KHVPF Insight
Michigan Supreme Court recognizes associational retaliation claims under ELCRA
In Miller v. Michigan Department of Corrections, the Michigan Supreme Court addressed whether Michigan’s Elliott-Larsen Civil Rights Act recognizes so- called “third-party” or “associational” retaliation claims. Miller involved two former correctional officers who claimed that they were fired not because of anything they did, but because they were close friends with another co-worker who had complained about racial discrimination in the workplace. The fired employees alleged, in effect, that the Department of Corrections terminated them in order to punish the complainant. The plaintiffs sued the Department for the resulting damages they suffered, claiming retaliation under ELCRA.
In a unanimous decision, the Court held that the plaintiffs stated a claim under ELCRA. The Court acknowledged at the outset that, “[i]ntuitively, the notion of ‘retaliation’ suggests that a plaintiff must allege retaliation by a defendant against themselves.” But, the Court explained, “that is not how these statutes read.” All ELCRA requires is: (1) protected activity, (2) an adverse action, and (3) a causal connection between the protected activity and the adverse action. If all three elements are present, a “violation” of ELCRA is established. The Court held these elements had been met – the complainant engaged in protected activity, an adverse action was taken against the plaintiffs, and the two were connected.
The Court then turned to ELCRA’s remedy provision to determine whether someone other than the person retaliated against could recover for a violation of ELCRA. That provision states that “[a] person alleging a violation of [ELCRA] may bring a civil action” for “damages for injury or loss caused by each violation of this act, including reasonable attorney’s fees.” The Court held that this provision “does not limit recovery for damages to the person who was directly retaliated against.” Thus, because the plaintiffs had been damaged by the Department’s ELCRA violation, they could recover the damages they suffered.
The Court’s decision will have significant implications for Michigan employers. Employers must recognize that their actions can be scrutinized not only for direct retaliation but also for any adverse impact on those associated with employees who have opposed discriminatory practices. Unfortunately, the Court provided little guidance on the critical question that every employer (and their counsel) confronts in making employment decisions: if I take this employment action, will it subject the company to a potential liability under civil rights laws? More specifically, is there a close enough “association” between the affected employee and the protected-activity employee to state a plausible claim for associational retaliation?
The Court explained that “most familial relationships” will suffice, but “familial or romantic relationships are not the only types of relationships that are sufficiently close to warrant protection under anti-retaliation statutes.” According to the Court, what matters is not “[t]he nature of the relationship,” but whether there is a “causal link between the adverse action and the protected act.” “The more remote a relationship, the more difficult it will be to prove a sufficient causal link between the adverse action and the protected act.”
Only time will tell what kinds of associations are enough to create a question of fact for the jury in retaliation cases. In the meantime, employers should review and potentially revise training programs to ensure that all managerial staff and decision makers can identify and prevent both direct and third-party retaliation. And they should consult employment counsel to assess the risk of “associational retaliation” liability associated with important employment decisions.