Lowry v. Sinai Hosp. of Detroit, Docket No. 62515

• Decision Date: 20 January 1984
• Docket Number: Docket No. 62515
• Citation: 129 Mich.App. 726,343 N.W.2d 1
• Parties: , 41 Fair Empl.Prac.Cas. (BNA) 1433, 34 Empl. Prac. Dec. P 34,476 Rosemary LOWRY, Plaintiff-Appellant, v. SINAI HOSPITAL OF DETROIT, a Michigan corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 1

343 N.W.2d 1

129 Mich.App. 726, 41 Fair Empl.Prac.Cas. (BNA) 1433,

34 Empl. Prac. Dec. P 34,476

Rosemary LOWRY, Plaintiff-Appellant, v. SINAI HOSPITAL OF DETROIT, a Michigan corporation, Defendant-Appellee.

Docket No. 62515.

Court of Appeals of Michigan.

Submitted Dec. 13, 1982.

Decided Oct. 3, 1983.

Released for Publication Jan. 20, 1984.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by John P. Jacobs, Detroit, for plaintiff-appellant.

Honigman, Miller, Schwartz & Cohn by A. David Mikesell, Detroit, for defendant-appellee.

Before DANHOF, C.J., and J.H. GILLIS and DEMING, ^* JJ.

J.H. GILLIS, Judge.

Plaintiff appeals as of right from an order granting summary judgment in defendant's favor pursuant to GCR 1963, 117.2(1).

In November, 1977, plaintiff was hired by defendant and satisfactorily performed the duties of her job as a security officer. In August, 1979, plaintiff married William Lowry, who was also employed by defendant as a security officer. After her marriage, plaintiff was reminded that hospital personnel policy ¹ prohibited spouses from working in the same department at the same time, and she or her husband was required to terminate employment or transfer to another department. In December, 1979, plaintiff transferred to a lesser-paying job in another department. Because she could not receive merit increases or be promoted from that position, plaintiff left defendant's employment in August, 1980. Shortly thereafter, plaintiff filed this employment discrimination action under the Elliott-Larsen Civil Rights Act, ² alleging that she had been constructively discharged for reasons related to her marital status.

The issue is whether defendant's antinepotism policy, as applied to plaintiff, constitutes "marital status" discrimination within the meaning of M.C.L. § 37.2202; M.S.A. § 3.548(202), which provides:

"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.

"(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status."

We hold that it does not.

Since the term "marital status" is not defined in the act, it is the Court's responsibility to interpret the statute and, in doing so, the object is to ascertain and give effect to the legislative intent. City of Lansing v. Lansing Twp., 356 Mich. 641, 648, 97 N.W.2d 804 (1959); Smith v. Elliard, 110 Mich.App. 25, 29, 312 N.W.2d 161 (1981), lv. den. 413 Mich. 944 (1982). To ascertain intent, the Court will review the specific language of the provision, giving all terms their plain and ordinary meaning absent a contrary legislative intent. The Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104, 110, 252 N.W.2d 818 (1977); Smith v. Elliard, supra.

In ordinary usage, the term "status" refers to one's standing or position. ³ "Marital status", then, refers to one's position of being single, married, separated, divorced or widowed. In Klanseck v. Prudential Ins. Co. of America, 509 F.Supp. 13, 18 (E.D.Mich.1980), Judge Thornton found that an employer's policy of prohibiting two persons who are married to each other from both being district agents did not violate the Elliott-Larsen Civil Rights Act. The court found a clear distinction between marital status and marital relationship:

"This Court believes there is merit to the argument that the company policy herein at issue is not one of discrimination because of 'marital status.' The policy does not come into play by virtue of a person getting married and assuming the status of a married person. It only comes into play if the marriage is between two District Agents. That who you are married to rather than if you are married is a significant distinction in evaluating discrimination because of marital status is well supported by respectable case law. [Citations omitted.] The identity and occupation of a spouse is a far cry from the fact of his/her existence. The statute herein prohibits discrimination on the basis of the existence or nonexistence of a spouse. It says nothing about discrimination because of a spouse having the same employer as the employee. It appears to this Court that defendant's non-spousal policy is not violative of the Michigan statute at issue herein."

Accord: Thompson v. Sanborn's Motor Express, Inc., 154 N.J.Super. 555, 382 A.2d 53 (1977); Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y.2d 506, 434 N.Y.S.2d 961, 415 N.E.2d 950 (1980).

Defendant's antinepotism policy focuses not on the marital status of an employee or prospective employee but, rather, on his or her familial relationship to other employees within the same unit or department.

As the statute is written, we can discern no legislative intent to prohibit the type of antinepotism regulation here involved.

The judges of the Court of Appeals have unanimously agreed to a procedure to secure and maintain uniformity of decisions. Pursuant to such procedure, ⁴ the judges have agreed to follow Miller v. C.A. Muer Corp., 124 Mich.App. 780, 336 N.W.2d 215 (1983), as precedent as opposed to the views expressed in the instant opinion. Accordingly, we follow Miller v. C.A. Muer Corp.

Reversed and remanded to the trial court for further proceedings.

DEMING, J., concurred.

DANHOF, Chief Judge (concurring).

I concur in reversal of the instant case for the reasons stated in Miller v. C.A. Muer Corp., 124 Mich.App. 780, 336 N.W.2d 215 (1983).

* Hudson E. Deming, 5th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

1 Defendant's personnel policy stated in pertinent part:

"It is the policy of Sinai Hospital to consider filling vacant positions with qualified applicants including relatives of employees when the qualifications of such...