Michigan Supreme Court Holds That Friends of Co-Workers Who Complain of Discrimination Are Protected by Anti-Retaliation Laws

In a unanimous decision, the Michigan Supreme Court has determined that Michigan civil rights laws protect employees from retaliation caused by their friendships with co-workers who complained about discrimination in the workplace. In Miller v. Department of Corrections, issued on May 10, 2024, the Court held that associational claims are covered by the Elliott-Larsen Civil Rights Act (ELCRA). In the case, Richard Miller and Brent Whitman, two former Michigan Department of Corrections (MDOC) employees, alleged that they were fired after being involved in some internal investigations focused on their supervisor, who had complained to management about harassment his wife was experiencing at MDOC. Miller and Whitman claimed that they had been falsely accused of wrongdoing and fired in MDOC’s effort to retaliate against their supervisor and his wife. Miller and Whitman had not themselves complained of discrimination.

Under the ELCRA, discrimination based on protected classes, such as age, sex, religion, and disability, is prohibited. The law also prohibits an employer from retaliating or discriminating against an employee who has complained about, reported, or opposed a violation of the anti-discrimination provisions of ELCRA. Opposition can include filing a complaint, participating in an investigation, or other similar acts. The question in Miller was whether the Act’s anti-retaliation provision extended to employees who did not themselves complain about, report or oppose discrimination, but who were known to be friends with employees who did engage in that protected activity.

Miller and Whitman’s claims were allowed by the trial court, but rejected by the Michigan Court of Appeals, which held that ELCRA required a third-party claimant to have actually aided or encouraged a co-worker who was participating in protected activity. The Supreme Court reversed, holding that a claim can exist even when the employee claiming retaliation or discrimination is not the person who opposed an ELCRA violation, because ELCRA only requires that the plaintiff suffer an adverse employment action and that a causal connection exists between that action and a protected act. In other words, the protected act does not have to be taken by the person filing suit – it is enough that someone else engaged in that protected activity if the plaintiff can show, for example, she was fired because she was friends with the co-worker who engaged in the protected activity. The required causal link in such cases, if proven, is the plaintiff’s close relationship with the co-worker and the employer’s desire to punish the complaining employee by firing her friends.

While this is a new application of Michigan’s civil rights act, the U.S. Supreme Court had previously reached the same conclusion under federal law in its 2011 decision in Thompson v. North American Stainless, which allowed indirect retaliation claims under Title VII.

This decision offers yet another caution to employers facing complaints or allegations regarding discrimination in the workplace. Whether the complaints are unfounded or not, retaliating against the complaining employee – or co-workers friendly with or related to that employee – can present its own risks.

Nemeth Bonnette Brouwer PC will continue to monitor all developments in ELCRA retaliation and discrimination cases. In the meantime, feel free to contact any of the attorneys at the firm with your questions.