As to the motivation for this proposed amendment, Representative Driskell noted on her webpage that:

In Michigan, women make about $13,000 less than men on average. That makes our state 44th in pay equity. Too many families are already struggling. Equal pay will help hard-working Michigan women make ends meet.

As to the bill, it would amend Michigan's Elliott-Larsen Civil Rights Act to include as a violation an employers failure or refusal to provide equal compensation because of religion, race, color, national origin, age, sex, height, weight, or marital status. 

The Persistent Wage Gap Between Men and Women

The need for a statutory enforcement mechanism for equal pay is somewhat remarkable given that efforts to remedy pay discrepancies date back to 1963 when women were paid 59 cents for every dollar paid to men.  In that year, President Kennedy signed the Equal Pay Act, making it illegal for employers to pay lower wages to women doing substantially the same work as their male counterparts.

The next year, Title VII of the Civil Rights Act of 1964 was enacted, making it illegal to discriminate, including in compensation, on the basis of sex, race, color, religion, and national origin. However, almost 50 years after the Equal Pay Act became law, estimates still identify women as being paid an average of 77 cents for every dollar paid to men.

Conclusion

The employment attorneys at Shinn Legal, PLC will continue to monitor this package of amendments. To stay on top of these and other Michigan employment law matters, we encourage you to subscribe to this Blog as well as connect with us on Twitter, Facebook, or on our Google + page.

Or if you are old-fashioned, you can also contact Jason Shinn directly about your particular employment law question. Jason Shinn is an experienced employment law attorney, having worked with national and local companies to address federal and Michigan employment law issues since 2001, as well as defending them against agency charges of discrimination or employment discrimination lawsuits.

For any number of reasons these allegations - assuming them to be true - revealed the significant legal and evidentiary issues the hospital faced in responding to the employment discrimination lawsuit. And presumably that trouble contributed to a quick settlement of the case, which was announced on February 22, 2012 (See Dominic Adam's reporting on this settlement). A second lawsuit (PDF), however, was filed by another African-American nurse and this case is still pending.

Regardless of what happens with this second suit or the reasons the first settled, both provide a number of points that employers and employees should understand when it comes to discrimination based on customer preferences.

This lawsuit also revealed a significant amount of frustration and misunderstanding among people following this story. Consider the following comments posted on the Detroit Free Press website (all comments are provided verbatim): 

• this is rediculous !!! the racist is a horrible person. but so what. he is paying for a service.he can request anything he wants. how is the nurse at a loss for anything ?? THERE WAS NONE !! this is truely unbelievable !!!! B. Holtslander
• She was not allowed to care for a specific child. Did she lose hours? NO. Did she lose pay? NO While the father's request was dispicable, what was the real harm to this nurse? D. Markham
• As much as I disagree with the father's racist views on African-Americans, they are his views. In health care, we are taught to put aside our beliefs and respect other people's culture and views, and not to judge. In that sense, the Hospital did the right thing. They respected the beliefs and culture of the father, and followed his wishes. As weird as that sounds, it was the right thing to do. A nurse of 25 years should be insulted by the racist father, but she should also realize that part of the job is respecting the culture of others, as weird as that feels with regards to a racist. R. Burchett
• Being a racist aside, he probally does have the right to decide who cares for his child. No win situation. Get sued by a nurse who could have moved on and cared for another patient or get sued by the father. C. Cunningham
• Truth be told, female patients often request care from female nurses and aides, and are probably quietly accommodated. Shhhhh. R. Rustbelt

Misconceptions About Discriminatory Customer Preferences and Employers 

First, the Hurley Hospital Lawsuit illustrates the difficult situation employers are in when a customer makes a request that would constitute unlawful discrimination under Michigan or federal law. Specifically, businesses need to keep their customers happy. They also need to comply with state and federal anti-discrimination laws. Sometimes achieving both goals is a management challenge, because customers may not always have respectable beliefs or be model citizens.

And while the Hurley litigation involved race, customer preference issues can arise under other circumstances. For instance, imagine a company's major client representative is a man who likes to be entertained at clubs with "strip" in their title. It would be discriminatory to remove a female from this account under the belief that a “guy” would be more suited to take the male customer representative out to such clubs. 

The second point to realize is that employers cannot make discriminatory decisions motivated by considerations such as race, religion, or gender based upon a customer's preference under either Michigan or federal anti-discrimination laws. 

