Discrimination Cases

THOMAS v UNITED PARCEL SERVICE ALEXANDER v UNITED PARCEL SERVICE Docket Nos. 209699, 209991. Submitted October 13, 1999, at Detroit. Decided May 16, 2000, at 9:10 A.M. Troy Thomas, an African-American male, brought an action in the Wayne Circuit Court against United Parcel Service (ups) and Paul Maconchi, alleging racial and gender discrimination in violation of the state Civil Rights Act, MCL 37.2101 et seq:, MSA 3.548(101) et seq., and common-law defamation. The action was based on the termination of the plaintiff’s employment by ups for alleged dishonesty and statements by Maconchi, an employee of ups, that the plaintiff had falsified his record regarding the amount of time he had worked. The trial court, Brian K. Zahra, J., granted the defendants’ motion for summary disposition on the basis that 49 USC 41713, the preemption provision of the Federal Aviation Administration Authorization Act of 1994 (faaaa), preempts claims of race and gender discrimination brought under the state Civil Rights Act. The plaintiff appealed. (Docket No. 209699). Charles Alexander and other African-American males brought an action in the Wayne Circuit Court against the same defendants and making the same allegations. The court, Pamela R. Harwood, J., denied the defendants’ motion for summary disposition, which also alleged that the plaintiffs’ claims were preempted by the faam. The defendants appealed by leave granted. (Docket No. 209991). The appeals were consolidated. The Court of Appeals held: 1. A common-law tort claim is a state law action that can be preempted by federal law. 2. State statutes or actions having some connection with or reference to airline rates, routes, or services are preempted under a 1994 amendment of the faam commonly known as the Airline Deregulation Act (ada), 49 USC 41713(b)(1). The preempting of claims where a state statute’s effect on an airline’s rates, routes, or services is tenuous, remote, or peripheral should be approached cautiously. A state must enact or enforce a law affecting rates, routes, or services before the law is preempted by the ada. 3. A claim must be shown to be derived from the enactment or enforcement of state law and to relate to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them, for the claim to be preempted by the ada. 4. The plaintiffs’ race and gender are wholly unrelated to the defendants’ services or the plaintiffs’ ability to carry out duties and serve the airline industry. While the ada has a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services in order for the preemptive provision of the ada to be applicable. No such connection or relation is presented by the plaintiffs’ claims of racial and gender discrimination. 5. The defamation claims are simply too tenuous, remote, or peripheral to be subject to preemption. The order in Docket No. 209699 must be reversed and the matter must be remanded. The order in Docket No. 209991 must be affirmed and the matter must be remanded. Gage, J., concurring with the result reached by the majority wrote separately to state that she does not believe that one’s age or physical condition has no arguable connection to an airline’s provision of services. Because issues regarding the plaintiffs’ age or physical condition are not raised in this case, the majority’s citation of decisions involving age or physical characteristics to support the proposition that age or physical characteristics is unrelated to airline services is unnecessary and should be deleted. 1. Civil Righto — Employment Discrimination — Airline Deregulation Act — Preemption. The Federal Aviation Administration Authorization Act of 1994, commonly known as the Airline Deregulation Act, does not preempt claims of race and gender discrimination in employment brought under the state Civil Rights Act (49 USC 41713; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Conflict of Laws — Airline Deregulation Act — Preemption. A state law claim can be preempted by the Federal Aviation Administration Authorization Act of 1994, commonly known as the Airline Deregulation Act, only upon a showing that the claim is derived from the enactment or enforcement of state law and that the claim relates to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them (49 USC 41713). O’Neal O. Wright & Assoc, P.C. (by O’Neal O. Wright and Lynette M. Bledsaw'), for the plaintiffs. Dykema Gossett PLLC (by Debra M. McCulloch and Deric J. Bomar), for the defendants. Before: Jansen, P.J., and Saad and Gage, JJ. Jansen, P.J. In these consolidated appeals, we are asked to determine if the preemption provision of the Federal Aviation Administration Authorization Act of 1994 (faaaa), 49 USC 41713, preempts claims of race and gender discrimination brought under the state Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq. In