The principal question is whether the exclusive remedy provision of the workers' compensation act
We further hold that an employee's spouse does not have a derivative cause of action for loss of consortium as a result of an employer's violation of the FEPA.
Irene M. Boscaglia worked for Michigan Bell Telephone Company from September 24, 1953, until August 11, 1977. By October 1, 1972, she had been promoted to the position of supply foreman. In May, 1976, Boscaglia refused to accept a lateral transfer to Detroit, and in June, 1976, she was demoted. Boscaglia alleges that her demotion was the result of sex discrimination.
Various employment problems allegedly arose after her demotion. On August 7, 1977, a male supervisor accused Boscaglia of coming to work late. Boscaglia broke down completely, leaving in tears and ultimately receiving psychiatric treatment. She has not returned to work for Michigan Bell.
On April 26, 1978, Boscaglia filed an action against Michigan Bell and three supervisors alleging
Frederick Pacheco, Jr., was hired as a security guard by General Motors Corporation on November 3, 1953. The complaint, which names General Motors and two supervisors as defendants, alleges various acts of discrimination, during 1974 and 1975, against Pacheco because of his Spanish-American heritage, including a suspension and
The parties have stipulated that from November 29, 1974 through April 11, 1975, and again from July 8, 1975 through October 13, 1975, Pacheco was on approved medical disability leave for which he was paid sickness and accident benefits by a third-party insurance carrier under the General Motors Group Insurance Plan.
The exclusive remedy provision of the workers' compensation act provides that "the right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer."
The FEPA, enacted in 1955, declared that the opportunity to obtain employment without discrimination because of race, color, religion, national origin, or ancestry is a civil right,
The civil rights act, enacted in 1976, prohibits an employer from discriminating against a person on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status.
The evils at which the civil rights acts are aimed are different from those at which the workers' compensation act is directed. The workers' compensation act guards against the victims of industrial injuries being "turned away empty handed" and "unrecompensed" as a result of common-law tort doctrines such as contributory negligence and the fellow-servant rule. Crilly v Ballou, 353 Mich. 303,
In Mathis v Interstate Motor Freight System, 408 Mich. 164, 179; 289 N.W.2d 708 (1980), the Court noted that "[t]he Worker's Disability Compensation Act (WDCA) and the no-fault insurance act are complete and self-contained legislative schemes addressing discrete problems. Neither act refers expressly to the other." In Perez v State Farm Mutual Automobile Ins Co, 418 Mich. 634, 650; 344 N.W.2d 773 (1984), the plurality opinion added that "neither [statutory] scheme should be permitted to frustrate the purposes and objectives of the other [statutory] scheme." Just as the Court in Mathis, supra, p 183, held that an employee is not barred by the exclusive remedy provision from obtaining no-fault benefits for injuries sustained while occupying a motor vehicle owned by his employer, so too an employee is not barred by the exclusive remedy provision from invoking the civil rights acts to recover for injuries resulting from discrimination by his employer.
The question whether physical, mental, and emotional injuries are compensable under the FEPA or the civil rights act has not been briefed or argued, and hence we intimate no opinion in that regard. We think it self-evident, however, assuming the Legislature in enacting the civil rights acts intended to provide compensation for physical, mental, or emotional injury resulting from discrimination, that it did not intend that that objective would be defeated by the bar of the exclusive remedy provision of the workers' compensation act.
Defendants in Pacheco argue that even if the exclusive remedy provision does not bar the express "direct access" cause of action statutorily created by the civil rights act, it should nevertheless apply to a civil action for violation of the FEPA recognized in Pompey.
We read Pompey as holding that the Legislature intended a cumulative judicial remedy for an employer's violation of the FEPA. "[T]he question whether a statute creates a private right of action is ultimately `one of [legislative] intent, not one of whether this Court thinks that it can improve upon the statutory scheme that [the Legislature] enacted into law * * *.'" Universities Research
We reject the distinction drawn in Stimson v Bell Telephone Co, 77 Mich.App. 361; 258 N.W.2d 227 (1977),
The Stimson distinction would yield anomalous results. Where employment discrimination causes injuries that are not so severe as to culminate in disability, the injured employee would be permitted to sue his employer in tort and recover full damages; however, where the injuries suffered are so severe as to culminate in disability, the injured employee would be restricted to the recovery of workers' compensation benefits.
Defendants in Pacheco contend that the applicability of the exclusive remedy provision to any particular employment discrimination action is a question that, as a jurisdictional matter, can only be answered by the Bureau of Workers' Disability Compensation. The Michigan Constitution, however, provides that "[t]he circuit court shall have original jurisdiction in all matters not prohibited by law * * *."
"[P]rior to the passing of [the FEPA] in 1955, there was in Michigan no recognized legal remedy for acts of discrimination * * * in private employment." Pompey v General Motors Corp, supra, p 552. The common law did not provide a remedy either to an employee who claimed to be a victim of employment discrimination or to an employee's spouse who claimed to have suffered injury to the marital relationship as a result of the discrimination against the employee.
In 1955, the FEPA declared the right to be free from discrimination in private employment to be a civil right entitled to protection of the law and provided, for the first time, a remedy to an employee who claimed to be a victim of discrimination.
