Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 29, 2002
BRENT VEENSTRA,
Plaintiff-Appellee,
v No. 117985
WASHTENAW COUNTRY CLUB,
Defendant-Appellant.
__________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
Defendant Washtenaw Country Club declined to renew
plaintiff’s contract as the club’s golf professional,
following plaintiff’s apparently notorious and public
separation from his wife and cohabitation with another woman.
The trial court summarily dismissed plaintiff’s breach of
contract and marital discrimination claims. The Court of
Appeals upheld the dismissal of the contract claim, but held
that, under our decision in McCready v Hoffius, 459 Mich 131;
586 NW2d 723 (1998)(McCready II), vacated in part 459 Mich
1235 (1999), discrimination on the basis of “unmarried
cohabitation” violated the Civil Rights Act, MCL 37.2101 et
seq.
We granted leave to appeal to consider whether the Civil
Rights Act extends to discrimination against an employee on
the basis of the employee’s conduct, in this case adultery.
We hold that an employee discharged solely because of conduct
such as adultery is not protected by the Civil Rights Act; the
statute prohibits an employer only from making decisions
because of race, sex, marital status, and the other protected
statuses enumerated in the statute.
In opposition to defendant’s motion for summary
disposition, plaintiff has arguably introduced some evidence
that defendant considered his marital status in addition to
his unprotected conduct. However, because the trial court did
not explain why this evidence was insufficient to meet
plaintiff’s burden under MCR 2.116(G)(4), we vacate the
holding of the Court of Appeals and remand this matter to the
trial court for further proceedings consistent with this
opinion.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff was employed as defendant’s golf professional
2
from 1991 through 1996. His employment was based on a yearly
contract.
Plaintiff’s then current contract expired on its own
terms in December 1996. In January 1996, plaintiff, who was
married, began having an adulterous affair with a married
woman. In April 1996, plaintiff moved out of his marital
home. A few weeks after leaving the marital home, plaintiff
began cohabitating with his mistress and escorted her to club
events. All these activities became well known to members of
the Washtenaw Country Club and were the subject of discussion.
In June 1996, board member Russo prepared and distributed
a survey to the general membership of the country club asking
members to evaluate certain key personnel, including
plaintiff. The surveys revealed that a number of members were
dissatisfied with plaintiff’s performance as the club golf
professional. Plaintiff received far more negative reviews
than the other three personnel who were also the focus of the
performance survey.
In September 1996, plaintiff’s wife instituted formal
divorce proceedings. Two months later, defendant informed
plaintiff of its decision not to renew his yearly employment
contract. The employment contract expired at the end of 1996.
Plaintiff’s divorce from his wife became final in May 1997.
3
In December 1997, plaintiff filed suit, alleging marital
status discrimination and breach of contract. Regarding the
discrimination claim, plaintiff alleged that his termination
“was motivated in part if not entirely because of his status
as a divorced person.”
The trial court granted summary disposition for defendant
on both counts of the complaint pursuant to MCR 2.116(C)(10).
Relying on McCready v Hoffius, 222 Mich App 210; 564 NW2d 493
(1997)(McCready I), the trial court ruled that cohabitation
was not a protected status under the Civil Rights Act.
Viewing the evidence in a light most favorable to plaintiff,
the trial court concluded that “if there was discrimination
against plaintiff, it was not based on his pending divorce but
on his cohabitation with his mistress.” In granting summary
disposition to defendant, the trial court did not address an
affidavit plaintiff submitted that arguably supported a claim
that his pending divorce was a factor in the decision not to
renew his contract.
On appeal, the Court of Appeals affirmed in part and
reversed in part.1 The panel affirmed the granting of summary
disposition on the breach of contract claim.2 However, the
1
Unpublished opinion per curiam, issued October 6, 2000
(Docket No. 216907).
2
Plaintiff did not appeal the Court of Appeals ruling on
the breach of contract claim, so that issue is not before us.
4
panel reversed the order granting summary disposition
regarding the marital status discrimination claim. McCready
I, relied on by the trial court in granting summary
disposition for defendant, had been reversed by this Court in
McCready II. Citing the Court’s decision in McCready II, the
Court of Appeals concluded that plaintiff had a valid claim
for marital discrimination “to the extent that plaintiff
establishes discrimination on the basis of his unmarried
cohabitation . . . .” In concluding that plaintiff presented
direct evidence sufficient to create a genuine issue of
material fact, the Court of Appeals cited the affidavit of
defendant’s outside operations manager who stated that three
of the board’s eight members specifically expressed their
disapproval of plaintiff’s divorce, stated that the situation
was “disgusting,” referred to plaintiff as a “slut,” and
stated that they “had to get rid of him.”