Docket No. 209699, plaintiff appeals as of right from the trial court’s order granting summary disposition in favor of defendants on the basis of preemption. We reverse. In Docket No. 209991, defendants appeal by leave granted from the trial court’s order denying their motion for summary disposition. We affirm. Plaintiffs, all African-American males, worked for defendant United Parcel Service (ups) as delivery drivers. Contrary to company practice and procedure, the drivers allegedly took an unauthorized meal break while on duty, for which each driver claimed well over two hours of time for the period they were not actually working. Defendant Paul Maconchi, an employee of UPS, allegedly defamed plaintiffs by stating they had falsified their time records. In December 1996, plaintiffs’ employment was terminated for dishonesty. In July 1997, plaintiffs brought suit against defendants. The complaints alleged racial and gender discrimination in violation of the state Civil Rights Act, and common-law defamation. Plaintiffs alleged in their complaints that white employees were not disciplined or terminated from employment for the same conduct. In each case, defendants moved for summary disposition under MCR 2.116(C)(4), alleging lack of subject-matter jurisdiction, on the ground that plaintiffs’ claims were preempted by the faaaa. We review de novo a trial court’s ruling regarding a motion for summary disposition under MCR 2.116(C)(4). James v Commercial Carriers, Inc, 230 Mich App 533, 536; 583 NW2d 913 (1998). Because a preemption determination involves legal questions of statutory interpretation, we likewise review these issues de novo. Saginaw Co v John Sexton Corp of Michigan, 232 Mich App 202, 214; 591 NW2d 52 (1998). Whether a federal statute preempts state law is a question of congressional intent. Hawaiian Airlines, Inc v Norris, 512 US 246, 252; 114 S Ct 2239; 129 L Ed2d 203 (1994); Ryan v Brunswick Corp, 454 Mich 20, 27; 557 NW2d 541 (1997). Congressional intent is to be gleaned from the text, structure, and purpose of the statute as a whole, including the manner in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law. Id., p 28. The plain meaning of a statute must be given effect unless there is reason to believe that Congress intended a more restrictive reading. Id. “Federal provisions that invalidate state law must be narrowly tailored to support a presumption against preemption of state law.” Id., p 27. State police powers should not be superseded unless that is the clear and unequivocal intent of Congress, especially where state regulation of matters relating to health and safety are concerned. Id. Additionally, preemption of state law may be either express or implied. If express, the intent of Congress to preempt state law must be clearly stated in the statute’s language or impliedly contained in the statute’s structure and purpose. Id., p 28. Implied preemption may exist in the form of conflict or field preemption. Conflict preemption preempts state law that is in direct conflict with federal law or with the purposes and objectives of Congress. Id. Field preemption preempts state law where federal law so thoroughly occupies a legislative field that it is reasonable to infer that Congress did not intend for states to supplement it. Id. A common-law tort claim is a state law action that can be preempted by federal law. Id., pp 33-34. Before 1978, interstate airline travel was heavily regulated by the federal government. Federal Aviation Act of 1958, PL 85-726 (codified at 49 USC 1301 et seq., but now repealed). In 1978, Congress decided that open competition among airlines, especially in the area of rates and services, would benefit consumers and the economy. See 49 USC 1302 (recodified as 49 USC 40101). Thus, in 1978, Congress enacted the Airline Deregulation Act (ADA), 49 USC 41713(b)(1), formerly codified at 49 USC 1305, “[t]o ensure that the States would not undo federal deregulation with regulation of their own . . . .” Morales v Trans World Airlines, Inc, 504 US 374, 378; 112 S Ct 2031; 119 L Ed 2d 157 (1992). In 1994, Congress amended the ada and added subsection 41713(b)(4)(A), which states as follows: General rule. — Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement). This subsection’s language and purpose are essentially the same as the general preemption clause of the ADA, 49 USC 41713(b)(1), but applies to all cargo air transportation carriers. Thus, cases interpreting the general preemption clause of the ADA may be applied by this Court in conducting our analysis under subsection 41713(b)(4)(A). LaRosa v United Parcel Service, Inc, 23 F Supp 2d 136 (D Mass, 1998). The United States Supreme Court has considered ADA preemption in two cases. In Morales, supra, the United States Supreme Court considered