Third, while employers have obligations under the preceding laws, a person has the the right to their beliefs and opinions, even if those beliefs and opinions are widely considered to be racist, objectionable, or otherwise discriminatory. But going back to the preceding point, an employer subject to state or federal discrimination laws cannot facilitate the carrying out of those opinions that would unlawfully discriminate against individuals.  

Fourth, both Michigan and federal anti-discrimination laws recognize that in certain limited circumstances, an employer may have a legitimate reason to seek an employee of a particular gender or religion, even though such a preference would ordinarily be illegal. These are called bona fide occupational qualifications ("BFOQ"). A critical determination in assessing the appropriateness of a BFOQ is whether a customer preference involves fundamental rights such as privacy. 

Examples of such privacy issues and when an employer may legitimately make a BFOQ when it comes to customer preference issues include a patient objecting to being bathed by caregivers of the opposite sex, janitors assigned to clean restrooms that cannot be closed during cleaning, or security guards assigned to perform strip searches. 

But employers must understand that under both Michigan and federal anti-discrimination laws, racially motivated decisions are not going to be considered a BFOQ. 

 For more information about compliance with anti-discrimination statutes, as well as federal or Michigan employment discrimination issues, contact Jason Shinn. 

While most parents of newborns would be more concerned about a nurse or medical provider's qualifications, schooling, experience, training, etc., this new father is alleged to have bypassed these details and told the charge nurse that no African Americans were to take care of his newborn. In support of this request, it is alleged the man then showed the charge nurse a swastika tattoo on his arm. It is not clear if this showing was intended to substantiate the man's request or the ignorance behind the request.  

The Complaint further alleges that the employer accommodated the racist request and that at some point, hospital personnel expressly noted in the chart of the newborn the following, "Please, no African-American nurses to care for ... baby per dad's request" (as an aside, beginning a racist request with "please" does not make it any less racist). 

 Based on these allegations, the plaintiff nurse sued her employer for claims related to racial harassment and discrimination under Michigan and federal law by the employer in accommodating the father's racist request.

Can Employers be Liable for Hostile Environments and Discriminatory Acts of its Customers?

The short answer to the preceding question is "yes," but it is a very long, factually intense, and nuanced analysis that employers need to understand in order to determine their liability and responsibilities for addressing workplace harassment or discrimination by customers or non-employee third parties.  

Overview of Hostile Work Environment Legal Issues

Generally an employer will be liable for a hostile work environment if the employee/plaintiff can establish the following elements:

1. The individual is a member of a protected class; 
2. The individual was subjected to harassment, either through words or actions, based on race; 
3. The harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile or offensive work environment; and 
4. There exists some basis for liability on the part of the employer. 

Additionally, harassment must meet both an objective and a subjective test. This simply means that the at issue conduct must be so severe or pervasive as to constitute a hostile or abusive working environment both to a reasonable person and the actual individual.

Workplace Harassment and Discrimination by Non-Employees

In order for alleged harassment by non-employees, e.g. patients and visitors, to be actionable against an employer, the individual plaintiff must show that the defendant employer failed to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.

Closing Thoughts on Employer Liability for Discriminatory Conduct of Non-employees

The case against Hurley Medical Center was only filed earlier this week and, therefore, it is too premature to assess whether the employer will be held liable for the racist and discriminatory request of a non-employee. Certainly the allegations do not paint a factually favorable picture for the employer. But if you don't have the facts on your side, then argue the law. And legally speaking, it will be interesting what, if any, evidence plaintiff will be able to point to showing a discriminatory animus on the part of management and supervisory personnel of the hospital.  

Further, this blog has previously discussed a lawsuit for discrimination based on similar facts against a hospital by its employee (also a nurse) involving discrimination and a hostile work environment created by non-employee patients. In that case, Rawls v. Garden City Hospital, the employee claimed that patients and visitors created a hostile work environment by using racial slurs.

The Rawls case, however, was dismissed in favor of the employer (PDF) and in reaching this decision, the court specifically discussed the reasonable and immediate corrective action taken by the employer. Those actions included removing or offering to remove the plaintiff nurse from the situation by temporarily assigning her to another area of the ER and then quickly treated and discharged the patients. The defendant employer successfully argued that its actions ensured that, on one hand, the plaintiff was no longer subject to further encounters with those patients or visitors, while on the other hand, the patients and visitors received necessary medical treatment.

While the plaintiff was clearly dissatisfied with her employer's response, the Court agreed with the employer that it acted appropriately to remedy or prevent alleged harassment of plaintiff by non-employee patients and visitors.