Defendant sought leave to appeal, which was granted. 464
Mich 874 (2001).
II. STANDARD OF REVIEW
The decision to grant or deny summary disposition is a
question of law that is reviewed de novo. Van v Zahorik, 460
Mich 320; 597 NW2d 15 (1999). This case also presents the
issue whether plaintiff’s adulterous behavior is protected
under the Civil Rights Act. The interpretation and
5
application of a statutory provision is a question of law that
is reviewed de novo by this Court. People v Webb, 458 Mich
265, 274; 580 NW2d 884 (1998).
III. PRINCIPLES OF STATUTORY CONSTRUCTION
When interpreting statutory language, our obligation is
to discern the legislative intent that may reasonably be
inferred from the words expressed in the statute. Wickens v
Oakwood Healthcare System, 465 Mich 53; 631 NW2d 686 (2001).
When the Legislature has unambiguously conveyed its intent in
a statute, the statute speaks for itself and there is no need
for judicial construction; the proper role of a court is
simply to apply the terms of the statute to the circumstances
in a particular case. Turner v Auto Club Ins Ass'n, 448 Mich
22; 528 NW2d 681 (1995). In construing a statute, the words
used by the Legislature must be given their common, ordinary
meaning. MCL 8.3a.
IV. ANALYSIS
A. THE STATUTE
Plaintiff’s claim for marital status employment
discrimination is premised upon MCL 37.2202(1), which provides
in relevant part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual with respect to employment,
compensation, or a term, condition, or privilege of
6
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
While the term “marital status” is not defined in the
statute, this Court has historically defined the term as
“whether a person is married.” Miller v C A Muer Corp, 420
Mich 355, 363; 362 NW2d 650 (1984); Whirlpool Corp v Civil
Rights Comm, 425 Mich 527, 530; 390 NW2d 625 (1986); McCready
II, supra at 137.
The clear, unambiguous language of the statute protects
status, not conduct. As a result, if an employer takes
adverse action against an employee for conduct, without regard
to marital status, the Civil Rights Act simply provides no
redress. Thus, a discrimination claim premised merely on an
employer’s consideration of an employee’s adultery would
provide no basis for recovery under the act.3
B. THE APPLICABILITY OF MC CREADY II
In McCready II, defendants, who owned residential rental
property, refused to rent their property to unmarried couples.
3
We note that the adultery statute applies equally to
married and unmarried individuals. MCL 750.29 defines adultery
as “sexual intercourse of 2 persons, either of whom is married
to a third person.” (Emphasis added.) Thus, because
plaintiff’s mistress was married, plaintiff would have been
engaging in adultery even if he had been unmarried. This
language alone demonstrates the irrelevancy in this case of
the dissent’s observation, slip op at 3, that the Civil Rights
Act protects persons from discrimination “on the basis of acts
found immoral solely because of one’s status.”
7
In doing so, defendants stated “that the units were available
only to married couples” and that they usually “did not rent
to unmarried couples.” 459 Mich 134. Plaintiffs, two
unmarried couples who intended to cohabit, brought suit after
being denied the opportunity to rent the property. Defendants
maintained that any discrimination was premised upon “their
perception of plaintiffs’ conduct” rather than the plaintiffs’
marital status. Id at 138.
The issue to be resolved in McCready II was whether a
claim for marital status discrimination could be stated where
the claim was premised on defendant’s rejection of plaintiffs
because of their unmarried cohabitation. The statutory
provision at issue in McCready II, MCL 37.2502(1), states in
pertinent part:
A person engaging in a real estate
transaction, or a real estate broker or salesman,
shall not on the basis of religion, race, color,
national origin, age, sex, familial status, or
marital status of a person or a person residing
with that person:
(a) Refuse to engage in a real estate
transaction with a person. [Emphasis added.]
In determining that the plaintiff had stated a claim for
marital status discrimination, this Court attempted to
distinguish status from conduct, concluding that
“[p]laintiffs’ marital status, and not their conduct in living
together, is the root of the defendants’ objection to renting
8
the apartment to the plaintiffs.” Id. at 140. We further
noted that the case was “complicated” by a statute forbidding
lewd and lascivious cohabitation by unmarried couples, MCL
750.335. Id., 136. However, the opinion held that there was
“insufficient evidence that the plaintiffs intended to engage
in lewd and lascivious behavior.” Id., 141.