Section 7(b) of the FEPA provided that "[a]ny individual claiming to be aggrieved by an alleged unlawful employment practice may * * * make, sign and file with the board * * * a verified complaint in writing * * *" (emphasis added).
"If, upon the preponderance of the evidence on the record considered as a whole, the [fair employment practices] commission shall determine that the respondent has engaged in or is engaging in any unfair employment practice, the commission shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and to take such further affirmative or other action as will effectuate the purposes of this act, including but not limited to, hiring, reinstatement or upgrading of employees with or without back pay, or admission or restoration to union membership, including a requirement for reports of the manner of compliance."
We agree with the conclusions of New York courts that an employee's spouse is not a person "aggrieved" within the meaning of the civil rights act. Hart v Sullivan, 84 A.D.2d 865, 866; 445 N.Y.S.2d 40 (1981), aff'd 55 N.Y.2d 1011; 449 N.Y.S.2d 481; 434 N.E.2d 717
Cynthia Pacheco argues that she possessed a preexisting common-law loss of consortium action that was triggered when the Legislature granted statutory protection to the right to be free from employment discrimination. Our attention has been directed to Washington v Jones, 386 Mich. 466; 192 N.W.2d 234 (1971). In that case, plaintiff brought an action for loss of consortium against the owner and driver of the automobile in which her husband was riding as a guest when he was injured. The action alleged gross negligence because the Civil Liability Act then in force provided that a guest could only maintain an action against the owner or operator of the vehicle in which he was riding if the owner or operator committed "gross negligence or wilful and wanton misconduct."
The question once again is one of legislative intent. Absent a legislative intent to provide such a derivative cause of action, the spouse of a person subjected to discrimination does not have a right of recovery.
In Boscaglia, the cause is remanded to the trial court for consideration of Boscaglia's motion to reinstate her claims for emotional injuries and future wages,
WILLIAMS, C.J., and KAVANAGH, RYAN, BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with LEVIN, J.
"[T]hose damages which allegedly resulted from the alleged unlawful discrimination by defendants, particularly those resulting from humiliation, embarrassment, loss of consortium, and lost wages, are compensable in circuit court and should not be barred by the exclusivity clause of [the workers' compensation act]."
Contending that this holding was relevant to her case, Boscaglia filed a motion to reinstate her claims for emotional injury and future wages. This motion was filed on the day of trial, July 7, 1982.
The circuit judge declined to entertain Boscaglia's motion to reinstate, and the Court of Appeals denied leave to appeal. This Court granted her application for leave to appeal. 417 Mich. 888 (1983).
In the same complaint, his wife Cynthia sought to recover for various physical and mental injuries and loss of consortium that she allegedly suffered as a result of the discrimination against her husband.
Defendants filed a motion for summary judgment, arguing: 1) that the exclusive remedy provision of the workers' compensation act denied the circuit court jurisdiction over Pacheco's claim for personal injuries (defendants' motion for summary judgment did not challenge the jurisdiction of the circuit court to consider Pacheco's separate claim for wages lost as a result of the allegedly discriminatory suspension and demotion), and 2) that Cynthia Pacheco lacked standing to sue under the FEPA. The circuit judge denied defendants' motion, but certified the two issues as controlling questions of law for interlocutory appeal.
On September 21, 1981, the Court of Appeals affirmed the ruling of the trial court that the exclusive remedy provision of the workers' compensation act did not bar the Pachecos' suit:
"To the extent Mr. Pacheco suffered periods of physical disability, the WDCA is his exclusive remedy. * * * It would appear, however, that this question is moot since the stipulation of facts indicate that during his periods of medical disability Mr. Pacheco was paid benefits by a third-party insurance carrier under the General Motors group insurance plan. Further, we are of the opinion that those damages which allegedly resulted from the alleged unlawful discrimination by defendants, particularly those resulting from humiliation, embarrassment, loss of consortium, and lost wages, are compensable in circuit court and should not be barred by the exclusivity clause of WDCA. This is true not only of those injuries occurring prior to plaintiff's disability but also as to those occurring after his disability." Pacheco v Clifton, supra, pp 574-575 (emphasis in the original).
The Court of Appeals reversed the trial court's ruling with respect to Mrs. Pacheco's claim, holding that "the Legislature did not intend that the spouse of a victim of discrimination has standing to sue under the statute in question [the FEPA] for damages resulting to her from that discrimination." Id., p 577. This Court granted leave to appeal. 417 Mich. 888 (1983).
"No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation." Const 1963, art 1, § 2.
Absent legislative implementation, however, this constitutional provision does not apply to private discrimination. Pompey v General Motors Corp, 385 Mich. 537, 559, fn 20; 189 N.W.2d 243 (1971). See also Cramton, The Powers of the Michigan Civil Rights Commission, 63 Mich L Rev. 5, 30 (1964).
"[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes."
Title VII does not provide for recovery of future lost wages, but rather provides for an award of reinstatement with back pay, 42 USC 2000e-5(g), following the model of the National Labor Relations Act, 29 USC 160(c). See Albemarle Paper Co v Moody, 422 U.S. 405, 419, and fn 11; 95 S.Ct. 2362; 45 L Ed 2d 280 (1975).
