Slayton v. Michigan Host, Inc., Docket No. 73858

• Decision Date: 12 November 1985
• Docket Number: Docket No. 73858
• Citation: 144 Mich.App. 535,376 N.W.2d 664
• Court: Court of Appeal of Michigan — District of US
• Parties: Donna May SLAYTON, Plaintiff-Appellant, v. MICHIGAN HOST, INC., a Delaware Corp., Jack Vogel & Betty Tawil, Defendant- Appellees. 144 Mich.App. 535, 376 N.W.2d 664, 43 Fair Empl.Prac.Cas. (BNA) 1847, 39 Empl. Prac. Dec. P 35,844, 122 Lab.Cas. P 57,034

Page 664

376 N.W.2d 664

Donna May SLAYTON, Plaintiff-Appellant, v. MICHIGAN HOST, INC., a Delaware Corp., Jack Vogel & Betty Tawil, Defendant- Appellees.

Docket No. 73858.

144 Mich.App. 535, 376 N.W.2d 664,

43 Fair Empl.Prac.Cas. (BNA) 1847,

39 Empl. Prac. Dec. P 35,844,

122 Lab.Cas. P 57,034

Court of Appeals of Michigan.

Submitted Feb. 13, 1985.

Decided Aug. 5, 1985.

Released for Publication Nov. 12, 1985.

[144 MICHAPP 539] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiff-appellant.

Butzel, Long, Gust, Klein & Van Zile, P.C. by Donald B. Miller, Detroit, for defendant-appellees.

Before J. H. GILLIS, P.J., and HOOD and 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, [144 MICHAPP 540] 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 by both 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:

[144 MICHAPP 541] "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." M.C.L. Sec. 37.2202(a); M.S.A. Sec. 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 N.W.2d 598 (1982); C Thorrez Industries, Inc. v. Civil Rights Comm, 88 Mich.App. 704, 707-708, 278 N.W.2d 725 (1979); Civil Rights Comm. v. Chrysler Corp, 80 Mich.App. 368, 372-373, 263 N.W.2d 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 N.W.2d 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[144 MICHAPP 542] 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 [144 MICHAPP 543] 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 F.2d 1194, 1198 (CA7, 1971), cert. den. 404 US 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:

[144 MICHAPP 544] "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. Libkie, 101 Mich.App. 331, 338, 300 N.W.2d 560 (1980), rem, 411 Mich. 942, 308 N.W.2d 98 (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 N.W.2d 562 (1959); Bailey v. Graves, 411 Mich. 510, 516, 309 N.W.2d 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 [144 MICHAPP 545] 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...