In reversing the trial court’s grant of summary
disposition for defendant in this case, the Court of Appeals
applied McCready II and concluded that plaintiff had a valid
claim for marital discrimination “to the extent that plaintiff
establishes discrimination on the basis of his unmarried
cohabitation . . . .” Slip op at 4. However, McCready should
not be read so expansively as to create a right to cohabit
under our Civil Rights Act. Properly read, the plaintiffs in
McCready II submitted sufficient direct evidence of marital
status discrimination to survive defendant’s motion for
summary disposition.
While stated above, we take this opportunity to
unequivocally reiterate that the unambiguous language of the
Civil Rights Act protects only the consideration of a person’s
marital status. Adverse action against an individual for
conduct, without regard to marital status, provides no basis
for recourse under the act. It is irrelevant that the conduct
9
at issue does or does not have criminal consequences.4
In McCready, direct evidence was presented that the
defendants considered the marital status of the plaintiffs in
refusing to engage in the desired real estate transaction.
Our Civil Rights Act requires no more.5
C. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION UNDER MCR
2.116(C)(10)
Defendant brought a motion for summary disposition
pursuant to MCR 2.116(C)(10). A motion under this section
tests the factual sufficiency of the complaint. The movant
must specifically identify issues to which it believes no
genuine issue as to any material fact exists. MCR
2.116(G)(4). In opposition to the motion, the nonmoving party
may not rest upon mere allegations or denials, but must
proffer evidence of specific facts showing that there is a
genuine issue for trial. Id.; Smith v Globe Life Ins Co, 460
Mich 446; 597 NW2d 28 (1999). Evidence offered in support of
or in opposition to the motion can be considered only to the
4
Although the dissent takes pains to concur in this
proposition, slip op at 6, it is important to understand that
our opinion asserts this only because we believe that the Act
protects status and not conduct.
5
Contrary to the dissent, slip op at 3, we do not
suggest that McCready II is about a “right to cohabit.” It is
the dissent that appears to interpret it in this manner.
Rather, the majority views McCready II as a case focused upon
marital status discrimination, one of the express categories
of statutory protection under the Civil Rights Act.
10
extent that it is substantively admissible. MCR 2.116(G)(6);
Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
In evaluating a motion for summary disposition brought
under this subsection, a trial court is required to consider
the affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion. Where
the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to
judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto
v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
In the instant case, defendant’s motion for summary
disposition maintains that its refusal to renew plaintiff’s
contract did not relate to his marital status. In response,
plaintiff offered the affidavit of defendant’s outside
operations manager, Patrick Godfrey. Mr. Godfrey averred
that, “[o]n several occasions,” he overheard three board
members “specifically express their disapproval” of
plaintiff’s divorce, state that the situation was
“disgusting,” refer to plaintiff as a “slut,” and state that
they “had to get rid of him.”
Plaintiff argues that sufficient evidence was presented
that, at a minimum, defendant harbored mixed motives when it
discharged him. Evidence of mixed motives, when one motive is
11
impermissible under the Civil Rights Act, is sufficient to
withstand summary disposition. In such a case, the
impermissible factor must be a determining factor. See Matras
v Amoco Oil Co, 424 Mich 675, 682-683; 385 NW2d 586 (1986).
When the Court of Appeals evaluated plaintiff’s claim as one
related to his pending divorce and adultery, it failed to
evaluate whether the pending divorce was a determining factor.
Likewise, the trial court did not consider the affidavit
suggesting that the defendant may have acted on an
impermissible motive. In granting defendant’s motion, the
trial court merely concluded that any discrimination was
motivated by plaintiff’s cohabitation with his mistress and
did not specifically address the adequacy of the affidavit.
There is little evidence in the record indicating that the
trial court considered the evidence contained in the affidavit
as required by MCR 2.116(G)(5). We therefore remand this case
to the trial court. On remand, the trial court is to consider
defendant’s motion for summary disposition, and plaintiff’s
response thereto, in conformance with MCR 2.116(G)(4)-(6).6
D. RESPONSE TO THE DISSENT
The dissent consciously and wilfully chooses to ignore
6
In so remanding, we form no opinion, implicitly or
explicitly, regarding whether plaintiff has submitted
admissible evidence of specific facts sufficient to raise a
genuine issue of material fact.
