Michigan Dept. of Civil Rights ex rel. Parks v. General Motors Corp., Fisher Body Div.

• Decision Date: 05 November 1979
• Docket Number: Docket No. 78-1885
• Citation: 26 Fair Empl.Prac.Cas. (BNA) 326,93 Mich.App. 366,287 N.W.2d 240
• Parties: MICHIGAN DEPARTMENT OF CIVIL RIGHTS, ex rel. Mary PARKS, Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, a Foreign Corporation, Respondent-Appellee. 93 Mich.App. 366, 287 N.W.2d 240, 26 Fair Empl.Prac.Cas. (BNA) 326, 22 Empl. Prac. Dec. P 30,647
• Court: Court of Appeal of Michigan — District of US

Page 240

287 N.W.2d 240

MICHIGAN DEPARTMENT OF CIVIL RIGHTS, ex rel. Mary PARKS Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, a Foreign Corporation, Respondent-Appellee.

Docket No. 78-1885.

93 Mich.App. 366, 287 N.W.2d 240,

26 Fair Empl.Prac.Cas. (BNA) 326,

22 Empl. Prac. Dec. P 30,647

Court of Appeals of Michigan.

Nov. 5, 1979.

Released for Publication Jan. 29, 1980.

[93 MICHAPP 368] Gary G. Kress, Asst. Atty. Gen., Detroit, for appellant.

Michael J. Connolly, Detroit, for respondent-appellee.

Before BEASLEY, P. J., and ALLEN and RILEY, JJ.

ALLEN, Judge.

This case presents a question of first impression in this jurisdiction: Whether the Michigan State Fair Employment Practices Act (FEPA), and in particular § 3(a) thereof, M.C.L. § 423.303(a); M.S.A. § 17.458(3)(a), prohibiting an employer "to discriminate against" any employee because of religion also imposes a duty on the employer to make reasonable accommodation to the religious needs of employees. The trial court answered that question in the negative and the Department of Civil Rights appeal of right. We affirm. However, our [93 MICHAPP 369] affirmance is limited to the FEPA and does not extend to the Elliott-Larsen Civil Rights Act which replaced the FEPA effective March 31, 1977. ¹

FACTUAL BACKGROUND

This action originated with a complaint filed with the Michigan Civil Rights Commission by the claimant, Mary Parks, on October 19, 1972, alleging that the respondent, General Motors Corporation, Fisher Body Division, had unlawfully discriminated against her on the basis of religion by releasing her from employment. The case was decided below, and was submitted to this Court on a stipulation of facts entered into by the parties on March 2, 1976.

On September 18, 1972, the claimant was hired by the respondent as an hourly employee on the second shift (4 p. m. to 12:30 a. m.) at its Pontiac, Michigan plant. As a practicing Seventh Day Adventist, the claimant was forbidden, for religious reasons, to work on the Sabbath. The Seventh Day Adventist Sabbath is celebrated from sundown Friday to sundown Saturday. As a consequence of her strict observance of the Sabbath, claimant refused to work on Friday, September 22. Four days later, September 26, 1972, appellant, Michigan Civil Rights Commission, promulgated "interpretive guidelines" to the effect that the statutory prohibition against discrimination included a duty to make reasonable accommodation to the employee's religious needs. Three days after the promulgation of the guidelines, Friday, September 29, [93 MICHAPP 370] and the following Friday, October 6, 1972, claimant refused to work on her Sabbath. Each of her proposed absences and the reasons therefor were reported by claimant to her foreman on the Thursday preceding the absences. As a result of these religion-based absences, the claimant's employment with the respondent was terminated on October 9, 1972, for the reason that she was "unable to meet conditions of employment".

Following the filing of a complaint charging the employer with religious discrimination against the employer, the Michigan Civil Rights Commission issued an administrative charge on September 8, 1975.

Based upon the submitted stipulation of facts, the Commission determined that religious discrimination had occurred by finding that the respondent could have made reasonable accommodations to the claimant's religious needs, and thereby could have avoided her termination. An opinion to this effect was issued by the Commission on September 23, 1976, and the respondent was ordered to cease and desist from discriminating against claimant on the basis of religion, to reinstate claimant in her former or a comparable position, and to pay claimant all back pay accrued since the alleged discrimination.

On October 6, 1976, the order was appealed to the circuit court wherein the court issued an opinion ruling that the Michigan Civil Rights Commission exceeded its authority in adopting and enforcing its religious accommodation guidelines. Accordingly, on April 26, 1978, the circuit court judge issued an order setting aside the Commission's order and ruling essentially that based upon applicable authority the Michigan Civil Rights Commission could not require employers to reasonably accommodate the religious needs of its employees. Claimant appeals to this Court.