Regardless of who wins the lawsuit, it is clear that the likely loser in this matter is the baby of the the father who ignited the discrimination lawsuit in the first place. Hopefully that kid will be able to overcome his dad's "values." If not, maybe they will at some point take fashion advice from Mr. Steven Colbert (watch through to the end of the video for the advice). 

But I found it more interesting that news outlets mostly bypassed leading with her professional achievements and focused on Ms. Mayer's pending pregnancy. Consider for example this sampling: 

• Mayer Becomes Highest-Profile Pregnant Woman Hired as CEO;
• Marissa Mayer: The First Ever Pregnant CEO Of A Fortune 500 Tech Company?;
• Marissa Mayer Pregnant: New Yahoo CEO Expecting A Baby Boy;
• New Yahoo CEO Marissa Mayer Is Pregnant. Does It Matter?; and
• New Yahoo CEO Marissa Mayer Is Pregnant.

The coverage that Ms. Mayer's pregnancy received highlight two points relative to employment and pregnancy. 

The Media Can Make a Big Deal about a Pregnant Employee; Employers Shouldn't. 

First, any employer that announced hiring decisions or made employment decisions based on pregnancy would make headlines for all the wrong reasons. 

This is because under Michigan law, pregnancy discrimination is prohibited. To prove pregnancy discrimination, a plaintiff must show that the employer discriminated against the employee on the basis of a pregnancy. MCL 37.2202(1)(a) (Technically, the Michigan statute prohibits employment discrimination because of sex and MCL 37.2201(d) defines "sex" to include pregnancy). 

In addition to the headlines, is the cost of discrimination. The Equal Employment Opportunity Commission reported at the beginning of 2012 that "53,865 charges alleging pregnancy discrimination" had been made over the past 10 fiscal years. These charges resulted in $150.5 million in monetary benefits for charging parties.

One reason for the number of filings may relate to the consistently high percentage of mothers in the U.S. workforce with children under 18 years of age. The chart from the Catalyst, a nonprofit organization focused on expanding opportunities for women and businesses, illustrates this point: 

LABOR FORCE PARTICIPATION RATE OF MOTHERS (WITH CHILDREN UNDER 18)

On the one had, these numbers are encouraging in that women with children have the opportunity to remain in or return to the workforce. But on the other hand, it is worth noting that the U.S. is one of only a few countries on the planet where employers are not required to offer mandatory maternity leave. In contrast, countries like Canada and Norway provide 40 weeks or more of paid maternity leave.

Women - Young and Old - Still Underrepresented in the Ranks of CEOs. 

Second, it was also reported that Ms. Mayer is one of the youngest female CEOs. But you could drop "young" from that headline and it is still newsworthy.

This is because women significantly remain underrepresented when it comes to the rank of CEO.

Consider for example these numbers from a 2009 article from Harvard Business Review:  

When we studied the leadership of 2,000 of the world's top performing companies, we found only 29 (1.5%) of those CEOs were women, an even smaller percentage than on the Fortune 500 Global list (2.6%).

Closing Thoughts

While the workplace has certainly evolved to be gender-blind (most of the time) it is interesting that outside of the workplace women still face greater scrutiny in the media and public discussions when they decide to have a career and have children.

And it is a scrutiny that simply does not exist for men. Take Google co-founder Larry Page; He was expecting his second child two months after he took the CEO title at Google. That is probably news to most because there were no headlines, social media discussions, or debates about whether he could lead a technology giant and still be a father. 

Unfortunately, Mr. Page had it much easier than Ms. Mayer's circumstances: Google vs. Yahoo (do you need to say anything more?) and no one questioned his decision to be a father and CEO. Aside from dealing with the occasional guilt experienced because you make more for no other reason than gender, being a guy is a really good gig.   

For more information regarding avoiding pregnancy discrimination and other employment law claims, contact Jason Shinn.  

For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.” 

At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him. 

Reverse Discrimination under Michigan and Federal Law

Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.

Under both Michigan and federal employment discrimination law, an employment plaintiff - minority and non-minority - must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:

1. Was a member of a protected class; 
2. Suffered an adverse employment action; 
3. Was qualified for the position; and 
4. Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Duch v. Mich. Dep't of Corr. (E.D. Mich. Feb. 15, 2011).

Reverse Discrimination Differences under Michigan and Federal Law

In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate "background circumstances" to support the suspicion that the defendant is that unusual employer who "discriminates against the majority." 

In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved. 

Closing Thoughts

Mr. Hecht's verdict is a good reminder of three important points:

• Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination; 
• A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
• There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.