12
the holding that has been stated several times throughout this
opinion—that adverse action against an individual for conduct,
without regard to a protected status, provides no basis for
recourse under the Civil Rights Act. This construction is
required because the act provides that it is unlawful to
discriminate "because of" one of the enumerated protected
characteristics.7 Where no direct evidence of discrimination
based on one of the protected characteristics exists, the
burden is on the plaintiff to establish a link between the
conduct and a protected status. Absent evidence that the
reason offered for the alleged discriminatory action is merely
pretextual, the claim fails. Hazle v Ford Motor Co, 464 Mich
456; 628 NW2d 515 (2001). However, where there is sufficient
evidence of pretext, the claim survives.
The dissent incorrectly maintains that our holding
creates a “rule per se excluding conduct . . . .” Slip op
at 2. However, as we have made clear, conduct may be the
subject of protection under the Civil Rights Act if such
conduct is mere pretext for action based on consideration of
7
The distinction that this opinion draws between conduct
and status, and that the dissent characterizes as
“artificial,” slip op at 8, is a direct function of the words
“because of.” While there are other statutes that limit the
scope of private and public decision making, the Civil Rights
Act merely prohibits actions that are taken with regard to
certain types of statuses, “because of” these characteristics.
It does not prohibit actions that are legitimately taken for
any other reason.
13
a protected status category.8 In fact, the rule we articulate
is undeniably consistent with the language of the statute,
which protects enumerated characteristics, not conduct. This
rule is also consistent with our jurisprudence under the Civil
Rights Act. Like any other prima facie case of
discrimination, a claim for marital status discrimination
survives if a plaintiff can establish that adverse action was
taken because of a protected status notwithstanding that
conduct is asserted as the basis for the challenged action.
However, in this case, plaintiff has not needed to posture his
discrimination action as a prima facie case predicated within
the McDonnell Douglas9 framework. Rather, this case is
premised upon an allegation of direct evidence of marital
status animus.
Instead of simply adhering to the plain language of the
8
Contrary to the suggestions of the dissent, slip op at
7, we impose no requirement that a plaintiff must offer
statements on the part of a defendant expressly communicating
a prejudice toward persons of a protected status. Rather, “an
invidious purpose may often be inferred from the totality of
relevant facts,” Washington v Davis, 426 US 229, 242; 96 S Ct
2040; 48 L Ed 2d 597 (1976). Such an assessment “demands a
sensitive inquiry into such circumstantial and direct evidence
of intent as may be available.” Arlington Hts v Metro Housing
Dev Corp, 429 US 252, 266; 97 S Ct 555; 50 L Ed 2d 450 (1977).
9
McDonnell Douglas Corp v Green, 411 US 792, 93 S Ct
1817, 36 L Ed 2d 668 (1973). The McDonnell Douglas approach
allows a plaintiff to present a rebuttable prima facie case on
the basis of proofs from which a factfinder could infer that
the plaintiff was the victim of unlawful discrimination.
14
statute and applying the analytical frameworks that currently
exist in civil rights jurisprudence, the dissent prefers to
engage in what it considers a more “thoughtful analysis” of
marital status discrimination claims–an analysis that ponders
the “essential conception[s] of human dignity” as well as
whether adverse actions are “motivated by moral judgments
about a person’s conduct . . . .” Slip op at 6. To say the
least, these philosophical musings are not found within the
canons of statutory construction. Accordingly, we simply
decline to circumvent the language of the statute in favor of
the sociological and moral inquiry favored by the dissent.10
V. CONCLUSION
The clear language of the Civil Rights Act prevents only
consideration of an employee’s protected status—here, marital
status. We further hold that an employee’s conduct or
misconduct is not a protected status under the employment
provisions of the act, and our opinion in McCready II should
10
Needless to say, we do not agree with the dissent’s
characterization of this opinion as less than “honest,” slip
op at 5, or as “shallow,” slip op at 7, because it does not
reach the results preferred by the dissent. In this same
regard, we would view the dissent as far more straightforward
if it did not pay homage to a “societal interest in
[]fidelity,” slip op at 5, at the same time that it
concludes—in our judgment, without legislative warrant—that
there is civil rights protection for adulterous conduct.
15
not be read otherwise. Because there is no indication that
the trial court considered plaintiff’s evidence in opposition
to the motion for summary disposition as required by the court
rules, we vacate the holding of the Court of Appeals and
remand this matter to the trial court for further proceedings
consistent with this opinion.
CORRIGAN , C.J., and TAYLOR and MARKMAN , JJ., concurred with
YOUNG , J.