whether subsection 41713(b)(1) preempted state attorneys general from enforcing state consumer protection laws regarding airline fares advertising. The United States Supreme Court held that the plain meaning of the term “relating to” in the preemption provision indicated a congressional intent to broaden the scope of preemption. Morales, supra, p 384. In other words, state statutes or actions having some “ ‘connection with or reference to’ ” airline rates, routes, or services are preempted under the ada. Id., quoting Shaw v Delta Air Lines, Inc, 463 US 85, 97; 103 S Ct 2890; 77 L Ed 2d 490 (1983). The United States Supreme Court concluded that “the obligations imposed by the [advertising] guidelines would have a significant impact upon the airlines’ ability to market their product, and hence a significant impact upon the fares they charge.” Morales, supra, p 390. Thus, the fares advertising guidelines were preempted. Id. However, the United States Supreme Court cautioned against preempting claims where the state statute’s effect on an airline’s rates, routes, or services was “ ‘tenuous, remote, or peripheral....’” Id., p 390, quoting Shaw, supra, p 100, n 21. The United States Supreme Court later addressed the ada’s preemption provision in American Airlines, Inc v Wolens, 513 US 219; 115 S Ct 817; 130 L Ed 2d 715 (1995). In Wolens, participants in American Airlines’ frequent flyer program challenged modifications to the program that devalued credits already earned by program participants. Id., pp 224-225. The frequent flyer participants argued that the modifications violated the Illinois Consumer Fraud Act and also constituted a breach of contract. Interpreting the Morales decision, the Supreme Court concluded that American Airlines’ frequent flyer program related to “rates, routes, or services.” Id., p 226. However, the Supreme Court emphasized that a state must also “enact or enforce” a law affecting rates, routes, or services before such law is preempted by the ADA. Id. The Supreme Court distinguished the consumer fraud claim from the breach of contract claim and held that the consumer fraud claim involved the enactment or enforcement of state law and, therefore, was preempted. The state’s enforcement of private contractual rights did not involve the enactment or enforcement of state law and, consequently, the Supreme Court held that the breach of contract claim was not preempted by the ADA. Id., p 228. Accordingly, for a claim to be preempted by the ADA, the following must be shown: (1) the claim must derive from the enactment or enforcement of state law, and (2) the claim must relate to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them. Travel All Over the World, Inc v Kingdom of Saudi Arabia, 73 F3d 1423, 1432 (CA 7, 1996). There is no dispute that plaintiffs’ claims derive from the enactment or enforcement of state law. Thus, the question before this Court is whether the state Civil Rights Act’s prohibition against racial and gender discrimination in employment “relates to” rates, routes, or services of an air carrier. This Court addressed the issue of preemption by the ADA of claims brought under the state Civil Rights Act in Gilman v Northwest Airlines, Inc, 230 Mich App 293; 583 NW2d 536 (1998). In Gilman, the plaintiff was an account executive in Northwest Airlines’ sales office and was terminated from her job, allegedly for poor performance. The plaintiff filed a three-count complaint, alleging claims of wrongful discharge, age discrimination, and gender discrimination under the state Civil Rights Act. After examining the legislative intent behind the ADA, this Court concluded that there is nothing in the language of the statute to suggest that Congress intended, nor does the case law suggest, that the preemption provision should be interpreted in such a broad and extensive maimer as to completely shelter airlines from a state action by an employee who has allegedly been discriminated against by the airline in no connection whatsoever to the services it provides. [Id., p 297.] This Court in Gilman distinguished the prior decision of Fitzpatrick v Simmons Airlines, Inc, 218 Mich App 689; 555 NW2d 479 (1996), and the Colorado Court of Appeals decision in Belgard v United Airlines, 857 P2d 467 (Colo App, 1992), by noting a particular distinction between “the effect physical abilities or characteristics have on an airline’s services and the effect one’s age or sex has on the industry.” Gilman, supra, p 300. This Court ruled that a person’s age or gender are, “for the most part, wholly unrelated to an individual’s ability to carry out duties and serve the airline industry.” Id. This Court was “unable to discern how an individual’s age or sex has any reasonable connection or relation to airline services or how a state law abridging unlawful