(concurring). I concur with the result of the plurality, but write separately to express agreement with Justice Levin’s separate opinion, adopting the standard that the complained-of discrimination must be "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign” and requiring a constructive-discharge analysis.
I agree with the plurality in the awarding of back pay because I think the discriminatory action here offended this standard, resulting in a constructive discharge.
Levin, J. The issue is whether Starrla K. Cornell — who was asked "to go home again and change clothes” to comply with a dress code subsequently found to be discriminatory — is entitled to back pay.
The federal courts have developed an analysis for deciding when back pay should be awarded to an employee who is not formally discharged and who declines to work under an unlawful working condition.1 The employee may be awarded back pay if the working condition is "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Bourque v Powell Electrical Mfg Co, 617 F2d 61, 65 (CA 5, 1980).2 If the working condition is found to be so difficult or unpleasant, the employee is deemed to have been "constructively *579discharged” and back pay is awarded. If the working condition is, although unlawful, not so difficult or unpleasant, the employee is not deemed to have been constructively discharged; the employee ordinarily is entitled to be reinstated but is not entitled to back pay.
The plurality says that the constructive-discharge doctrine only applies when the employee resigns. The plurality concludes that Cornell did not resign, that she was discharged. In the instant case this is a dubious distinction.
Cornell did not submit her resignation, and Sparrow did not discharge her. Instead, Sparrow indicated that Cornell’s continued employment was conditioned on her submitting to the dress code. She was free to return, but on Sparrow’s terms.
The constructive-discharge doctrine is not based on a distinction as narrow as whether the employer or the employee blinked. The constructive-discharge analysis applies whenever an employee is in a position to continue working and chooses not to do so. When an employer discharges an employee, the employee cannot mitigate damages by continuing to work for the employer. If the employee is not discharged, the employee ordinarily must, unless the unlawful discriminatory condition is so difficult or unpleasant, continue working while challenging the unlawful condition. Cornell was not discharged. She had the option of continued employment under discriminatory conditions.
The circuit court, which ordered Cornell reinstated but denied back pay, did not apply constructive-discharge analysis in reaching its decision denying back pay. I would remand to the circuit court for reconsideration of the back-pay decision, applying the correct mode of analysis.
*580I
Cornell began working for Sparrow as a histotechnologist in 1972. She worked in a laboratory receiving specimens, making slides, and assisting pathologists. Sparrow instituted a dress code, requiring women to wear white uniforms complete with white shoes and socks and underclothing "appropriate for the situation.” Male employees doing the same work were only required to wear white lab coats. The purpose of the dress code, according to the laboratory director, was to please patients used to male employees dressed as doctors and female employees dressed as nurses. A committee of lab employees, male and female, had chosen the uniform.
Cornell complained about the differences between the male and female dress code to her representative on the committee and also to her supervisor. Her representative on the committee did not seem concerned about the difference between the uniforms. Her supervisor appears to have told her it was the committee’s decision.
On the first day the dress code was in effect, Cornell worked until the afternoon. She was wearing street clothes and a lab coat. Her supervisor called her into his office and told her that she must comply with the dress code, and go home and change. She told him that she had communicated with an attorney. The supervisor suggested that she bring in her attorney to discuss the matter. The record does not indicate whether she did bring in her attorney. Two days later she returned without wearing the uniform. After twenty minutes, she was summoned to the supervisor’s office. He told her, "I am going to have to ask you to go home again and change clothes.” She left and never returned.
*581Cornell filed a complaint with the Michigan Department of Civil Rights, which found discrimination on the basis of sex and ordered reinstatement and back pay. The circuit court affirmed the finding of discrimination, but reversed the commission’s order of back pay. The circuit court, in finding that Cornell was not entitled to back pay, characterized the conclusion of the employment relationship: "Claimant chose not to adhere to the code and thus terminated her employment.”
The Court of Appeals affirmed, holding that back pay would not be ordered because there were no special circumstances justifying the award. The Court of Appeals characterized the termination of Cornell’s employment differently, "When Cornell refused to conform her appearance to the provisions of the dress code, she was discharged.”
II
Sparrow does not challenge the determination that the dress code was discriminatory. Men and women performing the same work were treated differently for no apparent reason except "sexual stereotyping.”3 Cornell is entitled to reinstatement. Back pay is, however, a different matter.
