant-employer.
This Court unanimously held that the defendant-employer was liable for its employee’s
violent attack on the client because the defendant knew of the employee’s past violent
act. Id. at 413.19 The Brown majority seized on this reasoning to conclude that the
defendant in Brown could not be liable for its employee’s rape of the plaintiff because the
employee had only engaged in “boorish” sexual comments toward the plaintiff but had no
history of violent acts. Brown, 478 Mich at 557-562.
Although the Brown majority’s analysis created a dangerous rule whereby “no
infirmity of character, shown by speech, [is] sufficient to allow a jury to decide whether,
opinion in Brown, the majority’s critique of the Brown dissent, ante at 11 n 32, is entirely
irrelevant.
19
Justice BLACK concurred in the result. See id. at 416.
21
in light of the employee’s conduct, the employer had a duty to act,” id. at 576
(CAVANAGH, J., dissenting), Johnson’s conduct in this case, when viewed in the light
most favorable to plaintiff, was sufficient to raise a genuine issue of material fact even
under the rule in Brown. Johnson did not merely engage in sexual comments toward
plaintiff; rather, he had a specific history of violent and abusive behavior toward
inmates.20 Therefore, because the unanimous Hersh Court and the majority in Brown
20
The majority claims that the “dissimilar” nature and the “temporal distance” between
Johnson’s past violent conduct and the rape at issue immunizes defendants from
foreseeability as a matter of law. First, these arguments abandon the reasoning from
Hersh because, in that case, the attacker’s conviction for manslaughter occurred 10 years
before the attack in question, and the defendant in Hersh “was not aware of [the
attacker’s] specific convictions . . . .” Hersh v Kentfield Builders, Inc, 19 Mich App 43,
45 n 1; 172 NW2d 56 (1969). Thus, contrary to the majority’s analysis today, the
caselaw does not hold that an employee’s conduct is only foreseeable to an employer if
the employee had recently committed the precise conduct at issue.
Second, these arguments also demonstrate that the majority’s new test for quid pro
quo sexual harassment cases creates a moving target that is impossible for plaintiffs to
hit. In Brown, the majority claimed that the attacker’s aggressive sexual comments were
not sufficient to make it foreseeable that the attacker would later rape the target of those
comments. In this case, even though Johnson had committed a violent act against an
inmate in the past, the majority claims that this conduct occurred too long ago and was
too dissimilar to the conduct at issue. The majority makes no effort to explain why the
acceptable 10-year gap in Hersh is substantially different from the 13-year gap in this
case and only summarily argues that Johnson’s prior violent act against an inmate was
too dissimilar to his violent rape of plaintiff while she was an inmate. Ante at 14 n 36.
Viewed in the light most favorable to plaintiff, I fail to see a difference between a violent
physical altercation with an inmate and a subsequent violent rape of an inmate that is
sufficient to justify deciding this case as a matter of law. Rather, given the substantial
similarities between the facts of this case and the facts in Hersh, I believe that this
Court’s unanimous conclusion in Hersh that “[w]hether the employer knew or should
have known of [the employee’s] vicious propensities should not be determined by any
court as a matter of law, but by the jury” is equally applicable to this case, even under the
majority’s flawed new test. Hersh, 385 Mich at 415. But under the majority position,
this is apparently not so, given that the majority seemingly believes that an employee’s
22
concluded that an employee’s prior violent criminal acts are generally sufficient to put a
defendant on notice of the employee’s propensity to commit similar violent acts,21
defendants’ knowledge of Johnson’s prior violent acts is sufficient to at least raise a
genuine issue of material fact regarding the foreseeability of his eventual rape of
plaintiff.22 Accordingly, even under the majority’s newly adopted standard for quid pro
act of committing a rape is only foreseeable if the employer knows that the employee
actually raped someone in the recent past. The unworkability of such a requirement is
obvious.
21
Specifically, Hersh, 385 Mich at 413, stated that “‘[t]he employer’s knowledge of past
acts of impropriety, violence, or disorder on the part of the employee is generally
considered sufficient to forewarn the employer,’” quoting 34 ALR2d 390, § 9 (emphasis
added), and the majority in Brown, 478 Mich at 560, quoted this passage from Hersh.
22
Although the majority opinion cites Brown, 478 Mich at 555, for the proposition that
“[e]ven the incident of aggression [toward an inmate] did not put defendants on
reasonable notice that Johnson would sexually assault an inmate [because] violent actions
do not inevitably lead to acts of criminal sexual conduct,” ante at 13, the cited portion of
Brown does not actually support that conclusion. Rather, the relevant portion of Brown
states that “[c]omments of a sexual nature do not inexorably lead to criminal sexual
conduct any more than an exasperated, angry comment inexorably results in a violent
criminal assault.” Brown, 478 Mich at 555 (emphasis added). Furthermore, Brown later
stated, while discussing Hersh, that “it is the employee’s known past acts that provide a
basis for the employer’s knowledge of the employee’s ‘impropriety, violence, or
disorder’ and that those acts potentially place an employer on notice of the employee’s
violent propensities.” Id. at 561. Therefore, it appears that the majority has even further
limited the scope of previous conduct by an employee that will be sufficient to put an
employer on notice of the employee’s violent propensities. Disregarding the fact that a
rape is an “incident of aggression,” the majority claims that Johnson’s previous “incident
of aggression” toward an inmate did not make his subsequent rape of plaintiff foreseeable
because the previous “incident of aggression” was not a “sexual assault.” The majority’s
efforts to distinguish the differences between various violent acts leaves plaintiffs
vulnerable to harm and immunizes employers from liability unless an employee commits
the exact same act that he or she previously committed. In my view, the majority’s
analysis is arbitrary and undercuts the clear legislative intent of the CRA.
