CHMIELEWSKI v. XERMAC, INC
Case Details
- Citation
- 457 Mich. 593
- Judge(s)
- Brickley, Boyle, Weaver, and Taylor, JJ., concurred with Mallett, C.J.; Cavanagh, J., concurred with Kelly, J.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Michigan Supreme Court affirmed judgment for defendant employer Xermac, Inc., holding that plaintiff's liver transplant and need for antirejection medication did not constitute a 'handicap' under the Handicappers' Civil Rights Act because his condition, as it actually existed with medication, did not substantially limit any major life activity.
Excerpt
CHMIELEWSKI v XERMAC, INC Docket No. 106499. Argued January 7, 1998 (Calendar No. 15). Decided June 9, 1998. Gary P. Chmielewski brought an action in the Oakland Circuit Court under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., against his former employer, Xermac, Inc., alleging that his employment was terminated to avoid continued health insurance premium increases caused by a liver transplant and the need to take costly antirejection medication. He further alleged wrongful discharge pursuant to Touissant v Blue Cross & Blue Shield, of Michigan, 408 Mich 579 (1980). The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim because the plaintiff was an employee at will. Thereafter, he entered judgment on a jury verdict for the defendant. The Court of Appeals, Mackenzie, P.J., and J. P. O’Brien, J. (Fitzgerald, J., concurring in part and dissenting in part), affirmed, holding that the trial court did not err in refusing to instruct the jury that it should consider the plaintiff’s condition without the benefit of his antirejection medication. Nor did the trial court err in allowing evidence regarding the plaintiff’s alcoholism and the defendant’s economic condition (Docket No. 162968). The plaintiff appeals. In an opinion by Chief Justice Mallett, joined by Justices Brickley, Boyle, Weaver, and Taylor, the Supreme Court held-. Because the plain language of the Handicappers’ Civil Rights Act requires that a person actually have a determinable characteristic that substantially limits a major life activity, the trial court did not err in refusing to give the plaintiffs requested special jury instruction. Nor did the court err in admitting evidence of the plaintiff’s alcoholism and the defendant’s economic condition. 1. The Handicappers’ Civil Rights Act prohibits discrimination against persons because of handicapped status and mandates their employment to the fullest extent reasonably possible. To prove discrimination, a plaintiff must show a handicap as defined in the act, that the handicap is unrelated to the ability to perform job duties, and discrimination as delineated in the statute. To be handicapped, a person must have a determinable physical or mental characteristic that substantially limits a major life activity unrelated to the ability to perform the duties of a particular job. Handicap does not include a determinable physical or mental characteristic caused by the use of alcohol, if that physical or mental characteristic prevents a person from performing the duties of the job. 2. A person’s handicapped status should be examined as it exists presently, case by case. By limiting the act’s protection to persons having conditions that actually impose substantial limitations, the standard for determining a handicap preserves the high purpose of the act. If the burdens associated with the use of medications, prosthetic devices, or other mitigating measures are sufficiently great, the definition will be met. Courts must carefully analyze each person and must not categorically apply the definition to a given diagnosis. In this case, the plaintiff’s condition, examined as it exists with the benefit of antirejection medication, reveals no limitation of any major life activity. Thus, the plaintiff is not handicapped. Because the law requires the factfinder to assess a person’s condition as it actually exists, the trial court did not err in refusing to give the plaintiff’s requested instruction. S. The trial court also did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s financial status. The evidence of alcoholism was relevant to whether his condition met the act’s definition of handicap and to the issue of damages, and the court cautioned the jury regarding the appropriate use of the evidence. The probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence of the defendant’s financial condition tended to disprove that the plaintiff was fired because of his alleged handicap. Affirmed. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the failure of the trial court to give plaintiff’s proposed instruction resulted in substantial injustice. If a jury is to perform its function properly, it must receive correct instructions regarding the law on the effect of mitigating measures. Generally, a decision that an instruction is accurate and applicable to a case is within the sound discretion of the trial court. While a trial court has the discretion to give an instruction not included in the Standard Jury Instructions, that discretion is limited by the duty to assure that the instructions given accurately state the law. When assessing handicap status under Michigan’s Handicappers’ Civil Bights Act, a court should consider a person’s condition as it would exist without regard to medication or other mitigating measures. Factors to be considered are the nature of the impairment, its severity, its duration or expected duration, and its long-term effect. The existence of an impairment should be determined without regard to mitigating measures such as medicines. Merely because plaintiff in this case is able to control his condition with medication does not mean that the condition does not substantially limit a major life activity. The requested jury instruction simply clarified that control of a determinable physical condition with medication does not disqualify an otherwise qualified person from handicap status. By narrowing the class of persons qualified as handicapped, the majority contracts the intent of the Legislature in enacting the hcra. 216 Mich App 707; 550 NW2d 797 (1995) affirmed. Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Kerr, Russell & Weber, PL.C. (by Daniel G. Beyer and Joseph K Grekin), for the defendant. Amicus Curiae: Stewart R. Hakola, Mary J. Michalak, and Gayle C. Rosen, for Michigan Protection & Advocacy Service. Mat,lett, C.J. This Handicappers’ Civil Rights Act suit involves the question whether, in considering if a person has a condition that meets the act’s definition of “handicap,” the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual’s condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a “handicap” for purposes of coming within the act’s protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s economic condition. i FACTS AND PROCEEDINGS The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions. His alcoholism did, however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant. He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas. The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff’s employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement. The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers’ Civil Rights Act. The plaintiff’s theory at trial was that the defendant employer terminated him in violation of the hcra to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac’s president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs. Mr. Donald Shaver, Xermac’s general manager and the plaintiff’s immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff’s medical bills contributing to the company’s increased insurance costs. The defendant countered plaintiff’s hcra suit by arguing (1) that the plaintiff does not come within the hcra’s protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim handicapped status. Second, the defendant points out that the hcra excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The defendant argued that because the plaintiffs alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act’s protection. During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff’s motion. The plaintiff also sought to exclude evidence regarding the defendant’s economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant’s economic condition was relevant to disproving a required element of plaintiff’s prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap. During closing argument, the attorneys for the plaintiff and the defendant focused the jurors’ attention on whether the plaintiff, for purposes of meeting the hcra’s definition of handicap, should be viewed with or without his antirejection medication. The plaintiff’s attorney argued that the law requires that the plaintiff’s condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the hcra’s requirement of substantially limiting a major life activity. Conversely, the defense argued that the law required that the plaintiff’s condition be viewed as it presently existed, i.e., with the benefit of his medication. Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual’s handicapped status. The proposed instruction was as follows: A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care. The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff’s premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff’s dependence on medication. The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant. The Court of Appeals affirmed, rejecting the plaintiffs arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff’s alcoholism and defendant’s economic condition. We granted leave to appeal in an unlimited grant order. n BACKGROUND The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate “the employment of the handicapped to the fullest extent reasonably possible.” Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disabilities Act. Hamlin v Flint Charter Twp, 942 F Supp 1129, 1136 (ED Mich, 1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481 (ED Mich, 1996). To prove a discrimination claim under the HCRA, the plaintiff must show (1) that he is handicapped as defined in the act, (2) that the handicap is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). This case primarily involves the first element, i.e., whether the plaintiff is handicapped as defined in the act. The act, as amended in 1990, defines handicap as follows: (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) For purposes of article 2 [employment discrimination], 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. (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][] For purposes of employment discrimination under article 2 of the act, the definition of handicap does not include: A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job. [MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).] The act does not specifically address mitigating measures, such as medication. Consequently, we must engage in a more detailed analysis of how such measures affect a person’s handicapped status. We turn next to this issue and will consider the plaintiff’s other claims of error regarding admission of evidence of the plaintiff’s alcoholism and of the defendant’s economic conditions later in this opinion. in CLAIMED INSTRUCTIONAL ERROR The question whether to consider a person’s unmitigated condition in determining handicapped status under the 1990 HCRA definition of “handicap” is one of first impression. Because the HCRA definition mirrors that of the ADA, we examine federal law for guidance. While the ADA itself, like the hcra, does not specifically address the issue of mitigating measures, the Equal Employment Opportunity Commission, the federal agency charged with administering the act in the employment context, has determined that an individual’s status should be determined not as it presently exists, but as it would exist without regard to medication or other mitigating measures. The interpretive guidelines state: The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. See Senate Report at 23, House Labor Report at 52, House Judiciary Report at 28. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with a hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid. [29 CFR 1630.2(h), Appendix, p 350 (1997). ][] Despite this interpretive guidance, and the general rule that federal courts accord deference to agency interpretation of the act that the agency is charged to administer, many federal courts that have considered the issue have rejected the eeoc’s guidelines. Federal courts are split on whether the ADA requires consideration of the individual’s present status, or whether the eeoc guidelines should be followed and consideration be given to the individual’s condition as it would hypothetically exist without the aid of mitigating measures. We find the reasoning of those federal courts that have rejected the EEOC guidelines to be persuasive and that this reasoning applies to our interpretation of the HCRA. We will turn next to a review of the arguments presented by these courts. First, and most important, the approach taken in the EEOC guidelines contravenes the plain language of the ADA, and also of the hcra. The ADA and hcra definitions require an individual to have a condition that substantially limits a major life activity. In contrast, the administrative gloss imposed on this plain language by the guidelines provides that an individual who would have a substantial limitation if he failed to take his medication or discontinued using other mitigating measures comes within the definition. In other words, the eeoc approach, which is the appr
Similar Rulings
CHMIELEWSKI v XERMAC, INC Docket No. 162968. Submitted October 17, 1995, at Lansing. Decided May 21, 1996, at 9:05 A.M. Leave to appeal sought. Gary P. Chmielewski brought an action in the Oakland Circuit Court against Xermac, Inc., alleging violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and breach of an employment contract. The plaintiff’s employment was terminated by the defendant after he had undergone a liver transplant for cirrhosis of the liver caused by alcoholism and had returned to work. The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim. The jury returned a verdict for the defendant with regard to the discrimination claim, and the trial court entered a judgment consistent with the jury verdict. The plaintiff appealed. The Court of Appeals held: 1. The trial court did not err in admitting evidence of the plaintiff’s alcoholism. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the statutory definition of handicapped, evidence of the plaintiff’s alcohol use was relevant and more probative than prejudicial. The evidence was also relevant and more probative than prejudicial with regard to the issue of damages. 2. The trial court did not abuse its discretion in admitting evidence of the defendant’s financial condition. Evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverted the element of a prima facie case of handicap discrimination that the employer must have discharged the plaintiff because of a handicap. Therefore, the claim that the plaintiff’s employment was terminated for economic reasons did not constitute an affirmative defense that was waived when it was not raised in a responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading. 3. The trial court properly instructed the jury. An instruction requested by the plaintiff did not accurately state the law and was properly refused. The act provides that, to fall within the definition of a handicap, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities. The instruction requested by the plaintiff, which leaps to the conclusion that if a condition requires medication it constitutes a substantial impairment per se, is unreasonable and incompatible with the purpose of the act. Affirmed. Fitzgerald, J., dissenting in part, stated that the trial court should have granted the plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The instruction sought by the plaintiff did not leap to the conclusion that a condition that requires medication constitutes a substantial impairment per se. Rather, the instruction provided that an individual who suffers a determinable physical characteristic that is brought under control by medication may still suffer a substantial limitation of major life activity to the extent that the condition, even though controlled, affects the individual’s employability. The proposed instruction was applicable and accurate under the facts of this case and may have enhanced the ability of the jurors to decide the case intelligently, fairly, and impartially. The trial court abused its discretion in refusing the requested instruction. The failure to give the instruction resulted in substantial injustice. The case should be reversed and remanded for a new trial. 1. Civil Rights — Handicappers’ Civil Rights Act — Employment Discrimination — Alcoholism. The Michigan Handicappers’ Civil Rights Act expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee'from performing the duties of the job (MCL 37.1103[f][ii]; MSA 3.560[103] [f] [ii]). 2. Pleading — Affirmative Defenses. An affirmative defense is a defense that does not controvert the establishment of a prima facie case but that otherwise denies relief to the plaintiff. 3. Civil Rights — Handicap Discrimination — Employment Discrimination — Prima Facie Case. The plaintiff in a handicap discrimination case who alleges wrongful discharge from employment has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of a handicap; evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverts this element and therefore does not constitute an affirmative defense. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — “Handicap.” To fall within the definition of a handicap in the Michigan Handicappers’ Civil Rights Act, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities; the concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in the search for satisfactory employment (MCL 37.1103[e][i][A]; MSA 3.650[103][e][i][A]). Muth & Fett, P.C. (by James K. Fett), for the plaintiff. Kerr, Russell & Weber (by Daniel G. Beyer), for the defendant. Before: Mackenzie, P.J., and Fitzgerald and J. P. O’Brien, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Mackenzie, P.J. Plaintiff appeals as of right a jury verdict for defendant in this handicap discrimination case. We affirm. Plaintiff worked as a salesperson for defendant from November 1985 until June 29, 1990. He underwent a liver transplant in June 1989 for cirrhosis of the liver caused by alcoholism and was off work for approximately six weeks before being released to return to work by his physician. His employment was terminated approximately seven months later, allegedly because of his failure to meet sales quotas. In October 1990, plaintiff instituted this action against defendant for violation of the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) el seq., claiming that defendant terminated him because of the high health insurance costs attributable to his condition. A claim of breach of an employment contract was subsequently added to the complaint. Defendant moved for summary disposition of both counts. The trial court denied defendant’s motion in part and granted it in part, dismissing plaintiff’s wrongful discharge claim but finding a material issue of fact remained regarding the discrimination claim. At trial, plaintiff argued that the carrying of a transplanted liver and the side effects thereof, without the use of medication, constituted a handicap. Defendant argued that plaintiff was not handicapped because (1) with medication, he does not have a determinable physical characteristic that substantially limits a major life activity, and (2) he is an alcoholic. A jury returned a verdict for defendant with regard to the discrimination claim. Plaintiff first claims that the trial court erred in admitting at trial evidence of his alcoholism. We disagree. Evidence that tends to make the existence of a fact at issue more probable or less probable is relevant and, therefore, admissible. MRE 401, 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; McDonald v Stroh Brewery Co, 191 Mich App 601, 605; 478 NW2d 669 (1991). The fact that evidence is damaging and harms the opposing party does not indicate that it is unfairly prejudicial. Sclafani v Peter S Cusimano, Inc, 130 Mich App 728, 735; 344 NW2d 347 (1983). Further, error requiring reversal may not be predicated upon a ruling that admits evidence unless a substantial right was affected. MRE 103(a); Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 329; 454 NW2d 610 (1990). The HCRA expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee from performing his job duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii); Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). Plaintiff contends that this restriction is not applicable to the present, case because defendant conceded that alcoholism did not affect his job performance. However, defense counsel argued during closing arguments that plaintiff’s poor work performance when he returned from his leave of absence resulted from plaintiff’s failure to fully recover from the injuries caused by his alcoholism. In its instructions, the trial court cautioned the jury regarding the manner in which the evidence of plaintiff’s alcoholism should be used in determining whether plaintiff could be considered handicapped: Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic. On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law. A person, ladies and gentlemen, cannot have a history of [a] determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of an alcoholic liquor which prevented the person from performing the duties of his job. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the definition of handicapped, evidence of plaintiff’s alcohol use was relevant and more probative than prejudicial. Thus, the court did not abuse its discretion in admitting the evidence of plaintiff’s alcohol use. Further, the evidence was relevant and was more probative than prejudicial with regard to the issue of damages. According to the testimony of plaintiff’s physician, serious risks exist for patients who continue to consume alcohol after a liver transplant. Consequently, plaintiff’s alcohol use could affect his life expectancy and, therefore, defendant’s liability for damages. Plaintiff next contends that the trial court erred in admitting evidence of defendant’s financial condition because defendant did not raise economic necessity as a defense. Under MCR 2.111(F)(3), affirmative defenses must be raised in the responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, and the failure to do so constitutes a waiver of the defense. Stanke v State Farm Mutual Automobile Ins Co, 200 Mich App 307, 311; 503 NW2d 758 (1993). An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. Id. at 312. In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v American Seating Co, 209 Mich App 130, 132; 530 NW2d 158 (1995), rev’d on other grounds 450 Mich 966 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant’s financial condition. Last, plaintiff contends that reversal is required because of instructional error. Again, we disagree. Subsection 103(e)(i)(A) of the hcra, MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A), defines a handicap 