Slayton v. Michigan Host, Inc

144 Mich. App. 535 (1985) 376 N.W.2d 664

SLAYTON
v.
MICHIGAN HOST, INC.

Docket No. 73858.

Michigan Court of Appeals.

Decided August 5, 1985.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw), for plaintiff.

Butzel, Long, Gust, Klein & Van Zile, P.C. (by Donald B. Miller), for defendants.

Before: J.H. GILLIS, P.J., and HOOD and R.M. DANIELS,^[*] JJ.

HOOD, J.

Plaintiff brought this action alleging sex discrimination and harassment in violation of the Elliott-Larsen Civil Rights Act^[1] against her employer, defendant Michigan Host, Inc., and her supervisors, defendants Vogel and Tawil. Plaintiff, who was employed by Host as a waitress, claimed that the work uniform requirement of high heeled shoes, short skirt, and low cut blouse was discriminatory and subjected her to sexual harassment. Plaintiff further claimed that the defendants harassed her into quitting her job in retaliation for her filing a complaint with the Equal Employment Opportunity Commission and in federal court.^[2]

Defendants brought a motion for accelerated judgment under GCR 1963, 116.1(2) claiming that the circuit court was without jurisdiction over the controversy because compensation under the Worker's Disability Compensation Act was plaintiff's exclusive remedy. The trial court granted defendants' motion, and plaintiff appealed. We reversed the trial court and remanded the case for further proceedings.^[3]

In August, 1983, plaintiff's case proceeded to trial. At the close of proofs, the trial court directed a verdict in favor of defendant, Jack Vogel. The jury found in favor of Host and Tawil. Plaintiff now appeals as of right.

Plaintiff raises several points of error on appeal which we discuss seriatim.

Plaintiff first argues that the trial court erred both by receiving evidence of the uniforms required in other restaurants and by instructing the jury that such practices were relevant to the determination of whether the defendants had engaged in sexual discrimination. We agree.

The title-object clause of the Elliott-Larsen Civil Rights Act provides in pertinent part:

"AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight or marital status; * * *."

Accordingly, the act mandates, inter alia, that an employer shall not

"(a) Fail or refuse to hire, or recruit, or 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." MCL 37.2202(a); MSA 3.548(202)(a).

In order to establish a prima facie case of sex discrimination, a woman must show that she was a member of a class entitled to protection under the statute and that, for the same or similar conduct, she was treated differently than a man. The crux of a sex discrimination action is that similarly situated persons have been accorded different treatment because of their sex. Heath v Alma Plastics Co, 121 Mich. App. 137; 328 NW2d 598 (1982); C Thorrez Industries, Inc v Civil Rights Comm, 88 Mich. App. 704, 707-708; 278 NW2d 725 (1979); Civil Rights Comm v Chrysler Corp, 80 Mich. App. 368, 372-373; 263 NW2d 376 (1977).

Once a plaintiff establishes by the preponderance of the evidence that a prima facie case exists, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Clark v Uniroyal Corp, 119 Mich. App. 820, 824-825; 327 NW2d 372 (1982). If the defendant is able to articulate such a reason, the plaintiff must then be given the opportunity to prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons but were mere pretext for the discrimination. Id.

In this case, pictures of costumes worn by non-testifying waitresses in other restaurants not owned by Host were offered by defense counsel and admitted by the trial court for the purpose of showing the customary practice in the industry and that Host was "not alone" in requiring its waitresses to wear scanty and revealing costumes. Because this is the only basis offered to justify the admission of this evidence, we presume that the pictures were offered in support of a legitimate, nondiscriminatory reason for its costuming requirement.

However, we believe that a reason based upon the customary practices of an industry is insufficient to rebut a prima facie case of sex discrimination as a matter of law.

Concerning claims of sex discrimination brought under Title VII of the Civil Rights Act of 1964,^[4] Federal courts have held that a reason based upon a desire to compete in the industry,^[5] or customer preference,^[6] is discriminatory on its face as merely reiterating the defendant's policy to impose the requirement on employees because they are females. We find that a reason based upon the customary practices of the industry is similarly discriminatory on its face. Indeed, it is because history has taught us that customary practices often perpetuate discrimination that the civil rights legislation was enacted.