An employee who, in the words of the circuit court, has "terminated her employment” may be entitled to back pay in the application of the constructive-discharge doctrine. A constructive discharge occurs when the challenged working condition is "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Bourque, supra. Stated somewhat differently, the employee must " 'mitigate damages by remaining on the job’ unless that job *582presents 'such an aggravated situation that a reasonable employee would be forced to resign.’ ” Clark v Marsh, 214 US App DC 350, 355; 665 F2d 1168 (1981).
A
In Bourque, the United States Court of Appeals for the Fifth Circuit found discrimination, but no constructive discharge, where the female complainant was paid less than her male counterparts in the same position.4
In Clark, the United States Court of Appeals for the District of Columbia Circuit found discrimination and a constructive discharge where an employee with an excellent work record was "continuously spurned,” receiving only one promotion in eleven years. In Meyer v Brown & Root Construction Co, 661 F2d 369 (CA 5, 1981), the United States Court of Appeals for the Fifth Circuit held that a woman was constructively discharged when, after telling her supervisor she was pregnant, she was transferred to duties that involved moving heavy equipment, thereby endangering her and her unborn child.5
The Court of Appeals has applied the constructive-discharge doctrine.6
*583B
A similar question may arise in the context of workplace safety. Osha has sought to accommodate the competing concerns by promulgating a regulation which bars an employer from disciplining an employee who walks off the job if there is a real danger of death or serious injury.7
The United States Supreme Court sustained the validity of this regulation. Whirlpool Corp v Marshall, 445 US 1, 17; 100 S Ct 883; 63 L Ed 2d 154 (1980).
Although the harms engendered by discrimination and unsafe workplaces are different, the osha regulation is informative. Osha sought to accommodate legitimate employer fears of abuse and the workers’ need for protection from physical risks. Rather than allowing a worker to walk off the job whenever the working condition was unlawful, *584osha premised the right to walk on the severity of the potential harm, "a real danger of death or serious injury,” and the inability to "resort to regular statutory enforcement channels.”
C
Discrimination alone is not sufficient to justify back pay when an employee chooses not to return to work because "society and the policies underlying Title VII will be best served if, wherever possible, unlawful discrimination is attacked within the context of existing employment relationships.” Bourque, supra at 66. The same policy analysis and reasoning should be implemented in the application of this state’s comparable legislation, the source of the underlying right in the instant case.
Society benefits because discrimination may be corrected at the plant with less cost. If the employee leaves and back pay is awarded, money is paid for services not performed. Even if back pay is not ordered, the employer nevertheless must generally pay to find and train a replacement. The former employee might be unable to find employment during the legal contest and might even remain unemployed afterwards. If the employee had stayed on the job, there would have been an opportunity for communication between the parties, and greater opportunity for them to resolve their differences, and there might be less probability that they would have resorted to a lawsuit.8
Although it is clear that continued employment is beneficial to both employers and employees, the reasons why the employee and not the employer should ordinarily be called upon to mitigate damages during a legal contest by suffering at least *585temporarily a perceived injustice need to be articulated. I note at the outset that the legality of the rule or treatment being contested has usually not been determined when the controversy begins. Both sides believe they are right, and it can often be a close call. If the employee stays on despite the discriminatory condition, the employee can ordinarily be "made whole” retroactively. If the discrimination is, for example, in pay scales, the employee can be paid the difference between what was earned and what should have been earned.9
In the instant case, where the discrimination does not involve a pay differential, if Cornell had chosen to mitigate damages by continuing to work, she might be entitled to compensation for the mental distress caused her by wearing the discriminatory uniform.10
The employer cannot, however, be made whole retroactively.11 Requiring the employer to mitigate damages by not enforcing a rule whenever an *586employee considers it discriminatory or run the risk of a back-pay award would impair management’s ability to manage. In large plants, the result could be disruptive.12 Reinstating rules subsequently found not to be discriminatory would not rectify the damage to the employer.
Because the employee is generally in a better position to mitigate damages and can ordinarily be made whole retroactively more readily than the employer, the burden has been placed on the employee, not the employer, to endure, at least temporarily, an endurable perceived injustice.
Ill
The plurality declares that the plaintiff did not resign; rather she was discharged.