discrimination on those bases will restrict an airline’s authority to select employees.” Id. This Court in Gilman concluded that “while the ADA has been interpreted to have a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services, in order for the preemptive provision of the ADA to be applicable.” Id., p 303. Regardless of this Court’s decision in Gilman, defendants argue that the earlier holding in Fitzpat rick is controlling. In Fitzpatrick, this Court affirmed the trial court’s dismissal of the plaintiff’s weight discrimination claim under the Civil Rights Act on the basis of preemption under the ADA. The plaintiff was a baggage handler whose employment was terminated for failure to meet the defendant airline’s mandatory height and weight rule. This Court in Fitzpatrick cited Morales for the proposition that “the words ‘relating to’ as used in the ADA expressed a broad preemptive purpose.” Fitzpatrick, supra, p 691. This Court in Fitzpatrick relied on the Colorado Court of Appeals decision in Belgard in support of its finding of preemption. In Belgard, airline employees who had been denied jobs as pilots as a result of having undergone corrective eye surgery sued the airline, claiming that the airline violated a Colorado statute that prohibited discrimination based on a perceived physical handicap. Relying on the ADA’s dual purposes of “ ‘maintenance of safety as the highest priority’ ” and “ ‘maximum reliance on competitive market forces,’ ” the court in Belgard determined that state regulation of hiring decisions made on the basis of a job applicant’s “physical characteristics” was preempted as having a “connection with” the airline’s services. Belgard, supra, pp 470-471. On the basis of the foregoing, this Court in Fitzpatrick, supra, concluded, “ ‘[A]ny law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one “relating to,” the services to be rendered by the airline.’ ” [Fitzpatrick, supra, p 692, quoting Belgard, supra, p 471.] Defendants interpret Fitzpatrick as holding plaintiffs’ state law racial and gender discrimination claims to be preempted by the ADA. The trial court in Docket No. 209991 refuted this interpretation and instead ruled that Fitzpatrick was correctly decided under its facts, but that the ada’s preemption provisions do not apply to all claims under the Civil Rights Act. We agree with the trial court. Gilman is dispositive of the preemption issue presented here. Plaintiffs’ race and gender are wholly unrelated to defendants’ services. This view has also been set forth by the United States Court of Appeals for the Sixth Circuit, which recently held that “[n] either air safety nor market efficiency is appreciably hindered by the operation of state laws against racial discrimination.” Wellons v Northwest Airlines, Inc, 165 F3d 493, 496 (CA 6, 1999). The court noted, “An employee’s race, as opposed to his eyesight or physical size, has no arguable connection to safety.” Id. Moreover, unlike the regulation of marketing practices at issue in Morales, supra, or the regulation of the frequent flyer programs at issue in Wolens, supra, “ ‘whether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency.’ ” Wellons, supra, p 496, quoting Abdu-Brisson v Delta Air Lines, Inc, 128 F3d 77, 84 (CA 2, 1997). Consequently, the court in Wellons held that the ADA did not preempt the plaintiff’s state statutory race discrimination claim and related common-law tort claims. Accord Parise v Delta Airlines, Inc, 141 F3d 1463 (CA 11, 1998) (state statutory age discrimination claim not preempted by the ADA); Aloha Islandair, Inc v Tseu, 128 F3d 1301 (CA 9, 1997) (state statutory physical disability claim not preempted by the ADA); Abdu-Brisson, supra (state statutory age discrimination claim not preempted by the ADA). Defendants urge this Court to consider that plaintiffs’ claims are preempted because “their terminations arose out of their conduct while delivering packages,” which is the very “service” provided by ups to its customers. Although this may be relevant to whether plaintiffs can survive a motion for summary disposition on the merits of their cases, it is inappropriate for this Court to weigh defendants’ nondiscriminatory justification for discharging its employees as a basis for finding preemption. Parise, supra, p 1466. Additionally, though not ad