Like its federal counterpart in Title VII, we believe that the prohibition against sex discrimination in the Elliott-Larsen Civil Rights Act was "intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex sterotypes". Sprogis v United Air Lines, Inc, 444 F2d 1194, 1198 (CA7, 1971), cert den 404 U.S. 991; 92 S. Ct. 536; 30 L. Ed. 2d 543 (1971). Therefore, it would be anomalous to allow the customary practices of an industry to determine whether the discrimination is valid.

Defendant contends, however, that the evidence was properly admitted as responsive to plaintiff's evidence of less-revealing costumes worn by other waitresses and herself at Host and other restaurants. We disagree.

Plaintiff's evidence was relevant to show that the more revealing costumes caused sexual harassment and that Host was put on notice of this condition. Defendant's evidence, on the other hand, neither refuted plaintiff's assertion that the costumes caused harassment nor pertained to any valid defense. We hold, therefore, that this evidence was erroneously admitted.

We find this error particularly egregious in light of the instructions given to the jury. Plaintiff had requested the following curative instruction:

"I charge you, ladies and gentlemen, that customary usage and practice of an industry cannot be determinative of whether a practice is discriminatory. What ought to be done is fixed by a standard of compliance with the law, whether it is usually complied with or not. To permit an `industry standard' to determine whether or not these defendants discriminate would permit the industry to define what the law is. This is a job which has been left to the legislature."

The trial court gave defendant's requested instruction instead:

"The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard."

The trial court borrowed this instruction from Flynn v Libke, 101 Mich. App. 331, 338; 300 NW2d 560 (1980), rem 411 Mich. 942 (1981). Flynn concerned the proper standard of care to be applied in a bailment situation. We believe that evidence of the customary usage and practice of an industry is totally irrelevant to the determination of whether such a practice or custom is discriminatory. Were it otherwise, an employer in an industry replete with discriminatory practices could be found immune from liability because such was the customary practice.

Our Supreme Court has stated that not all instructional error requires reversal. However, where "the result might well have been different" without the error, reversal is required. Rouse v Gross, 357 Mich. 475, 482; 98 NW2d 562 (1959); Bailey v Graves, 411 Mich. 510, 516; 309 NW2d 166 (1981). We are unconvinced that, had the evidence of the customary practices of the industry and the disputed instruction been omitted, the jury's verdict would not have been different. Therefore, we reverse the jury's verdict and remand this cause for a new trial.

We also agree with plaintiff that reversible error occurred when the trial court allowed defendant to interject evidence of a National Labor Relations Board proceeding involving the plaintiff.

In her complaint, plaintiff claimed that defendants retaliated against her for filing complaints with the Equal Employment Opportunity Commission and in federal court. Plaintiff sought to prove this claim at trial by introducing evidence of two allegedly unjustified suspensions. These two suspensions also formed the basis of an unfair labor practice charge filed previously by plaintiff with the National Labor Relations Board. After initial investigations, the NLRB sent a letter in which it stated its belief that further proceedings were not warranted, that a complaint would not be issued, and that the case would be dismissed. The NLRB attached to this letter the factual findings which supported its decision.

Over plaintiff's objection, the trial court allowed defendants to cross-examine plaintiff and one of plaintiff's witnesses as to the outcome of the NLRB proceeding and allowed defendant to read the letter in which the NLRB had stated its decision to dismiss the case. The court, however, would not permit the defendants to read to the jury the factual findings of the NLRB attached to the letter. Further, in closing arguments the defendant was allowed to argue that the refusal of the NLRB to issue a complaint was "highly persuasive evidence" that no retaliation occurred.

We hold that the introduction of evidence of the NLRB proceedings was prejudicial error. Our primary reason for this holding is that the evidence was irrelevant to the case at bar.

