Order Michigan Supreme Court
Lansing, Michigan
December 27, 2007 Clifford W. Taylor,
Chief Justice
133369 & (61)(62)(63)(64) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
LULA ELEZOVIC, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
and
JOSEPH ELEZOVIC,
Plaintiff,
v SC: 133369
COA: 267747
Wayne CC: 99-934515-NO
DANIEL P. BENNETT,
Defendant-Appellant,
and
FORD MOTOR COMPANY,
Defendant.
_________________________________________/
On order of the Court, the defendant’s motion to file a late reply brief is
GRANTED. The application for leave to appeal the January 25, 2007 judgment of the
Court of Appeals is considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court prior to the completion of the
proceedings ordered by the Court of Appeals. We note, however, that without expressly
finding a section of the Michigan Civil Rights Act, MCL 37.2101 et seq., ambiguous, the
Court of Appeals majority determined that the statute is remedial and thus must be
liberally construed. In this respect, the Court of Appeals majority erred. Rakestraw v
General Dynamics Land Systems, Inc, 469 Mich 220, 232-233, n 12 (2003). In addition,
the Court of Appeals erred by mixing its analysis of defendant’s agency and liability.
Under the plain terms of the statute, the threshold issue is whether defendant is an agent.
After that issue is resolved in the affirmative, defendant’s liability is based on the Civil
Rights Act and his liability thereunder is direct. Therefore, agency principles of authority
relating to the principal’s vicarious liability for the acts of the agent are irrelevant. We
take special care to emphasize that agency principles of authority and liability still apply
when the defendant is “a person who has 1 or more employees” and did not personally
2
participate in the harassment. We acknowledge that the use of the term “employer” to
mean both “a person who has 1 or more employees” and “an agent of that person” is ripe
for confusion. However, where the Court of Appeals stated that “when the claim of
sexual harassment against an employer is for direct liability, and not vicarious liability,
intent need not be inferred through a respondeat superior analysis,” it should not be
interpreted to mean that the principal is strictly liable for its agent’s actions. Although a
principal’s agent may be directly liable, a respondeat superior analysis is still required for
a principal that did not directly participate in the harassment. The motions to dismiss and
to strike are DENIED.
WEAVER, J., states as follows:
I would deny leave to appeal because I am not persuaded that this Court should
review the questions presented at this time.
KELLY, J., concurs in part and dissents in part and states as follows:
I concur in the decision to deny leave to appeal. But, for the reasons explained in
my statement in Ernsting v Ave Maria College,1 I dissent from that part of the order
scolding the Court of Appeals majority for using the canon of construction that remedial
statutes shall be liberally construed. Because the statute at issue, the Civil Rights Act,2 is
a remedial statute,3 it was appropriate for the Court of Appeals majority to apply the
canon to this case.
CAVANAGH, J., joins the statement of KELLY, J.
1
___ Mich ___ (Docket No. 134444, issued December 14, 2007.)
2
MCL 37.2101 et seq.
3
Eide v Kelsey-Hayes Co, 431 Mich 26, 36 (1988).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 27, 2007 _________________________________________
d1219 Clerk