Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  May 4, 2018                                                                      Stephen J. Markman,
                                                                                              Chief Justice

  155895-6                                                                               Brian K. Zahra
                                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                        Kurtis T. Wilder
  KAREN HRAPKIEWICZ,                                                              Elizabeth T. Clement,
           Plaintiff-Appellee,                                                                     Justices

  v                                                      SC: 155895-6
                                                         COA: 328215; 330189
                                                         Wayne CC: 11-015709-CL
  WAYNE STATE UNIVERSITY
  BOARD OF GOVERNORS,
           Defendant-Appellant.

  ____________________________________/

        On order of the Court, the application for leave to appeal the March 9, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARKMAN, C.J. (dissenting).

         I respectfully dissent. I would grant leave to appeal to further consider
  defendant’s argument concerning the proper causation standard for discrimination cases
  under the Civil Rights Act (CRA), MCL 37.2101 et seq.

          MCL 37.2202(1)(a) of the CRA prohibits an employer from discriminating
  “against an individual . . . because of religion, race, color, national origin, age, sex,
  height, weight, or marital status.” (Emphasis added.) This Court has been inconsistent in
  its interpretations of this standard. For instance, in Hazle v Ford Motor Co, 464 Mich
  456 (2001), we explained that under MCL 37.2202(1)(a), “the ultimate factual inquiry
  made by the jury” is “whether consideration of a protected characteristic was a
  motivating factor, namely, whether it made a difference in the contested employment
  decision.” Id. at 466 (emphasis added). However, in Hecht v Nat’l Heritage Academies,
  Inc, 499 Mich 586 (2016), we explained that “we have interpreted the CRA to require
  ‘ “but for causation” or “causation in fact.” ’ ” Id. at 606, quoting Matras v Amoco Oil
  Co, 424 Mich 675, 682 (1986). These interpretations of the CRA are inconsistent, as
  Hecht imposes a considerably higher causation standard than Hazle.

         Defendant here sets forth the argument that the “because of” language found in
  MCL 37.2202(1)(a) requires the higher standard of “but for causation” identified in cases
  such as Hecht, not the lower standard of merely requiring “a motivating factor” identified
  in cases such as Hazle. In analogous contexts, the United States Supreme Court has
  recognized that Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.,
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“explicitly authoriz[es] discrimination claims in which an improper consideration was ‘a
motivating factor’ for an adverse employment decision,” while the Age Discrimination in
Employment Act (ADEA), 29 USC 621 et seq., “does not provide that a plaintiff may
establish discrimination by showing that age was simply a motivating factor.” Gross v
FBL Fin Servs, Inc, 557 US 167, 174 (2009). That Court explained that because the
ADEA employs the words “because of,” “[t]o establish a disparate-treatment claim under
the plain language of the ADEA . . . a plaintiff must prove that age was the ‘but-for’
cause of the employer’s adverse decision.” Id. at 176. Put simply, the Supreme Court
recognized that there is a difference between the “a motivating factor” causation standard
and the “but-for” causation standard, and because the ADEA requires “because of”
causation, it imposes the “but-for” causation standard. Gross is noteworthy because
MCL 37.2202(1)(a), as with the ADEA, employs the words “because of,” not “a
motivating factor.”

      Furthermore, the Court of Appeals for the Sixth Circuit has also recently observed
that Michigan caselaw interpreting the “because of” causation standard under MCL
37.2202(1)(a), at least in age-discrimination cases, is inconsistent with Supreme Court
caselaw by imposing the lower “motivating factor” standard of causation:

              The ADEA prohibits an employer from discharging an employee
       “because of such individual’s age.” Similarly, the [CRA] provides that an
       employer shall not discharge an employee “because of” age. Given this
       similar language, we have traditionally analyzed ADEA and [CRA] claims
       using the same causation standard. More recently, however, the Supreme
       Court has clarified that an ADEA plaintiff must demonstrate that his “age
       was the ‘but-for’ cause of the challenged adverse employment action.”
       Michigan courts, on the other hand, have held that [a CRA] plaintiff can
       prove discrimination if his age was merely a “motivating,” or “determining
       factor in the employer’s decision.” [Lewis v Detroit, 702 Fed App’x 274,
       278 (CA 6, 2017) (citations omitted).]

I recognize, of course, that in cases concerning interpretation of the CRA, we are not
bound to follow federal caselaw interpreting a federal antidiscrimination statute, and that
is as it should be. Haynie v Dep’t of State Police, 468 Mich 302, 319 (2003) (“[W]e
disagree with the dissent’s assertion that this Court is somehow bound to interpret
Michigan’s Civil Rights Act in accordance with the federal courts’ interpretation of the
federal civil rights act . . . . [T]he Michigan Legislature was clearly not bound by the
federal civil rights act.”). Nonetheless, a “federal precedent may often be useful as
guidance in this Court’s interpretation of laws with federal analogues . . . .” Garg v
Macomb Co Community Mental Health Servs, 472 Mich 263, 283 (2005). Given that the
United States Supreme Court has interpreted the “because of” language in the ADEA as
imposing “but-for” causation, Gross, 557 US at 176, I would grant leave to appeal to
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address whether the “because of” language in MCL 37.2202(1)(a) should be interpreted
in a similar manner.

      ZAHRA, J., joins the statement of MARKMAN, C.J.

      BERNSTEIN, J., did not participate.

      WILDER, J., did not participate because he was on the Court of Appeals panel.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        May 4, 2018
       a0501
                                                                            Clerk
