Department of Civil Rights Ex Rel Cornell v. Edward A. Sparrow Hospital Ass'n

Per Curiam.

Starrla K. Cornell and the Michigan Department of Civil Rights appeal as of right a February 15, 1981, lower court order affirming an order of the Civil Rights Commission, which found respondent’s dress code to be discriminatory against women employees and which reversed the commission insofar as it awarded back pay to Cornell.

Cornell was employed by the respondent hospital from July 1, 1972, to May 3, 1976, when she was discharged for refusing to comply with respondent’s dress code. The dress code, which was instituted on May 1, 1976, required female employees to wear "nurses uniforms” including white shoes and certain colors of undergarments. Male employees, however, were required only to wear a white lab coat over street clothes. When Cornell refused to conform her appearance to the provisions of the dress code, she was discharged.

Cornell filed a complaint with the Michigan Department of Civil Rights. Following investigation and hearings, the commission issued a final order on May 23, 1978, finding that the dress code constituted unlawful discrimination on the basis of sex in violation of the Michigan State Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. The commission ordered respondent to cease and desist from enforcing the discriminatory dress code, to reinstate Cornell, and to compensate her with back pay.

Respondent appealed to the circuit court, which *391in an opinion dated October 3, 1980, affirmed the commission’s finding of discrimination. However, the circuit court reversed the commission’s order of back pay. Appellants now appeal as of right.

Initially, we hold that the lower court did not err in refusing to award Cornell back pay. Pursuant to the provisions of MCL 423.307(h); MSA 17.458(7)(h), an employee who has been the subject of any unfair employment practice may be reinstated to his or her position "with or without back pay”. Cornell has clearly been discriminated against. As the dissent points out, respondent’s practice was based on sexual stereotyping. However, contrary to appellants’ position, the Michigan statute does not mandate a presumption that an award of back pay is to be made where a claimant was discriminatorily discharged unless special circumstances justify denial of the award. Although there is some federal authority supporting such an interpretation of the federal Civil Rights Act of 1964, 42 USC 2000e-2 et seq.; see Albemarle Paper Co v Moody, 422 US 405; 95 S Ct 2362; 45 L Ed 2d 280 (1975), the applicable provisions of the Michigan statute clearly make an award of back pay discretionary. We cannot rewrite the statute to legislate the presumption that appellants advocate or to create the "special circumstances” that would justify a denial of back pay.

The statute entrusts the awarding of back pay to the trial court’s discretion. Even though respondent’s policy discriminated against women, it did not deny employment or anything else so egregious. Although we sympathize (and we trust that respondent has permanently ended the practice), we do not believe that the practice was so invidious that Cornell could not reasonably have contin*392ued working for respondent while at the same time challenging the policy in court. Although we may have decided differently, we do not believe that the trial court abused its discretion in refusing to award back pay.

Cornell next argues that the trial court erred in not awarding her reasonable attorney fees.

In general, a party must bear the burden of his or her own attorney fees "unless allowance of a fee is expressly authorized by statute or court rule”. State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74; 212 NW2d 821 (1973). Cornell argues that she is entitled to reasonable attorney fees in accordance with § 802 of the Elliott-Larsen Civil Rights Act, MCL 37.2802; MSA 3.548(802). That statute provides:

"A court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate.”

Cornell’s case was not "an action brought pursuant to” the Elliott-Larsen Civil Rights Act. That act was not in effect at the time that Cornell was wrongfully discharged by respondent nor was it in effect at the time that Cornell filed her complaint with the Civil Rights Commission. The statute under which Cornell initiated this suit was the Michigan State Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. The Michigan State Fair Employment Practices Act does not provide for an award of attorney fees to a prevailing complainant. Therefore, because there is no statutory or court rule authority authorizing *393an award of attorney fees in this case, the trial court correctly declined to award them.

Affirmed.