576 N.W.2d 640
No. 108685.January 4, 1998.Supreme Court of Michigan.
Decided April 10, 1998.
Summary Dispositions April 10, 1998:
The cause having been briefed and orally argued, the judgment of the Court of Appeals is reversed and the jury verdict for the plaintiff is reinstated. The questions presented were factual and properly for the jury to determine. The instructions and verdict form did not advise the jury that the employer had a legal duty to accommodate a handicapped individual by reassignment to another position. Under these specific circumstances, the legal question whether the employer had a duty to reassign a handicapped individual to a vacant position for which he was qualified need not be addressed at this time.
Leave to appeal was granted at 456 Mich. 869.
Court of Appeals No. 177758.
WEAVER, J.
I dissent from the order and would affirm the decision of the Court of Appeals. I believe that the jury instructions incorrectly stated plaintiff’s prima facie case and implied that an employer’s duty to accommodate under the Handicappers’ Civil Rights Act included the duty to transfer a handicapped employee to another position.
The instructions stated:
Plaintiff has the burden of proving that
A. Plaintiff had a handicap.
B. Plaintiff’s handicap prevented him from performing the production supervisor’s job.
C. Plaintiff requested accommodation to be assigned to a vacant position.
D. Plaintiff was qualified for and able to perform another vacant job position.
E. The defendant’s failure to assign the plaintiff to the vacant job position was not a business judgment but was a pretext for handicap discrimination.
Your verdict will be for the plaintiff if you find that the plaintiff had a handicap, that the handicap prevented him from performing the production supervisor’s job, that the plaintiff requested an
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accommodation to be assigned to a vacant position, that the plaintiff was qualified for and able to perform another vacant job position, and that the defendant’s failure to assign plaintiff to the vacant job position was not a business judgment but was a pretext for handicap discrimination.
However, plaintiff’s prima facie case under the HCRA requires proof: (1) of a handicap; (2) that the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job; and, (3) that the plaintiff has been discriminated against in a way set forth in the HCRA. Merillat v. Michigan State Univ, 207 Mich. App. 240, 245 (1994). The jury instructions in this case clearly imply that plaintiff is entitled to accommodation even though his condition rendered him unable to perform the duties of production supervisor. This is incorrect. Handicap is defined by the HCRA in pertinent part as:
(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:
(A) . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A).]
The definition of handicap expressly states that the condition must be “unrelated to the individual’s ability to perform the duties of a particular job. . . .” Id.
Further, the jury instructions imply that defendant was required to accommodate plaintiff in the form of a job transfer. However, the HCRA only expressly recognizes the following types of accommodation: (1) purchasing equipment and devices, (2) reasonable routine maintenance or repair of such equipment and devices, (3) hiring readers and interpreters, and (4) restructuring jobs and altering schedules for minor and infrequent duties. MCL 37.1210(2)-(5), (7)-(11), (14)-(15); MSA 3.550(210)(2)-(5), (7)-(11), (14)-(15). The specificity of § 210 regarding accommodation does not support imposing a duty to accommodate by job transfer.
Therefore, I dissent from the order and would instead affirm the Court of Appeals remand for a new trial.
TAYLOR, J. I concur with Justice WEAVER.
Reconsideration denied June 16, 1998.
WEAVER and TAYLOR, JJ. We would grant reconsideration.
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