Plaintiff's claim with the NLRB was based upon § 158 of the National Labor Relations Act, 29 USC 158(a)(4), which states:

"(a) It shall be an unfair labor practice for an employer —

* * *

"(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchaper."

The basis for plaintiff's claim under the NLRA was that her employer had discharged her because of her activities on behalf of the restaurant employees and union.

The retaliation claim at issue in the instant case was brought under the Elliott-Larsen Civil Rights Act, MCL 37.2701(a); MSA 3.548(701)(a), which reads:

"Two or more persons shall not conspire to, or a person shall not:

"(a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act."

The basis of this claim was that the defendants had unjustifiably suspended her on two occasions in retaliation for her filing a complaint against defendants with the EEOC and in federal court alleging violations of her civil rights.

We find that these two statutes are not identical and that the same actions which would justify the issuance of a complaint under one statute do not necessarily justify the issuance of a complaint under the other statute. Given the bases for the respective claims in this case, we conclude that the NLRB's refusal to issue a complaint was not relevant to whether defendant engaged in retaliatory conduct prohibited under the Elliott-Larsen Civil Rights Act.

Further, the letter that was read to the jury was clearly inadmissible hearsay. This letter consisted of out-of-court statements and was offered into evidence to prove the truth of the matters asserted therein. MRE 801(c). Hearsay is not admissible unless it falls within one of the exceptions to the hearsay rule. MRE 802. Swartz v Dow Chemical Co, 414 Mich. 433, 443; 326 NW2d 804 (1982).

We are unpersuaded by defendant's argument that the letter falls within the MRE 803(8) exception to the hearsay rule which provides:

"(8) Public records and reports. Records, reports, statements, or data compliations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCLA 257.624; MSA 9.2324."

Our Supreme Court in Swartz v Dow Chemical, supra, pp 443-444, made clear that evaluative reports of this kind are not within the MRE 803(8) exception to the hearsay rule:

"MRE 803(8) allows statements from public records and reports to come into evidence over a hearsay objection. This rule, however, unlike FRE 803(8)(C), rejects the introduction in private civil actions of factual findings resulting from an investigation made in accordance with authority granted by law. Proposed MRE 803(8)(C), which was identical to FRE 803(8)(C), was found to be inconsistent with prior Michigan law and was rejected. Committee Note, MRE 803(8)." (Footnote omitted.)

In Bradbury v Ford Motor Co, 419 Mich. 550, 554; 358 NW2d 550 (1984), the Supreme Court explained that, in disallowing the admission of investigative reports, MRE 803(8)(B) "reflects the narrow common-law rule which limits public reports of matters observed by agency officials to reports of objective data observed and reported by these officials". (Emphasis added.) In the case at bar, we do not dispute defendants' claim that, under 29 USC 160(c), the NLRB has a duty imposed by law to report its findings of fact and issue a decision whether to issue a complaint. However, it is obvious that the letter which was read to the jury did not consist of a report of objective data, but consisted of an evaluative factual finding resulting from the NLRB's investigation of plaintiff's claim. Therefore, the letter did not fall within MRE 803(8)(B), or any other exception to the hearsay rule, and was erroneously admitted.

We find this evidence particularly prejudicial because of the inference placed before the jury that the NLRB had given to defendant's actions its official imprimatur. Therefore, we reverse and remand for a new trial on this basis also. Swartz v Dow Chemical Co, supra, p 444.

Plaintiff also contends that the trial court erred when it would not allow plaintiff to introduce in her case in chief testimony concerning the sexual harassment received by other waitresses at Host when they were required to wear the sexually revealing uniforms.

Plaintiff sought to testify as to her personal knowledge of attempts made by other waitresses at Host to make their uniforms more modest. Plaintiff also sought to introduce testimony of Mrs. Cooper and Mrs. Marentette, two waitresses at Host, concerning the sexual harassment they received while wearing the revealing uniforms. While some testimony of this sort was admitted on the issue of notice to defendants, the plaintiff was not allowed to introduce the other instances of harassment in her case in chief for other purposes.