CLINE v AUTO SHOP, INC Docket No. 213165. Submitted September 14, 1999, at Lansing. Decided May 16, 2000, at 9:00 A.M. James M. Cline, an agnostic, brought an action in the Jackson Circuit Court against The Auto Shop, Inc., and others, alleging employment discrimination based on religion and in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Charles A. Nelson, X, granted summary disposition for the defendants, ruling that the act affords no protection to an agnostic claiming discrimination by a person with whose religious beliefs the agnostic does not agree. The plaintiff appealed. The Court of Appeals held: Subsection 202(1) of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), prohibits an employer from disfavoring an employee “because of religion.” An employer that disfavors an employee because the employee is not in religious conformity with the employer disfavors the employee because of religion. The trial court erred in concluding that an employee who does not allege a religious belief has failed to state a prima facie case of religious discrimination as a matter of law. Reversed and remanded. Civil Rights — Employment Discrimination — Religion. An employer that disfavors an employee because the employee does not share the employer’s religious beliefs disfavors the employee because of religion in a manner prohibited by the Civil Rights Act (MCL 37.2202[1]; MSA 3.548[202][1]). Robison & Sims, RC. (by John M. Sims'), for the plaintiff. Marcoux, Allen, Abbott, Schomer & Bower, P.C. (by Robert T. Kendall, III), for the defendants. Before: Talbot, P.J., and Fitzgerald and Markey, JJ. Fitzgerald, J. Plaintiff appeals as of right the order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) in this religious discrimination case. We reverse and remand. Plaintiff alleged that he was employed by defendant, The Auto Shop, Inc., from August 1994 until his constructive discharge in April 1996. Defendantappellee Phillip E. Tripp, Jr. (Tripp), is the owner of the business. Defendant Barbara Tripp is Tripp’s wife. Plaintiff, who was agnostic, alleged that Tripp’s treatment of plaintiff and the terms of his employment, such as compensation, job assignments, and the ability for advancement, were dependent on plaintiff’s attendance at Tripp’s church. Tripp is a “born-again Christian” and attends Cherish Christian Church. Specifically, plaintiff testified in his deposition that he was told that his compensation would be increased if he attended church, and that he in fact received pay raises after attending church. He also testified that if he did not attend church he was given more difficult assignments and was given less time to complete assignments than those employees who attended Tripp’s church. Plaintiff indicated that his supervisor told him that he would have a better chance for advancement if he attended church with Tripp. Barbara Tripp told plaintiff that he should go to church, to pray to the Lord, and to accept the Lord in plaintiff’s soul. Plaintiff testified that he could not work with the pressures of having to go to church and terminated his employment. He subsequently filed suit against defendants, alleging religious discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.) MSA 3.548(101) et seq., on the ground that he was discriminated against because he does not share Tripp’s religious beliefs. Defendants moved for summary disposition on the ground that “attempts to proselytize plaintiff” did not interfere with plaintiff’s religious practices. The trial court granted summary disposition in favor of defendants on a different ground, finding that the CRA does not provide protection for an atheist or agnostic who does not have a bona fide religious belief. Subsection 202(1) of the CRA, MCL 37.2202(1); MSA 3.548(202)(1), provides that an employer shall not: (a) Fañ or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of religion.... (b) Limit, segregate, or classify an employee . . . for employment in a way that deprives or tends to deprive the employee ... of an employment opportunity, or otherwise adversely affects the status of an employee . . . because of religion.... The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. People v Morris, 450 Mich 316, 325; 537 NW2d 842 (1995). Here, the plain text of the statute provides no basis to limit the protections of § 202 to those individuals who allege a bona fide religious belief. On the contrary, the statute refers to “religion” without limiting its reach to the religious beliefs of the employee. If an employer disfavors an employee because the employee is not in religious conformity with the employer, the employer has plainly disfavored that employee “because of religion.” Accordingly, we conclude that the trial court erred in concluding that an employee who does not allege a religious belief has failed to state a prima facie case of religious discrimination as a matter of law. Because the trial court did not address the merits of defendants’ motion for summary disposition, we remand to the trial court for consideration of defendants’ motion. Reversed and remanded. Jurisdiction is not retained. This case was held in abeyance pending the resolution of the conflicting opinion in Zanni v Medaphis Physician Services Corp, 240 Mich App 472; 612 NW2d 845 (2000).

