Opinion
Docket No. 62515.
Decided October 3, 1983. Leave to appeal granted, 418 Mich. 958.
Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen, P.C. (by John P. Jacobs), for plaintiff.
Honigman, Miller, Schwartz Cohn (by A. David Mikesell), for defendant.
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 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, alleging that she had been constructively discharged for reasons related to her marital status.
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 related applicants at least equal those of other applicants who are applying, in accordance with the provisions and procedures outlined below, providing such placements are in departments where their relatives are not working.
* * *
"Relatives are defined for purposes of this policy as only:
"Natural or Step -Father/Mother Spouse -Son/Daughter Grandparents -Brother/Sister Legal Guardians
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"No Department Head/Supervisor can have his relatives working in his department except with the written prior approval, which will be filed in the employee's personnel file, of the Hospital Administrator.
"When two employees in the same unit/department get married, one of the employees will be transferred to another unit/department as soon as possible."
Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.
The issue is whether defendant's antinepotism policy, as applied to plaintiff, constitutes "marital status" discrimination within the meaning of MCL 37.2202; MSA 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. 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. "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 (ED 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:
Webster's New World Dictionary (2d ed); Black's Law Dictionary (Rev 4th ed, 1968), p 1580.
"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 virute 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 nonspousal 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, 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.
The procedure for uniformity of decision is stated as follows:
CONFLICTING OPINIONS. If a panel of the Court of Appeals agrees upon an opinion which is in conflict with a prior published opinion of the Court of Appeals, the presiding judge shall immediately inform the Chief Judge and the Chief Clerk. If the Chief Judge agrees there is a conflict:
(1) The chief clerk shall
(a) withhold the filing and release of the opinion which is in conflict with the prior opinion.
(b) immediately submit to each judge of the Court of Appeals copies of the two opinions and the briefs and internal court documents in both appeals.
(2) Each judge of the Court of Appeals shall, within 21 days of the date of the clerk's submission, furnish in writing to the Chief Judge a vote to follow one of the two opinions. Each judge shall vote unless disqualified by law or court rule. No judge sitting by assignment may participate in the vote.
(3) The Chief Judge shall sign and furnish to the Chief Clerk a list of the votes of all of the judges.
(4) If at least ten judges of the Court of Appeals vote to follow the second opinion, the Chief Clerk shall file it together with the votes of the individual judges and release the opinion to the parties. If at least ten judges of the Court of Appeals vote to follow the prior opinion, the panel which wrote the opinion in conflict with it shall revise the holding of their opinion to conform with the holding of the prior opinion. Thereafter, the second opinion and the votes of the individual judges shall be published by the state reporter.
(5) Thereafter the holding of the opinion receiving at least ten votes shall be binding precedent on all panels of the Court of Appeals and on all lower courts until changed by the Supreme Court.
Votes cast by the individual judges are as follows: For the Miller v C A Muer Corp opinion, Judges DANHOF, T.M. BURNS, ALLEN, D.E. HOLBROOK, JR., KELLY, MAHER, CYNAR, MacKENZIE, WAHLS and HOOD. For the Lowry v Sinai Hospital opinion, Judges R.B. BURNS, J.H. GILLIS, V.J. BRENNAN, BRONSON, WALSH, BEASLEY and GRIBBS. Judge SHEPHERD did not participate because his appointment to the Court occurred subsequent to the submission.
Reversed and remanded to the trial court for further proceedings.
H.E. DEMING, J., concurred.
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).