In deciding this issue, we are guided by federal law.^[7]

In Vinson v Taylor, ___ US App DC ___; 753 F2d 141, 146, fn 40 (1985), the Court of Appeals for the District of Columbia held that such evidence was relevant to the determination of whether the employer had created an environment in which sexual harassment was pervasive for purposes of a Title VII claim. The court further held that it was error to exclude such evidence because the evidence "could be critical to a plaintiff's case, for a claim of harassment cannot be established without a showing of more than isolated indicia of discriminatory intent". Id. Accord, Bundy v Jackson, 205 US App DC 444, 453, fn 9; 641 F2d 934 (1981). See also Donaldson v The Pillsbury Co, 554 F2d 825, 832-833 (CA 8, 1977), cert den 434 U.S. 856; 98 S. Ct. 177; 54 L. Ed. 2d 128 (1977).

Like Title VII of the Civil Rights Act of 1964, the Elliott-Larsen Civil Rights Act provides in pertinent part that "[a]n employer shall not: * * * [s]egregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment * * *". MCL 37.2202(c); MSA 3.548(202)(c). Further, the Elliott-Larsen Civil Rights Act sets forth the following standard for determining when discrimination due to sexual harassment occurs:

"(h) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

"(i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.

"(ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual's employment, public accommodations or public services, education, or housing.

"(iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment." MCL 37.2103(h); MSA 3.548(103)(h) (emphasis added).

We believe the evidence sought to be admitted by plaintiff was directly relevant to the question of whether, by imposing the uniform requirement, defendant had created an environment in violation of the Elliott-Larsen Civil Rights Act. Therefore, it was error to exclude it.

We do not believe, however, that it was error for the trial court to exclude the pictures of waitresses who did not testify at the trial. The pictures, standing alone, were not probative on the issue of whether sexual harassment was engendered by the wearing of the uniforms.

Nor can we rule that it was error to exclude the testimony of Mrs. Farr concerning the statements of another waitress, Mrs. Waters. Defendant objected to this evidence and the trial court excluded it on the basis that it was inadmissible hearsay. While the plaintiff argued at trial that the statements were admissions because they were made by an agent or servant within the scope of the agency or employment, MRE 801(d)(2)(D), plaintiff did not make an offer of proof as to the contents of the statements. Therefore, this issue was not preserved for appeal. MRE 103(a)(2); Duckett v North Detroit General Hospital, 84 Mich. App. 426, 432-433; 269 NW2d 626 (1978).

Plaintiff also argues that the admission of a letter from Dr. Maitra was error inasmuch as the letter constituted inadmissible hearsay. We agree.

This letter was found in the file of plaintiff's treating physician, George Dean, M.D. Dr. Maitra had never treated plaintiff but had examined her at the request of Michigan Host's insurer for the purpose of defending against plaintiff's workers' compensation claim. Dr. Maitra did not testify but his letter, in modified form, was submitted to the jury over plaintiff's objection as evidence of the truth of the matters asserted therein regarding the extent of plaintiff's injuries.

We find that this letter was hearsay. Hearsay is inadmissible except as provided by the hearsay exceptions. MRE 802; Hahnke v Ball, 60 Mich. App. 114; 230 NW2d 333 (1975). Defendant offered no exception to the hearsay rule at trial but the trial court apparently justified the admission of the letter under the business record exception to the hearsay rule, MRE 803(6). The exception in MRE 803(6) provides:

"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, or events, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term `business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

In Carbonell v Bluhm, 114 Mich. App. 216, 228; 318 NW2d 659 (1982), lv den 417 Mich. 871 (1983), we noted that the Michigan rule differs from its federal counterpart, FRE 803(6). The Michigan rule applies to "acts, transactions, occurrences, or events" while the federal rule applies to "acts, events, conditions, opinions or diagnoses" (emphasis added). Thus, this Court has concluded that statements in hospital records relating to acts, transactions, occurrences, or events may be admissible under MRE 803(6). Lovend v William Beaumont Hospital, 78 Mich. App. 686, 688-689; 261 NW2d 37 (1977). Statements referring to general descriptions of physical conditions have been included in this category. Bond v Greenwood, 34 Mich. App. 41, 43; 190 NW2d 731 (1971). However, statements referring to a patient's history or medical diagnosis have been deemed excluded from this exception. Sponenburgh v Wayne County, 106 Mich. App. 628, 652; 308 NW2d 589 (1981).