We note that the corresponding FEPA provision was also modeled on the NLRA. Compare 1955 PA 251, § 7(h) with 29 USC 160(c).
"If * * * the [fair employment practices] commission shall determine that the respondent has engaged in or is engaging in any unfair employment practice, the commission shall * * * cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and to take such further affirmative or other action as will effectuate the purposes of this act * * *." MCL 423.307(h); MSA 17.458(7)(h).
Although this Court has not decisionally addressed the question, courts in other jurisdictions are divided over whether, under similar statutory language, an administrative agency may award damages for physical, mental, or emotional injuries suffered as a result of employment discrimination. Compare Kansas Comm on Civil Rights v Service Envelope Co, Inc, 233 Kan. 20; 660 P.2d 549 (1983), Bournewood Hospital, Inc v Massachusetts Comm Against Discrimination, 371 Mass. 303; 358 N.E.2d 235 (1976), Castellano v Linden Bd of Ed, 79 N.J. 407; 400 A.2d 1182 (1979), School Dist No 1 v Nilsen, 271 Or. 461; 534 P.2d 1135 (1975), with Gutwein v Easton Publishing Co, 272 Md. 563; 325 A.2d 740 (1974), E D Swett, Inc v New Hampshire Comm for Human Rights, 470 A.2d 921 (NH, 1983), School Dist of Twp of Millcreek v Commonwealth Human Relations Comm, 28 Pa.Commw. 255; 368 A.2d 901 (1977), vacated on other grounds 474 Pa. 146; 377 A.2d 156 (1977), Murphy v Industrial Comm, 37 Wis.2d 704; 155 N.W.2d 545 (1968), on reh 37 Wis.2d 712; 157 N.W.2d 568 (1968).
The Court of Appeals seems to have based its conclusion on a misreading of the argument in 2A Larson, Workmen's Compensation Law, §§ 68.30-68.34, pp 13-39 to 13-81. In his discussion of nonphysical intentional torts committed against an employee (e.g., employment discrimination, false imprisonment, intentional infliction of emotional distress), Professor Larson notes that when no physical injury has been suffered, and thus "[w]hen no compensation remedy is available, these tort actions fall squarely within the broad class of cases * * * which do not come within the fundamental coverage pattern of the Act at all * * *." Id., § 68.30, p 13-40.
Yet he adds:
"[T]he matter is complicated by the fact that occasionally a tort of this type will become intertwined with a compensable injury in some way. The question then becomes a closer one. It is not whether the tort action will lie when no workmen's compensation claim is possible, but whether a tort action will lie when a compensation claim is also possible, and indeed may have been filed and granted." Id.
With respect to this more "complicated" situation of a nonphysical intentional tort resulting in a physical injury, Professor Larson concludes:
"If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a make-weight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort." Id., § 68.34(a), pp 13-62 to 13-63.
Thus the Court in Stimson transformed Professor Larson's distinction between injuries that are physical (exclusive remedy provision applies) and those that are not physical (exclusive remedy provision does not apply) into a distinction between injuries — physical or not physical — that are disabling (exclusive remedy provision applies) and those that are not disabling (exclusive remedy provision presumably does not apply).
Since Professor Larson's argument focused on nonphysical intentional torts generally, in most of which the source of the right involved is the common law rather than statute, his discussion is not applicable to employment discrimination cases in which the source of the right to be free from employment discrimination is statutory.
We express no view regarding the merits of Professor Larson's thesis as applied to other nonphysical intentional torts. See, e.g., Moore v Federal Department Stores, Inc, 33 Mich.App. 556; 190 N.W.2d 262 (1971) (false imprisonment); Milton v County of Oakland, 50 Mich.App. 279; 213 N.W.2d 250 (1973) (wrongful discharge); Broaddus v Ferndale Fastener Div, Ring Screw Works, 84 Mich.App. 593; 269 N.W.2d 689 (1978) (intentional infliction of emotional distress); Kissinger v Mannor, 92 Mich.App. 572; 285 N.W.2d 214 (1979) (intentional infliction of mental stress).
Szydlowski did not concern an independent statutory right such as the right to be free from employment discrimination. Absent such an independent statutory right, the applicability of the exclusive remedy provision depends in part on the resolution of the course of employment issue, and thus the Court in Szydlowski held that the determination of that issue was within the exclusive jurisdiction of the bureau of workers' compensation. Our holding in the instant case that the exclusive remedy provision does not bar an employment discrimination action seeking recovery for injuries suffered as a result of an employer's violation of the independent statutory right granted by the FEPA or the civil rights act renders the Szydlowski decision, and the rationale therefor, inapplicable to the present case.
Since Boscaglia raises the exclusive remedy issue under both the FEPA and the civil rights act, we have decided that issue with respect to both acts. However, since the loss of consortium issue is only raised in Pacheco, and since Pacheco raises the issue only under the FEPA, we limit our holding on the loss of consortium issue to the FEPA. We reserve judgment as to whether an employee's spouse may maintain an action for loss of consortium under the civil rights act until that issue is before us.