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. [Emphasis added.] On the basis of this language, plaintiff contends that he was entitled to a supplemental jury instruction defining a handicapped person as one who has a determinable physical characteristic which substantially limits one or more life activities . . . even if the determinable characteristic is controlled with medication or medical care. [Emphasis added.] When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, in its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). The requested instruction does not accurately state the law, and thus was properly refused. The alleged handicap at issue in this case is characterized by plaintiff as carrying a transplanted organ. However, it is undisputed that plaintiffs status as an organ donee in no way affected his major life activities or his ability to perform his job duties, as long as plaintiff took antirejection medication. Viewed in this context, plaintiffs condition is akin to that of a person whose high blood pressure or allergies are controlled by medication, or who receives hormone replacement therapy, or whose poor eyesight requires corrective lenses. In each instance, the chronic “handicapping” condition is ameliorated by medical means with relative ease. Under the plain language of subsection 103(e)(i)(A) of the HCRA, to fall within the definition of a handicap, an individual’s condition-whether being treated or not-must substantially impair the person’s major life activities. The instruction requested by plaintiff does not state that proposition. Instead, it leaps to the conclusion that if a condition requires medication, then it constitutes a substantial impairment per se. We find that conclusion to be unreasonable and incompatible with the purpose of the hcra. As stated in Forrisi v Bowen, 794 F2d 931, 934 (CA 4, 1986): It would debase this high purpose [of protecting the disabled from discrimination in employment] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment. In the final analysis, plaintiffs claimed handicap is that he must take medication to control a chronic condition. This “handicap” is shared by countless other individuals in the workplace and in society as a whole. To automatically label the condition as one that substantially impairs major life activities, as the requested instruction would do, is inconsistent with the HCRA and, as pointed out by the Forrisi court, does a gross disservice to the truly handicapped. Accordingly, we hold that the instruction was inconsistent with the HCRA and that it was properly withheld from the jury. Affirmed. J. P. O’Brien, J., concurred. Accord Joyce v Suffolk Co, 911 F Supp 92 (ED NY, 1966) (employee not handicapped; poor eyesight corrected by eyeglasses and high blood pressure controlled with medication are not physical impairments that substantially limit major life activities); Walker v Aberdeen-Monroe Co Hosp, 838 F Supp 285 (ND Miss, 1993) (employee not handicapped; sarcoidosis and poor vision controlled with medication do not substantially limit employee’s m^jor life activities); Cadelli v Fort Smith School Dist, 852 F Supp 789 (WD Ark, 1993) (employees not handicapped; anxiety panic disorder and high blood pressure treated with medication do not substantially limit employee’s ability to work); Davis v Frank, 1992 US Dist LEXIS 10402; 59 Empl Prac Dec (CCH) p 41,744 (employee not handicapped; high blood pressure and “nervousness” controlled with medication pose no restriction on worker’s life activities). Fitzgerald, J. (concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion that the trial court did not err in denying plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The determination whether an instruction is accurate and applicable based on the characteristics of a case is within the sound discretion of the trial court. Williams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992). When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, at its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). A supplemental instruction need not be given if the instruction would neither add anything to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. Houston v Grand Trunk W R Co, 159 Mich App 602, 608; 407 NW2d 52 (1987). The failure to give a properly requested, applicable, and accurate instruction does not require reversal unless failure to vacate the jury verdict would be inconsistent with substantial justice. Johnson v Corbet, 23 Mich 304, 326; 377 NW2d 713 (1985). Before its amendment in 1990, the Michigan Handicappers’ Civil Rights Act (hcra) defines the term handicap as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic: (i) .. . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(b)(i); MSA 3.550(103)(b)(i).] The Legislature amended the definitional language in 1990 to define a handicap 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. [MCL 37.1103(e)(i)(A); MSA 3.550(103)(eXi)(A).] Under both of these definitions, a condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the hcra. Koester v Novi, 213 Mich App 653, 661-662; 540 NW2d 765 (1995). Here, plaintiff’s physician testified that as long as plaintiff continued to take antirejection medication, plaintiff did not suffer any limitations on his major life activities or his ability to perform his job duties. Given this testimony, plaintiff, relying on Hines v Grand Trunk W R Co, 151 Mich App 585, 595-596; 391 NW2d 750 (1985), requested a supplemental jury instruction as follows: A person that has a determinable physical characteristic which substantially limits one or more life activities is handicapped even if the determinable physical condition— physical characteristic is controlled with medication or medical care. The trial court refused to give the instruction on the ground tha
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