Dalton and Tomich white logo
Dalton and Tomich white logo

Michigan Supreme Court Expands Retaliation Protection to Cover Third Parties

The Michigan Supreme Court recently expanded the scope of retaliation protection under Michigan law. The court unanimously ruled in Miller v. Department of Corrections that employees who face adverse actions due to their association with co-workers who have engaged in protected activities, such as reporting discrimination, can now bring third-party retaliation claims. 

This ruling has important implications for Michigan employers, as it underscores the importance of handling discrimination complaints with care and diligence while also avoiding any actions that could be perceived as retaliatory against complainants and their associates. It is crucial for Michigan businesses to understand key aspects of the decision and its potential impact on their policies, practices, and overall approach to maintaining a fair and inclusive workplace while mitigating risks.

The Backstory

Richard Miller and Brent Whitman, former employees of the Michigan Department of Corrections (MDOC), filed a lawsuit alleging that their termination was a result of retaliation against their supervisor and his wife, who had previously complained about harassment within the department. Miller and Whitman claimed that they were subjected to false accusations and wrongful termination as part of MDOC’s effort to retaliate against the couple, despite not having personally engaged in any protected activities themselves. This raised the question of whether Michigan’s Elliott-Larsen Civil Rights Act (ELCRA)—which applies to businesses with one or more employees—extends protection to employees who faced retaliation due to their association with others who had exercised their rights under the law.

The trial court denied MDOC’s motion to dismiss, finding the plaintiffs’ argument compelling enough to proceed. However, the Michigan Court of Appeals reversed this decision, asserting that the ELCRA did not explicitly authorize third-party retaliation claims like those brought by Miller and Whitman. This set the stage for the Michigan Supreme Court to provide clarity on the matter and determine the extent of retaliation protection under state law.

Michigan Supreme Court’s Decision

In a unanimous 9-0 decision, the Michigan Supreme Court reversed the Court of Appeals’ ruling and held that the ELCRA does indeed provide a cause of action for associational or “third-party” retaliation claims. Justice Megan K. Cavanagh, writing for the court, emphasized the broad scope of protection afforded by the law.

The decision hinged on several key points. First, Justice Cavanagh noted that MCL 37.2701(a) of the ELCRA prohibits retaliation without making any distinction between direct and third-party claims. This means that an employee can bring a retaliation claim even if they were not the one who engaged in the protected activity, as long as they can establish a causal link between the adverse action they suffered and the protected activity undertaken by another individual.

Furthermore, the court found that Miller and Whitman had sufficiently pleaded a third-party retaliation claim in their complaint. By alleging that they had a close relationship with their supervisor, who had engaged in protected activity, and that MDOC’s actions against them were part of an effort to retaliate against the supervisor and his wife, the plaintiffs met the necessary criteria to proceed with their case under the ELCRA.

In short, the decision makes clear that Michigan employers cannot escape liability by targeting associates of those who exercise their rights against discrimination.

Implications for Michigan Employers

The decision has important  implications for Michigan employers. With the court’s recognition of third-party retaliation claims under the ELCRA, the pool of potential claimants has significantly expanded. This means that employers now face an increased risk of retaliation claims not only from employees who directly engage in protected activities but also from those who have close associations with them.

As a result, employers should double-down on their efforts to ensure that they have robust policies and procedures in place to address such complaints promptly, thoroughly, and impartially. They must also take steps to prevent any actions that could be construed as retaliatory, not only against the complainant but also against their friends, family members, or close associates within the workplace.

Some specific steps employers should consider include:

  • Policies and procedures: Review and update their existing policies to explicitly prohibit retaliation against employees who engage in protected activities, as well as those who have close associations with them. These policies should clearly define what constitutes protected activity and retaliation, outline the complaint process, and emphasize the company’s commitment to maintaining a discrimination-free workplace.
  • Training: Provide comprehensive training to managers on how to handle discrimination complaints, conduct investigations, and avoid any actions that could be perceived as retaliatory. Managers should be instructed to treat all complaints seriously, maintain confidentiality, and ensure that complainants and their associates are not subjected to any adverse treatment as a result of their involvement in the complaint process.
  • Documentation: Diligently document the legitimate, non-discriminatory reasons for any adverse employment actions taken against employees. This documentation can serve as valuable evidence in defending against potential retaliation claims, demonstrating that the action was based on valid performance or conduct issues rather than any protected activity or association. By maintaining clear and consistent records, employers can better position themselves to respond to and defend against retaliation claims.


The decision serves as a reminder that retaliation can take many forms, and employers must be vigilant in identifying and preventing any adverse actions that may be linked to an employee’s protected activity or their association with someone who has engaged in such activity. This includes not only obvious forms of retaliation, such as termination or demotion but also more subtle actions like changes in work assignments, exclusion from meetings or events, or the creation of a hostile work environment.

By prioritizing compliance with anti-discrimination and anti-retaliation laws, and working with experienced employment law legal counsel, employers can mitigate these risks and create a more positive and productive workplace for all employees.

If you have any questions or require assistance, please contact Zana Tomich.

Attorney Advertising Disclaimer

Please note that this website may be considered attorney advertising in some states. Prior results described on this site do not guarantee similar outcomes in future cases or transactions.