In the case at bar, while the ultimate opinion of Dr. Maitra as to whether the plaintiff suffered a disability was excised from the letter, the statements referring to plaintiff's medical history were not. The admission into evidence of these statements was clear error. Further, we entertain doubts as to whether portions of the remaining statements in the letter were admissible under this exception because they appear to be more in the nature of the doctor's opinion as to plaintiff's condition as opposed to a general description of her physical condition. See Wade v Bay City, 57 Mich. App. 581; 226 NW2d 569 (1975), app dis 394 Mich. 755 (1975), for a discussion of this issue. However, regardless of whether the statements may be considered opinions or general descriptions of plaintiff's physical condition, we find that defendant did not lay a sufficient foundation for admission of this letter under MRE 803(6).

Foremost, this letter is lacking in the inherent reliability and trustworthiness that has been the basis offered to justify this exception. See generally 5 Wigmore, Evidence (Chadbourn Rev), §§ 1522-1528, pp 442-449. Dr. Maitra was employed by defendant's insurer to examine plaintiff in order to defend defendant against plaintiff's workers' compensation claim. It is clear that Dr. Maitra's letter was not written for the purpose of treating plaintiff, but was written for the purpose of evaluating a disability claim.^[8] Therefore, before it could have been admitted into evidence, plaintiff should have been accorded the right to cross-examine the maker of the letter, Dr. Maitra. See Carlisle v General Motors Corp, 126 Mich. App. 127, 129; 337 NW2d 4 (1983). Since plaintiff was not accorded this right of cross-examination, we find that the admission of the letter was error.

Because we reverse the jury verdict and remand for a new trial, we also review the trial court's ruling as to the scope of recoverable damages.

The trial court prohibited plaintiff from pursuing damages prior to May, 1976. This date was arrived at by applying the three-year period of limitations in MCL 600.5805(7); MSA 27A.5805(7), plus 20 months credit for the time during which plaintiff's case was pending in federal court, to the time of the filing of the instant lawsuit on January 28, 1981. We agree with this aspect of the court's holding.

The three-year period of limitations for injuries to a person in MCL 600.5805(7) is applicable to an employee alleging discrimination in employment practices. Mair v Consumers Power Co, 419 Mich. 74; 348 NW2d 256 (1984); Gilbert v Grand Trunk W R Co, 95 Mich. App. 308, 316-317; 290 NW2d 426 (1980). Thus, the trial court was correct in applying this statute to limit the scope of damages recoverable by plaintiff to those occurring within three years of the date of plaintiff's filing her complaint. The trial court was also correct in crediting the 20-month period during which plaintiff's federal discrimination suit was pending. Plaintiff's claim in federal court was dismissed without reaching the merits because the relief prayed for was beyond the scope of Title VII relief. Marentette v Michigan Host, Inc, 506 F Supp 909, 913 (ED Mich, 1980). This Court has held that the running of the period of limitations is tolled pursuant to MCL 600.5856; MSA 27A.5856 where a plaintiff has previously filed an action against the same defendants and where no decision was rendered on the merits in the previous case.^[9]Affiliated Bank of Middleton v American Ins Co, 77 Mich. App. 376, 378-379; 258 NW2d 232 (1977); Meda v City of Howell, 110 Mich. App. 179; 312 NW2d 202 (1981).