16
S T A T E O F M I C H I G A N
SUPREME COURT
BRENT VEENSTRA,
Plaintiff-Appellee,
v No. 117985
WASHTENAW COUNTRY CLUB,
Defendant-Appellant.
WEAVER, J. (concurring).
I join all but part IV(D) of the opinion.
S T A T E O F M I C H I G A N
SUPREME COURT
BRENT VEENSTRA,
Plaintiff-Appellee,
v No. 117985
WASHTENAW COUNTRY CLUB,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (dissenting).
The majority holds that the Civil Rights Act, MCL
37.2202(1) et seq., prohibits employment discrimination only
on the basis of status and not conduct. This conclusion
results from an overly simplistic analysis of the statute and
unnecessarily limits this Court’s holding in McCready v
Hoffius, 459 Mich 131; 586 NW2d 723 (1998) (McCready II)
vacated in part 459 Mich 1235 (1999). Conduct and status are
often inextricably linked, and I find unworkable any rule per
se attempting to assert otherwise. Therefore, I must
respectfully dissent.
Although the term “status” is used in identifying a
prohibited ground for discrimination, i.e, “marital status,”
status and conduct are concepts that cannot always be easily
distinguished. This is true because much of what the Civil
Rights Act prohibits is discrimination on the basis of
assumptions about conduct that stem from, and are often a
manifestation of, one’s status. Even so, I agree that actual
conduct may be relevant in employment and housing
considerations, and certain conduct need not be tolerated
simply because a connection to status can be made. But while
conduct is not always protected by the act, certain conduct
can be directly linked to status in such a way that adverse
action based on conduct will result in status-based
discrimination. A rule per se excluding conduct from the
protections of the act creates an artificial distinction and
narrows the breadth of the remedial act.
Though such adverse action is prohibited by McCready II,
the majority now recasts and diminishes its holding. In
McCready II, this Court held that a lessor could not refuse to
lease an apartment to an unmarried couple because plaintiffs’
marital status was “the root of the defendant’s objection to
renting [the apartment]” and expressly rejected claims that
conduct, not status, motivated the prohibited action. Id. at
140. Instead, this Court adopted the Alaska Supreme Court’s
2
rationale in Swanner v Anchorage Equal Rights Comm, 874 P2d
274, 278, n 4 (Alas, 1994), which held that a landlord
“‘cannot reasonably claim that he does not rent or show
property to cohabitating couples based on their conduct
(living together outside of marriage) and not their marital
status when their marital status (unmarried) is what makes
their conduct immoral in [the landlord’s] opinion.’” McCready
II at 139. Similarly, for the purpose of resolving this issue
of law, we have assumed the defendant in this case terminated
the plaintiff’s employment because it felt plaintiff’s
behavior was immoral, an act condemned only because he was
married.1 Thus, McCready II should control; but the majority
now recharacterizes McCready II and suggests the McCready II
defendants could have prevailed had they proven the plaintiffs
would, in fact, have engaged in sexual intercourse while
cohabitating. McCready II is not about “a right to cohabit”
as the majority suggests, but, instead, makes clear that the
Civil Rights Act guarantees the right to be free from
1
The majority asserts that “[a]dverse action against an
individual for conduct, without regard to marital status,
provides no basis for recourse under the act.” Ante at 11.
As previously stated, the distinction between status and
conduct is not so clear that it should be enmeshed in
discrimination jurisprudence. Moreover, even if adopted here,
the circumstances indicate the action taken by the defendant
was not “without regard to marital status.” But for his
status, I suspect little attention would have been paid to his
conduct.
3
discrimination on the basis of acts found immoral solely
because of one’s status.
The majority might respond that employers should be able
to make decisions as a result of the type of conduct at issue
here, especially where it has an effect on the employee’s
credibility with clients who, assertedly, are known for their
deference to etiquette standards and social mores. Where
there is an employment at will relationship, some might argue
that termination must be an option for employers. However,
the Legislature arguably prohibited such actions with the
passage of the Civil Rights Act. The decision to terminate
plaintiff appears to have been based on the defendant’s
disapproval of plaintiff’s conduct, conduct that was scorned
only because of plaintiff’s marital status.
I concede that few in the Legislature likely anticipated
that employees would be protected from discrimination
resulting from what some would claim was socially justified
condemnation for infidelity when drafting the Civil Rights
Act. However, the statute as written does not create an
exception for the types of bias that most feel is justified,
and inserting a “status only” element that results in the
automatic dismissal of claims where conduct and status are
linked is not the proper manner in which to determine the
legislative intent.