A
The consequence of the plurality’s decision is that by labelling the facts a discharge, the employee becomes entitled to back pay without regard to whether the discriminatory condition was "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” If the plurality had labelled the facts in the instant case a resignation, then the employee would be entitled to back pay only if the discriminatory condition was not so difficult or unpleasant. The reasons the plurality classifies this a discharge and not a resignation are not persuasive.
Sparrow did not summarily discharge Cornell when she arrived in noncomplying dress. Cornell did not submit her resignation. Rather, Sparrow *587sent Cornell home with instructions to change her dress to conform to the requirements of the dress code. The plurality has made a matter of considerable consequence turn on doubtful characterization. From Sparrow’s vantage point it may have been seen as a resignation. From Cornell’s vantage point it may have been seen as a discharge.13 Application of the constructive-discharge analysis should not turn on questionable characterizations of the same facts by appellate courts.
B
The central question is not whether a termination is classified a resignation or a discharge, but whether an employee was justified in failing to mitigate damages by working under the challenged discriminatory condition while pursuing administrative and judicial remedies. This issue is not resolved by drawing a distinction between whether the employee quit or should be deemed to have been fired.
The plurality appears to hold that whenever an employer imposes a mandatory condition of employment, and the employee chooses to leave the job rather than work under the condition, constructive-discharge analysis does not apply; imposing the condition is deemed tantamount to actual discharge. This is an unduly narrow interpretation of the constructive-discharge doctrine that ignores the case law.
Ordering an employee to wear a uniform as a condition of continued employment does not differ from requiring an employee to accept less pay or a transfer as a mandatory condition of continued employment. In Bourque, constructive-discharge analysis was applied when a woman was told she must accept less pay than a man for the same *588work. Bourque, supra at 63-64. In Alicea Rosado v Garcia Santiago, 562 F2d 114, 119-120 (CA 1, 1977), Jenkins v American Red Cross, 141 Mich App 785, 791, 797; 369 NW2d 223 (1985), and Frazer v KFC Natl Management Co, 491 F Supp 1099 (MD Ga, 1980), constructive-discharge analysis was applied when employees were required to accept transfers to less desirable jobs as a condition of continued employment. In all these cases, "[employers] demanded unconditional surrender to the company policy.” Young v Southwestern Savings & Loan Ass’n, 509 F2d 140, 145 (CA 5, 1975). Similarly, constructive-discharge analysis was applied in Young where an atheist refused to attend monthly business meetings that began with a prayer. Her supervisor had told her the meetings were mandatory. In all the cases where a constructive discharge was found, the courts could have reached the same result, ignoring constructive-discharge analysis, by simply characterizing the termination of employment as a discharge or firing.
The plurality repeatedly emphasizes that Cornell "was ready, willing, and able to work.” She was ready, willing and able to work, but only on her terms. So were the employees in all the other cases. They were willing to work if the contested condition was removed, that is, if the pay scales were changed, Bourque, supra, if the transfers were withdrawn, Rosado, supra, Jenkins, supra, and if attendance at a prayer meeting was not required.
The statement by Cornell’s supervisor, "go home again and change clothes,” does not justify a finding of actual discharge. She was told to go home so she could change her clothes. If the uniform had been in her locker, she would have been sent to her locker to change her clothes. The circumstance that she had to go home to change her clothes is *589not significant. The words "go home” added nothing to the statement that she would be required to comply with the working condition; they were merely incidental to the statement.
The plurality also relies on the decisions of the hearing referee and the Civil Rights Commission, finding that an actual discharge had taken place. As noted earlier, the circuit court characterized the record differently, finding that "claimant chose not to adhere to the code and thus terminated her employment.” The plurality states that in "light of the fact-finding of the administrative tribunals and lower courts, we accept the finding that the hospital discharged Ms. Cornell. . . .”
Article 5, section 29 of the Constitution requires de novo review by the circuit court of the findings of the commission. This Court has said: "Our review on appeal is of the circuit court decision, not that of the commission . . . .” Dep’t of Civil Rights v Beznos, 421 Mich 110, 117; 365 NW2d 82 (1984). The circuit judge did not find that Cornell was discharged. He found rather that Cornell terminated her own employment. He did not find that the words "go home” meant she was discharged. It was for the circuit court, not the Court of Appeals, this Court, or the Civil Rights Commission, to find the facts. The circuit court’s findings should not be reversed unless this Court is prepared to say, and it has not, that they were clearly erroneous.