On appeal, plaintiff urges this Court to extend the scope of recoverable damages to 1971, when plaintiff was first required to wear a sexually revealing uniform under the "continuing wrong" doctrine. Where applied in Michigan, this doctrine provides that "[w]here there are continuing wrongful acts within the period limited by statute * * * recovery is not barred". Defnet v Detroit, 327 Mich. 254, 258; 41 NW2d 539 (1950). However, while complete recovery may not be barred under the continuing wrong theory, the damages recoverable are limited to only those occurring within the period of limitation and, where appropriate, after the filing of the complaint. Phelps v Detroit, 120 Mich. 447; 79 N.W. 640 (1899).

While the continuing wrong theory has only been applied in Michigan to nuisance or property trespass cases, see Heisler v Rogers, 113 Mich. App. 630, 636; 318 NW2d 503 (1982), federal courts from the sixth circuit have found the doctrine applicable to alleged civil rights violations of a continuing nature.

In Marlowe v Fisher Body, 489 F2d 1057, 1063 (CA 6, 1973), the court applied the doctrine to alleged continuing violations of Title VII of the Civil Rights Act of 1964 to find that plaintiff's cause of action was not time barred, but foreclosed the recovery of damages for those acts of discrimination occurring more than three years prior to the date of the filing of the complaint. Where discrimination claims under the Elliott-Larsen Civil Rights Act have been brought to federal court, the district courts have likewise seen fit to limit the recovery of damages to only those occurring within the period of limitations. Richards v IBM Corp, 504 F Supp 1369 (ED Mich, 1981); Vandenhout v Manchester Plastics, Inc, 538 F Supp 401 (ED Mich, 1982).

Plaintiff points to federal cases outside the sixth circuit which allowed recovery for continuing violations of Title VII occurring outside of the period of limitations and invites this Court to adopt their views. We decline this invitation.

The concept of continuing violations was developed by the federal courts to resolve timeliness questions; however, the case law on this concept is inconsistent and confusing, being based upon a conglomeration of several different ideas. See Elliott v Sperry Rand Corp, 79 FRD 580, 585-586 (D Minn, 1978); Coleman v Clark Oil & Refining Co, 568 F Supp 1035 (ED Wis, 1983). The strain of the continuing violation doctrine as developed under federal law which is relevant to this case is that a systematic policy of discrimination is actionable even where some or all of the events evincing its inception occurred prior to the limitations period. The reasoning is that operation of the discriminatory system continues against the employee and violates his or her civil rights up to a point in time that falls within the applicable limitations period. Continuing violations are typically found in matters of placements or promotions. Under this theory, where an illegal policy is so maintained, relief for injuries sustained even before the limitations period is deemed appropriate. Acha v Beame, 570 F2d 57 (CA 2, 1978); Williams v Owens-Illinois, Inc, 665 F2d 918 (CA 9, 1982).

The continuing violation doctrine as applied by the federal courts to allow recovery for injuries occurring before the beginning of the period of limitation is diametrically opposed to the operation of the continuing wrong theory applied in Michigan. While we have found federal cases under Title VII useful as guidance in the application of our civil rights act, the federal cases need not control where state law demands a contrary result. Dep't of Civil Rights ex rel Jones v Dep't of Civil Service, 101 Mich. App. 295, 303; 301 NW2d 12 (1980).

In the present case, plaintiff seeks compensatory damages for the violations of her civil rights. We note that, under Title VII, such relief is not available. Marentette v Michigan Host, Inc, supra. Rather, the focus of Title VII relief is to "recreate the conditions and relationships that would have been had there been no" unlawful discrimination. Franks v Bowman Transportation Co, Inc, 424 U.S. 747, 769; 96 S. Ct. 1251; 47 L. Ed. 2d 444 (1976); International Brotherhood of Teamsters v United States, 431 U.S. 324, 372; 97 S. Ct. 1843; 52 L. Ed. 2d 396 (1977). This distinction compels us to restrict the scope of recoverable compensatory damages under the Elliott-Larsen Civil Rights Act to those occurring within the period of limitation.^[10]