[93 MICHAPP 371]

APPLICABLE LAW

Section 3 of FEPA, 1955 P.A. 251 as amended; M.C.L. § 423.303; M.S.A. § 17.458(3), provides in pertinent part:

"It shall be an unfair employment practice:

"(a) For any employer, because of the race, color, religion, national origin or ancestry of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment, or any matter, directly or indirectly related to employment, except where based on a bona fide occupational qualification."

This section remained essentially unchanged ² until the passage of the Elliott-Larsen Civil Rights Act in 1976, ³ and reflects rights later acknowledged in the state constitution. Const.1963, art. 1, § 2, art. 5, § 29, Pompey v. General Motors Corp., 385 Mich. 537, 559, fn. 20, 189 N.W.2d 243 (1971). However, these constitutional provisions did not create or define new civil rights in the area of private discrimination. Const.1963, art. 1, § 4, Pompey v. General Motors Corp., supra.

Following the lead of the Federal government, [93 MICHAPP 372] on September 26, 1972, the Michigan Civil Rights Commission promulgated "interpretive guidelines" construing § 3(a) of the FEPA as imposing an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business. ⁴ In making this interpretation the commission drew "on the well developed body of federal law". The statutory authority relied on by the commission in issuing this "interpretive guideline" allowed the commission to adopt, amend and repeal rules and regulations to carry out the provisions of the act, in accordance with the Administrative Procedures Act (M.C.L. § 24.71 Et seq.; M.S.A. § 3.560(7) Et seq. "To issue such publications * * * as in its judgment will tend to promote good will and minimize or eliminate discrimination." M.C.L. § 37.5(j); M.S.A. § 3.548(5)(j) since repealed.

and M.C.L. § 24.101 Et seq.; M.S.A. § 3.560(21.1) Et seq., repealed and replaced by 1969 P.A. 306, as amended, M.C.L. § 24.201 Et seq.; M.S.A. § 3.560(101) Et seq.), M.C.L. § 37.5(e); M.S.A. § 3.548(5)(e) since repealed, and

In addition, the commission cited as its authority for the "interpretive guideline" M.C.L. § 24.207(h); M.S.A. § 3.560(107)(h). This provision excepts from the general definition of a "rule":

"an interpretive statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory."

[93 MICHAPP 373] In stating its "Guidelines on Religious Discrimination" the commission relied on M.C.L. § 24.232(4); M.S.A. § 3.560(132)(4) which permits any administrative agency to adopt, by reference in its Rules, any regulation adopted by an agency of the Federal government. In so noting, the commission went on to adopt by reference the Guidelines on Religious Discrimination promulgated by the United States Equal Employment Opportunity Commission (EEOC) on July 10, 1967, and which appear in 29 CFR 1605.

Appellant correctly acknowledges that it cannot legislate or impose substantive duties or penalties beyond the scope of the legislative enactment authorizing it to prohibit religious discrimination. Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951); McKibbin v. Corporation & Securities Comm., 369 Mich. 69, 119 N.W.2d 557 (1963). The Civil Rights Commission's concession that the mere issuance of this "interpretative guideline", setting forth the agency's view of § 3(a) of the FEPA, is not binding in law, is correct since this guideline is nothing more than "an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person". M.C.L. § 24.203(6); M.S.A. § 3.560(103)(6). In addition, neither the authority relied on by the commission in issuing this guideline, nor the procedure followed in promulgating it, M.C.L. § 24.224; M.S.A. § 3.560(124), allows the commission to have its interpretation of § 3(a) given the force and effect of law Qua rule. Bienefeld, Michigan Administrative Law, 4-3 through 4-6, (ICLE, 1978). An agency cannot adopt a guideline in lieu of a rule. M.C.L. § 24.226; M.S.A. § 3.560(126). Thus, the agency's use of [93 MICHAPP 374] an interpretive guideline does not elevate the statement to the status of a legislative rule and no sanction may be imposed for violation of it. Hence,

"If a sanction is to be imposed, the agency will have to rely not on its interpretation of the statute but on the statute itself." Bienenfeld, Michigan Administrative Law, 4-6 (ICLE 1978),

and see, 1 Cooper, State Administrative Law, p. 265 (1965), Davis, Administrative Law Text, § 5.03 (3d ed., 1972). ⁵

Since it is clear that the interpretive guideline construing § 3(a) of the FEPA has no legal effect with respect to the respondent employer, it is necessary to determine whether that section, by its terms, I. e., the prohibition of religious discrimination, mandates that an employer make affirmative accommodations for the religious needs of its employees. Therefore, in light of the various intrinsic and extrinsic aids to construction of statutory provisions, we are required to decide whether the FEPA prohibition against religious discrimination in

employment practices includes a duty reasonably to accommodate the religious needs...