C
After concluding that constructive-discharge analysis does not apply, the plurality says that even if it were applied, Cornell was constructively discharged and back pay should be awarded. The plurality misapplies constructive-discharge analysis. The plurality would hold that "[i]n light of the *590obviously demeaning nature of the dress code and of her employer’s unwillingness to reexamine its dress code, it was reasonable for Ms. Cornell not to return to work.” In most cases where an employee resigns, the employer may be said to have been unwilling to reexamine the contested working condition. "Demeaning” working conditions themselves do not necessarily mean that the employee has been constructively discharged. Paying a woman less than a man in the same job is demeaning and discriminatory, but was found not to have been a constructive discharge in Bourque, supra. Discriminatory demotions and transfers. are also demeaning, but were found not to have been constructive discharges in Alicea Rosado, supra at 119-120. Discrimination because of sex or race is generally demeaning, but discrimination alone is not sufficient to constitute a constructive discharge. Bourque, supra; Nolan v Cleland, 686 F2d 806, 813 (CA 9, 1982); Clark v Marsh, supra.
D
The cases relied on by the plurality do not militate against application of constructive-discharge analysis on the facts of this case. Albemarle Paper Co v Moody, 422 US 405; 95 S Ct 2362; 45 L Ed 2d 280 (1975), as the plurality indicates, was a class action "brought on behalf of present and former black employees of the Albemarle Paper Company alleging certain violations of Title VII . . . with respect to the company’s seniority system and its program of employment testing.” The employees who remained working at Albemarle when the action was brought had clearly mitigated their damages. They had decided to continue working in the face of discriminatory working conditions; the back pay they were seeking was the difference between the compensation *591they had received and what they would have received if there had been no discrimination. They were not asking for damages they could have mitigated by continuing to work for Albemarle.
There is no indication in Albemarle that the "former” employees were claiming damages they could have so mitigated. The opinion does not suggest that these were employees who lost their jobs because they had refused to work under discriminatory conditions. If any conclusion can be drawn, it is that they were employees who had retired or switched jobs, and they were seeking damages for the difference between the compensation they were paid and what they should have been paid.14 Albemarle thus seems to address the back-pay question in a different context.
The only case cited by the plurality as a basis for rejecting constructive-discharge analysis does not contradict or preclude its application in the instant case. EEOC v Sage Realty Corp, 507 F Supp 599, 605 (SD NY, 1981), is essentially an alternative expression of the same principle. There, a woman serving as a lobby attendant was required to wear a uniform resembling an American flag. Her thighs and portions of her buttocks were exposed, and when she raised her arms, the side of her body above the waist was visible. While wearing the uniform she was "subjected to repeated harassment. She received a number of sexual propositions and endured lewd comments and gestures . . . .” When she refused to wear the outfit, an employee was sent to convince her to change, and, when she still refused, she was ordered to leave.
*592The plurality concludes that Sage Realty shows that where an employee is ordered to leave there has been an actual discharge that precludes "constructive discharge” analysis. To be sure, the United States District Court in Sage Realty did not explicitly apply constructive-discharge analysis. It did, however, reach the same result as might have been reached in the application of constructive-discharge analysis. The court noted that the "proper question is not whether the victimized employee resigned or was discharged, but whether she acted reasonably in quitting rather than suffering the effects of discrimination.”15 The Court added that the plaintiff had "acted reasonably in refusing to wear the Bicentennial uniform she was issued.”
A reasonable-person standard has been applied in the constructive-discharge cases. See Bourque and Clark, supra. The trier of fact in Sage Realty could have properly found that the condition there was "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”
IV
The circuit court in denying back pay said:
Although this Court has found that the Respondent’s dress code was discriminatory based upon sex, as well as a condition of employment, these violations must be put in proper perspective. The dress code, as instituted, does not amount to such purposeful and invidious discrimination as to prohibit the attainment of gainful employment. This is not the type of discrimination that has been so historically rampant that denied an individual of any employment opportunities.
*593It is apparent that the circuit court did not apply constructive-discharge analysis in deciding the back-pay issue. The question was not whether the dress code constituted "purposeful and invidious discrimination,” but whether the dress code constituted a working condition "so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”
I would remand to the circuit court for a reconsideration of the back-pay question, applying the constructive-discharge mode of analysis.