4
What might be more useful is a thoughtful analysis of
discrimination claims in light of the social and historical
context that prompted the Legislature to pass the Civil Rights
Act and to protect people from discrimination on the basis of
marital status. Does the different treatment closely relate
to a personal characteristic of the complainant? Does the
distinction serve to deny a person of the essential conception
of human dignity? Does discrimination resulting from a
married person’s infidelity exacerbate the prejudices the act
attempts to curb? Are discriminatory acts motivated by moral
judgments about a person’s conduct permissible when the
motivation is directly tied to a protected status? The
answers to these questions are not as clear, but I suspect a
discussion of this nature would result in a more honest
attempt to analyze the issues the majority frames as
mechanical, rote rules of law. Such an inquiry would also
diminish the risk that artificial distinctions could be used
opportunistically to avoid the mandate of the Civil Rights
Act.
At the end of the day the plaintiff may not be protected
by the act, but not because he was not subject to status-based
discrimination. Rather, he may be outside the protections of
the act because the Legislature did not intend to protect a
societal interest in infidelity. The majority claims such an
5
analysis would be Solomonic, but I think it is the only
reasonable position because it would dispel the illusion that
the issue is clear and devoid of hidden value assumptions.
The majority claims such considerations are unnecessary
because the plaintiff would be guilty of adultery under the
criminal code whether he was married or single–he had sex with
a married woman and his conduct would fall under the purview
of the statutory prohibition regardless of his marital status.
The majority concludes that this particular type of conduct
based discrimination has no connection to plaintiff’s marital
status. I find this distinction dangerous and illusory. As
the majority correctly notes, “[i]t is irrelevant that the
conduct at issue does or does not have criminal consequences.”
Slip op, p 11. Moreover, the societal condemnation
surrounding infidelity is based solely on expectations and
presumptions associated with marriage and marital status. If
the defendant had asserted that it reprimands and terminates
employees on the basis of their promiscuous behavior, the act
arguably would not protect such conduct. The act does not
prohibit discrimination on the basis of lax sexual mores.
However, that is not what the defendant claims, nor what this
Court holds today. The majority states adultery is not
protected by the act on the basis of a status/conduct
distinction that creates an impermissible and arguably
6
complete defense to direct evidence of status-based
discrimination when disfavored conduct is shown.
McCready II did not attempt to make such shallow
distinctions, and to claim now that it stands only for the
proposition that an unmarried couple who is denied housing can
only succeed if they show marital status discrimination
without regard to their intended conduct–cohabitation–makes no
sense to me. A defendant need only show the disfavored action
was based on conduct to escape liability. If the majority
view prevails, I cannot envision how an attorney could bring
a discrimination claim on behalf of an unmarried couple denied
housing on the basis of their marital status. Only if a
landlord happened to expressly state that her refusal to rent
was based on–and only on–their marital status would plaintiffs
prevail. The act is not meant to prohibit adverse action only
when randomly made prejudicial comments are aired.
The majority correctly states that the act requires only
proof of status-based discrimination. However, how can such
a claim be made if this Court prohibits plaintiffs from
illustrating the manner in which status-based discrimination
is given life, i.e., through conduct-based adverse action? I
do not assert that all conduct is protected, but only that
this doctrine is unworkable to the degree that it excludes
claims where adverse action can be tied to conduct.
7
There is no principled reason to import a status/conduct
distinction where it fails to properly and fully address the
discriminatory action. I cannot agree that the Legislature
intended to permit a “conceptual out” or “conduct defense”
whenever this Court finds the discrimination morally
permissible. Further, the majority opinion could be
characterized as the first step in the creation of a doctrine
that eviscerates the prohibition of status-based
discrimination, picking up where McCready I left off.
Contrary to the assertions made by the majority, the holding
in McCready II would be considerably narrowed by the majority
here. A bright-line rule excluding conduct from the
protections of the act creates an artificial distinction and
narrows the breadth of the remedial act.
Adoption of an artificial distinction between status and
conduct in this case should not eviscerate the principles in
McCready II. Such a meager interpretation cannot logically be
made on the basis of the text of the statute and is
inconsistent with the Civil Rights Act. The rationale
provided by the majority inappropriately narrows our
understanding of discrimination. Because the text of the
Civil Rights Act is not exclusively limited to the prohibition
of status discrimination where no conduct discrimination is
8
present, and because McCready II’s holding is not so narrow,
I would affirm the opinion of the Court of Appeals.
KELLY , J., concurred with CAVANAGH , J.
9