Elected official can sue under ELCRA

By Correy E. Stephenson

An elected member of the city council was an employee of the city and pled a viable claim under the Elliott-Larsen Civil Rights Act for allegations that the city affected or controlled a condition of his employment, a panel of the Michigan Court of Appeals has held, reversing summary disposition in favor of the city.

A former elected member of the city council of the City of Wayne, Anthony Miller served at least two terms and was paid a salary before resigning from the position in June 2021.

The parties agreed that in 2018 the city hired an attorney to conduct an assessment of the city’s work environment, although the city referred to a single incident, while Miller characterized the subject of the investigation as numerous complaints.

Miller was interviewed by the attorney and alleged that he revealed instances of discrimination and hostility toward himself and other employees based on sexual orientation/non-conforming gender.

The investigating attorney prepared a report containing findings, opinions and recommendations.

In 2022, the city filed suit against Miller, alleging that he violated his fiduciary duties by providing unredacted copies of the report a confidential document to the Michigan State Police and possibly other government agencies.

Miller responded with a counterclaim against the city asserting claims under the ELCRA.

Specifically, he claimed that the city had discriminated against him on the basis of his sexual orientation and gender, had created a hostile work environment on the basis of his sexual orientation and had retaliated against him for reporting instances of discrimination based on his sexual orientation and gender.

The city moved for summary disposition of Miller’s counterclaim, arguing that Miller, as an elected public official, was not an “employee” and there was no “employment relationship” between the parties.

Reversing the trial court, Judge Mark T. Boonstra said the city, as a municipal corporation, is a “person” under the ELCRA and an “employer” because it has one or more employees.

“[A]lthough the City disputes whether it was Miller’s employer, its own pleadings establish that it is an employer,” the judge said.

The plain language of the ELCRA does not limit employment discrimination claims to employees, Boonstra explained, and the Michigan Supreme Court held in McClements v. Ford Motor Company that “a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker’s employment.”

“Applying McClements to this case, we conclude that irrespective of whether Miller, as an elected official, was an ‘employee’ of the City, he certainly had employment and alleged that the City affected or controlled a condition of his employment,” Boonstra wrote.

The city directed the court to Title VII , arguing that the Michigan Supreme Court has encouraged using federal precedent interpreting Title VII as a guide for interpreting the ELCRA.

But Title VII explicitly exempts elected officials and other persons from the definition of “employee,” Boonstra said.

“Although we have been encouraged to take ‘guidance’ from federal interpretations of Title VII, we do not believe that we are required to read extensive language from Title VII into the ELCRA, language that the Legislature did not see fit to include,” the judge wrote.

Boonstra also found that Miller’s retaliation claim survived, as did his allegations of a hostile work environment, insofar as they related to his claims of employment discrimination and retaliation.

Judges Michael F. Gadola and Stephen L. Borrello joined Boonstra’s opinion in City of Wayne v. Miller ( MiLW 07-108070 , 11 pages).

The matter returns to Wayne County for further proceedings.

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