This Court and the Court of Appeals often follow federal precedent construing provisions of federal civil rights legislation containing language corresponding to this state’s civil rights act. See Boscaglia v Michigan Bell, 420 Mich 308, 323; 362 NW2d 642 (1984).
See also Alicea Rosado v Garcia Santiago, 562 F2d 114, 119-120 (CA 1, 1977).
Civil Rights Dep’t v Sparrow, 119 Mich App 387, 391; 326 NW2d 519 (1982).
The Court held that, "discrimination manifesting itself in the form of unequal pay cannot, alone, be sufficient to support a finding of constructive discharge.” 617 F2d 65.
Conditions that would cause a reasonable employee to resign were also found where a white professor in a predominately black college was discriminated against and harassed on account of her race. At one point colleagues coerced students into signing a racially motivated petition that accused her of "delinquent” teaching habits and drinking on the job. Lincoln v University System of Georgia Bd of Regents, 697 F2d 928, 933 (CA 11, 1983).
In LeGalley v Bronson Community Schools, 127 Mich App 482, 487; 339 NW2d 223 (1983), the Court of Appeals concluded that there was not a constructive discharge where "plaintiff failed to present evidence of onerous working conditions or of harassment.”
In Jenkins v American Red Cross, 141 Mich App 785, 791, 797; 369 *583NW2d 223 (1985), the plaintiff was an assistant administrator of a Red Cross blood center, overseeing a number of departments. When his new superior officer criticized his work and gave him the option of accepting a different Red Cross job at the same pay or resigning, he refused to do either. He was then terminated for failure to report to work. He sought damages for racial discrimination. The Court of Appeals said:
"In view of the testimony that the new position offered to plaintiff was a demotion and that his responsibilities were severely reduced after [a new executive director] arrived, we believe a reasonable factfinder could conclude that the new position was not the substantial equivalent of the position of Blood Program Administrator.
"We conclude that a finding of constructive discharge is supported by the evidence and that plaintiff was not required to accept the position offered to him. A reasonable juror could conclude that the foreseeable impact of defendants’ conduct was that plaintiff’s working conditions would become so difficult and unpleasant that he would be compelled to resign.” Id. at 797-798.
Discipline is barred where:
"(1) a reasonable employee believes in good faith; (2) that performing assigned work would involve a real danger of death or serious injury; (3) the employee was unable to obtain correction of the condition by the employer; and (4) there is insufficient time to eliminate the danger through resort to regular statutory enforcement channels.” Rothstein, Occupational Safety Health, p 219. (Emphasis supplied.)
See Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975).
See Muller v United States Steel Corp, 509 F2d 923, 930 (CA 10, 1975).
In Boscaglia v Michigan Bell, n 1 supra at 318, n 13, this Court said:
"Although this Court has not decisionally addressed the question, courts in other jurisdictions are divided over whether, under similar statutory language, an administrative agency may award damages for physical, mental, or emotional injuries suffered as a result of employment discrimination.”
Mental distress compensation might be justified in the instant case —had Cornell continued to work — without regard to whether this Court ultimately concludes that mental distress damages are generally recoverable, because otherwise a worker who remains on the job would receive nothing for successfully challenging an unlawful discriminatory condition. Cf. Veselenak v Smith, 414 Mich 567, 572; 327 NW2d 261 (1982); Valentine v General American Credit, Inc, 420 Mich 256, 263; 362 NW2d 628 (1984). See MCL 423.307(h); MSA 17.458(7)(h) and MCL 37.2605(2)(k); MSA 3.548(605)(2)(k). If such compensation is awarded as an exception to a general rule that mental distress damages are not recoverable, this Court in formulating the exception could confide full control of the amount to the circuit court on a trial de novo.
Ford Motor Co v EEOC, 458 US 219, 232-233; 102 S Ct 3057; 73 L Ed 2d 721 (1982).
See Whirlpool Corp v Marshall, supra at 17, where the United States Supreme Court commented on the impolicy of "giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer.”
See Young, n 8 supra at 142.
Albemarle also seems to have involved employees who were not hired because of discriminatory employment tests or who were laid off because of discriminatory seniority practices. Neither of these groups of employees was in a position to mitigate damages by continuing to work for Albemarle. Albemarle, supra at 408.
Id. at 608, n 14.