GovLaw - February 2017 Edition    


From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors
John J. Gillooly  & Jami E. Leach

Garan Lucow Miller, P.C.  1155 Brewery Park Blvd, Detroit, Michigan 48207 313.446.1530




By Frances G. Murphy

On December 22, 2016, the Michigan Court of Appeals issued an unpublished opinion, Martin v Langford, DDS, Dec. 22, 2016 (Docket No. 328815), in which the court reversed the trial court’s grant of summary disposition in favor of the defendant where the plaintiff claimed she was discriminated against based on her religion of Islam under the Elliott Larson Civil Rights Act (ELCRA).  This case is helpful for employers to understand what types of remarks are impermissible in the hiring and firing process.  In this case, the plaintiff was an acquaintance of the employer, and the plaintiff had converted to Islam and wore a hijab.  After approximately 3 months of employment, the employer terminated the plaintiff because the plaintiff “did not culturally fit in the environment of the office,” the “plaintiff was unsympathetic . . . maybe . . . due to her religion,” and that “Islam is unsympathetic.”  The trial court granted the defendant’s motion for summary disposition.  On appeal, the Court of Appeals found that the trial court erred because it did not consider the direct evidence of discrimination the plaintiff presented.

Employment discrimination may be proven by circumstantial evidence or direct evidence.  This case dealt with direct evidence.  Direct evidence is evidence “that proves impermissible discriminatory bias without additional inference or presumption.”  Stray or isolated remarks are not evidence of discrimination, and there are 4 factors to evaluate in deciding whether remarks are direct evidence of discrimination or stray remarks.  These factors are:

  1. Were the disputed remarks made by the decision-maker or by an agent of the employer uninvolved in the challenged decision?
  2. Were the disputed remarks isolated or part of a pattern of biased comments?
  3. Were the disputed remarks made close in time or remote from the challenged decision?
  4. Were the disputed remarks ambiguous or clearly reflective of discriminatory bias?

The Court of Appeals found that, in applying these factors, 3 of them strongly weighed in the plaintiff’s favor.  (1) the employer and decision-maker for the office made the remarks;  (2)  the discriminatory remarks were isolated, and so weighed against a finding of discrimination;  (3) the disputed remarks were made at the time of the plaintiff’s termination; and (4) the remarks were clearly reflective of discriminatory bias.  Accordingly, when viewing the evidence in the light most favorable to plaintiff (which is the standard of review to be used on a summary disposition motion), the court held that there was a genuine issue of material fact regarding whether the employer discriminated against the plaintiff based on her religion, and reversed the trial court’s opinion.

In conclusion, when employers decide to terminate their employees, it is important to consider the reason for the termination and how to properly explain that reason to the employee if necessary.  As this decision demonstrates, an employer telling its employee that she does not “culturally fit in the environment” and that both she and her religion were “unsympathetic” are not appropriate reasons for terminating and employee.




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