23
quo sexual harassment claims under the CRA, the majority reaches the wrong result in
this case.
Finally, by overruling Champion, the majority has caused a major shift in
Michigan’s quid pro quo sexual harassment jurisprudence. Thus, even if I agreed with
the majority’s new standard, I could not support its hasty decision to reverse the
judgment of the Court of Appeals. As the majority readily admits, Champion clearly
applies to this case, and plaintiff’s arguments appropriately focused on the principles set
forth in Champion rather than the majority’s newly imposed foreseeability analysis.23 As
23
Curiously, the majority proclaims that “[n]o meaningful distinction can be drawn
between the facts in Champion and those in the present matter,” ante at 23, but later finds
fault in my conclusion that a straightforward application of Champion is appropriate in
this case. My conclusion is not faulty; rather, it simply reflects an adherence to the
doctrine of stare decisis. It is the majority that falters in its effort to satisfy the burden of
explaining its imprudent decision to forgo precedent.
Indeed, the majority’s argument that the “conflicting dispositions in the courts
below” support its decision to overrule Champion, ante at 31, is simply one more
example of the majority’s misplaced efforts to satisfy its burden. While it is true that the
trial court in this case applied Zsigo and the Court of Appeals applied Champion, a
simple answer exists for this apparent conflict. Although our trial courts work diligently
and, in the vast majority of instances, reach the correct result, the trial courts do, on
occasion, err. Indeed, the Court of Appeals and this Court exist in large part to address
this reality.
In this case, the trial court erred by applying Zsigo because Zsigo did not consider
a quid pro quo sexual harassment claim. Rather, as the Court of Appeals correctly
determined, the proper course of conduct in this quid pro quo sexual harassment case was
to apply Champion, not Zsigo. Indeed, as repeatedly noted in this dissent, the Zsigo
majority recognized that Champion applies “in the context of quid pro quo sexual
harassment under MCL 37.2103(i).” Zsigo, 475 Mich at 224 n 19. Therefore, the
resolution of this case should be simple: Champion should apply because this is a quid
pro quo sexual harassment case. It is the majority that needlessly injects “conflicting
precedents and principles.” Ante at 31.
24
a result, the Court of Appeals did not consider the merits of plaintiff’s claims under the
foreseeability standard that the majority now adopts. Accordingly, the majority should
not reach the merits of this case because this unexpected shift away from Champion
prevented plaintiff from making arguments related to the standard that the majority now
applies. Rather, given its holding, the majority should remand this case to the lower
courts for further proceedings so that plaintiff may develop arguments related to the
majority’s newly applicable, yet erroneous, standard for quid pro quo sexual harassment
claims.
V. CONCLUSION
I disagree with the majority’s decision to overrule Champion because that case
was correctly decided and furthers the legislative intent and purpose of the CRA.
Moreover, the doctrine of stare decisis weighs against overruling Champion.
Furthermore, the majority misapplies its newly created standard in this case and usurps
the role of the jury when it concludes that defendants are entitled to a favorable decision
as a matter of law. Accordingly, I dissent.
Michael F. Cavanagh
Marilyn Kelly
25
STATE OF MICHIGAN
SUPREME COURT
TARA KATHERINE HAMED,
Plaintiff-Appellee,
v No. 139505
WAYNE COUNTY and WAYNE
COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellants,
and
SERGEANT KENNETH DARWISH,
CORPORAL NETTIE JACKSON,
SHERIFF WARREN C. EVANS, and
DEPUTY REGINALD JOHNSON,
Defendants.
HATHAWAY, J. (dissenting).
I dissent from the majority’s decision to overrule Champion v Nation Wide
Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). I fully agree with and join parts I,
II, IV, and V of Justice CAVANAGH’s dissenting opinion. It is my strong belief that
Champion, a unanimous decision of this Court,1 was not only correctly decided, but
served to protect the rights of victims of discrimination. Because the majority overrules
correctly decided precedent, no stare decisis analysis is necessary. The majority’s
1
The concurring justices joined the analysis in full. See Champion, 450 Mich at 714(BOYLE, J., concurring).
analysis and conclusions are fundamentally flawed, and today’s decision significantly
undermines the “legislative intent that employers, not the victims of sexual harassment,
bear the costs of remedying and eradicating discrimination.” Champion, 450 Mich at
714. Finally, for the reasons given in Justice CAVANAGH’s thoughtful and well-reasoned
dissenting opinion, the majority’s decision is contrary to the rule of law and results in the
dismantling of the Michigan Civil Rights Act, MCL 37.2101 et seq. Accordingly, I
dissent.
Diane M. Hathaway
2