Veenstra v. Washtenaw Country Club

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

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.

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.

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

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

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.”

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

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

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.

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.

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

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

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.

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.

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).

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.

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.

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.

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

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.

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.

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

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

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.

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

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.

Veenstra v. Washtenaw Country Club

Boost your productivity today