The trial court in the case at bar also prohibited plaintiff from recovering any damages for emotional distress, mental anguish, and physical pain and suffering after October 15, 1980, the date plaintiff redeemed her workers' compensation claim. We find this aspect of the court's ruling inconsistent with our decision in Slayton v Michigan Host, Inc, 122 Mich. App. 411, 416-417; 332 NW2d 498 (1983), where we stated:

"We hold that a victim of discrimination may bring a civil suit to recover for damages for any humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish which flow from the discrimination injury. Such claims are not barred by the exclusive-remedy clause of the Worker's Disability Compensation Act because they are independent of any disability which might be compensable under the act. These types of injuries are the kind that the Elliott-Larsen Civil Rights Act was designed to protect against and to hold otherwise would undercut the legislative scheme to remedy discriminatory wrongs." (Citations omitted.)

The Supreme Court in Boscaglia v Michigan Bell Telephone Co, 420 Mich. 308, 316-317; 362 NW2d 642 (1984), has since written:

"The question whether physical, mental and emotional injuries are compensable under the FEPA or the civil rights act has not been briefed or argued, and hence we intimate no opinion in that regard. We think it self-evident, however, assuming the Legislature in enacting the civil rights acts intended to provide compensation for physical, mental or emotional injury resulting from discrimination, that it did not intend that objective would be defeated by the bar of exclusive remedy provisions of the workers' compensation act. Whatever may have been the intention of the Legislature in enacting the exclusive remedy provision of the workers' compensation act, if it intended in enacting civil rights legislation that workers discharged in violation of such legislation could recover for resulting physical, mental or emotional injury that intention would necessarily supersede or modify the scope of other legislation that otherwise would defeat the intent to permit such recovery." (Footnotes omitted.)

When we first remanded this case, we directed the attention of the parties and the trial court to the plaintiff's redemption agreement in order to determine what claims had been settled in the redemption proceeding. In that agreement, plaintiff redeemed all her claims for benefits under the Worker's Disability Compensation Act. On the same day, she also waived her seniority rights and released any claims she may have had against defendant for reemployment based on seniority rights.

With our previous decision and the Boscaglia holding in mind, we hold that plaintiff is entitled to seek recovery for those damages, physical, mental or emotional, which she can prove were unrelated to the disability already compensated for by the redemption agreement.

Reversed and remanded for proceedings not inconsistent with this opinion.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Against defendants Tawil and Vogel, plaintiff also alleged claims of intentional infliction of emotional distress, interference with plaintiff's contract of employment with defendant Host, and interference with advantageous business relations. In an order of summary judgment based on GCR 1963, 117.2(1), failure to state a claim, these causes of action were dismissed by the circuit court. Plaintiff does not appeal from this order.

[2] See Marentette v Michigan Host, Inc, 506 F Supp 909 (ED Mich 1980). This suit was brought by plaintiff and other employees of Host under Title VII of the Civil Rights Act of 1964 and was based on allegations similar to those in the instant appeal. Before the suit was tried, Host changed to a more modest uniform. Therefore, this federal court action was dismissed as moot.

[3] Slayton v Michigan Host, Inc, 122 Mich. App. 411; 332 NW2d 498 (1983).

[4] 42 USC 2000e-2.

[5] Gerdom v Continental Airlines, Inc, 692 F2d 602, 609 (CA 9, 1982), cert den 460 U.S. 1074; 103 S. Ct. 1534; 75 L. Ed. 2d 954 (1983).

[6] Fernandez v Wynn Oil Co, 653 F2d 1273, 1276-1277 (CA 9, 1981); Diaz v Pan American World Airways, Inc, 442 F2d 385, 389 (CA 5, 1971), cert den 404 U.S. 950; 92 S. Ct. 275; 30 L. Ed. 2d 267 (1971).

[7] This Court has held that federal precedent, although not binding, is persuasive in adjudicating discrimination claims under the Elliott-Larsen Civil Rights Act. Clark v Uniroyal Corp, 119 Mich. App. 820, 824; 327 NW2d 372 (1982); Local 526-M v Civil Service Comm, 110 Mich. App. 546, 552, fn 1; 313 NW2d 143 (1981), and Civil Rights Comm v Chrysler Corp, 80 Mich. App. 368, 375, fn 4; 263 NW2d 376 (1977).

[8] Since the letter was not written for the purpose of treating plaintiff, it could not, of course, come within the exception in MRE 803(4), statements made for purposes of medical treatment or diagnosis in connection with treatment.

[9] The trial court correctly allowed plaintiff to seek recovery for compensatory damages occurring before the enactment of the Elliott-Larsen Civil Rights Act on March 31, 1977. The act's predecessor, the Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1), et seq., did not provide for compensatory relief. However, the Michigan Supreme Court in Pompey v General Motors Corp, 385 Mich. 537, 553; 189 NW2d 243 (1971), held that "a person aggrieved by the violation of a civil rights statute is entitled to pursue a remedy which will effectively reimburse him for or relieve him from violation of the statute, notwithstanding the statute did not expressly give him such right or remedy".

Accordingly, plaintiffs have been allowed to seek recovery for damages which occurred as a result of discrimination before the enactment of the Elliott-Larsen Civil Rights Act. See e.g. Stimson v Michigan Bell Telephone Co, 77 Mich. App. 361; 258 NW2d 227 (1977); Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm, 122 Mich. App. 699; 332 NW2d 474, lv den 417 Mich 1100.37 (1983); King v General Motors Corp, 136 Mich. App. 301; 356 NW2d 626 (1984).

Further, as early as 1965, the FEPA was amended to prohibit sex discrimination in employment. 1965 PA 344. Citing Hudak v Ex-Cell-O Corp, 58 Mich. App. 135; 227 NW2d 251 (1975), lv den 394 Mich. 795 (1975), defendant claims that the amendment's prohibition against sex discrimination was unconstitutional as not within the object clause of the statute. However, 1972 PA 267 amended the object clause of the act to reflect the concerns about sex discrimination. Therefore, as of the date of the 1972 amendment, the FEPA contained a valid section against sex discrimination in the workplace. Because we hold that plaintiff may only seek recovery for damages occurring after May, 1976, we need not determine whether the FEPA contained a valid prohibition against sex discrimination before the effective date of the 1972 amendment. But see Bully v General Motors Corp, 120 Mich. App. 165, 172; 328 NW2d 24 (1982), lv den 417 Mich. 1026 (1983), where a panel of this Court held that the provision against sex discrimination in § 3a of the FEPA was not in violation of the title-object clause of the Michigan Constitution before the title's amendment in 1972.

Defendant points out that in Tucich v Dearborn Indoor Racquet Club, 107 Mich. App. 398; 309 NW2d 615 (1981), lv den 413 Mich. 914 (1982), this Court held that the Elliott-Larsen Civil Rights Act should not be applied retroactively. However, in Tucich this holding was appropriate because the plaintiffs had failed to state a cause of action based on alleged violations of the public accommodations act, MCL 750.146; MSA 28.343, occurring before the enactment of the Elliott-Larsen Civil Rights Act. Partially dispositive to our holding in that case was our finding that the Elliott-Larsen Civil Rights Act did not replace or repeal any portion of the public accommodations act. See MCL 37.2804; MSA 3.548(804). In this case, plaintiff claims damages for violations under § 202 of the Elliott-Larsen Civil Rights Act, which replaced the repealed FEPA.

MCL 8.4a; MSA 2.214 provides:

"Sec. 4-a. The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability."

Because plaintiff has stated a cause of action which would be viable under both the FEPA and Elliott-Larsen Civil Rights Act, she should be able to seek recovery for those damages occurring before the enactment of the Elliott-Larsen Civil Rights Act and while the FEPA was still in effect. A holding to the contrary would be tantamount to stating that the Elliott-Larsen Civil Rights Act takes away rights which have already accrued. We do not believe that such a holding is appropriate for a remedial statute such as the one involved here.

[10] We leave to another day the question of whether the continuing wrong doctrine may be applied differently to relief other than compensatory damages.