MITAN v NEIMAN MARCUS Docket No. 212002. Submitted December 7,1999, at Detroit. Decided April 28, 2000, at 9:20 A.M. Lynette Mitán brought an action in the Oakland Circuit Court against Neiman Marcus and Jill Blake, alleging retaliatory discharge from employment in violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The court, David F. Breck, J., granted summary disposition for the defendants, ruling that there existed no genuine issues of material fact and the defendants were entitled to judgment as a matter of law. The plaintiff appealed. The Court of Appeals held: MCL 37.1602(a); MSA 3.550(602)(a) provides that a person shall not retaliate or discriminate against another person because that other person has opposed a violation of the act, or because that other person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act. In this case, the plaintiff failed to establish a prima facie case of retaliatory discharge because the complaints she filed against Blake, her supervisor at Neiman Marcus, did not suggest or imply job discrimination related to the plaintiff’s disability. Thus, the plaintiff did not show that she suffered retaliation because she had made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act. Affirmed. Civil Rights — Michigan Handicappers’ Civil Rights Act — Employment — Unlawful Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Michigan Handicappers’ Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.1602[a]; MSA 3.550[602][a]). Jayne F. Cucchiara, for the plaintiff. Video, Lane, Payne & Broder, PC. (by Andrew J. Broder), for the defendants. Before: Smolensk!, P.J., and Whitbeck and Zahra, JJ. Per Curiam. Plaintiff appeals as of right from a circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10) and dismissing her claim for retaliatory discharge under the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1602(a); MSA 3.550(602)(a). We affirm. The trial court’s ruling on a motion for summary disposition is reviewed de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996). [Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999).] In her sole issue on appeal, plaintiff contends that genuine issues of material fact exist that preclude summary disposition of her claim of illegal retaliation under the HCRA, MCL 37.1602; MSA 3.550(602), which provides in pertinent part: A person or 2 or more persons shall not do the following: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. In construing the nearly identical provision of the Civil Rights Act, this Court stated in DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997): To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. In discussing the antiretaliation provision of the Civil Rights Act, this Court stated in McLemore v Detroit Receiving Hosp & Univ Medical Ctr, 196 Mich App 391, 396; 493 NW2d 441 (1992), that [r]egardless of the vagueness of the charge or the lack of formal invocation of the protection of the [Civil Rights Act], if an employer’s decision to terminate or otherwise adversely effect [sic] an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. Because the hcra has the same purposes and goals as the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.) Milnikel v Mercy-Memorial Medical Ctr, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989), we conclude that the reasoning set forth in DeFlaviis and McLemore with respect to the retaliation provision of the Civil Rights Act applies with equal force to the retaliation provision of the HCRA. Here, the evidence showed that plaintiff sent a written complaint to the human resources manager indicating that Jill Blake, her supervisor, had engaged in “job discrimination” because she would not allow plaintiff to participate in a sales promotion. While plaintiff’s complaint mentioned that she accomplished numerous sales “during limited hours due to my physical disability,” she did not suggest or imply that the alleged job discrimination was related to her disability. She sent a second written complaint indicating that Blake had engaged in “job harassment” because she had disputed whether sales plaintiff had made could be credited toward her total sales for another promotion and had called plaintiff a liar. However, because plaintiff’s complaints did not state, imply, or raise the specter that plaintiff either opposed a violation of the HCRA or “made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing” under the act, this evidence does not establish that plaintiff participated in a protected activity. Although plaintiff asserted that she raised the issue of handicap discrimination at a meeting with the human resources manager and Blake, she testified at her deposition that she admitted at the close of the meeting that Blake treated her the same as everyone else. While plaintiff denied in her affidavit having made such concession, she cannot create a factual issue by asserting the contrary in her affidavit after having given damaging testimony in her deposition. See Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257; 503 NW2d 728 (1993), which recognized the principle expressed in Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), “that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition.” Plaintiff having failed to make out a prima facie case of retaliatoiy discharge under the HCRA, the trial court did not err in granting defendants’ motion for summary disposition. Affirmed. After plaintiff filed her action, the hcra was renamed the Persons With Disabilities Civil Rights Act. MCL 37.2701(a); MSA 3.548(701)(a).

ARSLANIAN v OAKWOOD UNITED HOSPITALS, INC (ON REMAND) Docket No. 189349. Submitted January 3, 2000, at Detroit. Decided April 21, 2000, at 9:00 A.M. Michael Arslanian brought an action in the Wayne Circuit Court against Oakwood United Hospitals, Inc., and others, alleging defamation, intentional infliction of emotional distress, interference with contract, and retaliatory discharge and gender discrimination under the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., in connection with his discharge from employment. The court, Diane M. Hathaway, J., granted summary disposition for the defendants, holding that the claims were barred by res judicata or collateral estoppel arising from arbitration of a grievance pursuant to a collective bargaining agreement. The Court of Appeals, Murphy, P.J., and Michael J. Kelly and Gribbs, JJ., in an unpublished opinion per curiam, issued October 3, 1997 (Docket No. 189349), affirmed in part, reversed in part, and remanded, holding that the arbitration proceeding barred the claims that were not based on the Civil Rights Act, but did not bar the civil rights claims of retaliatory discharge and gender discrimination. The defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of Rembert v Ryan’s Family Steak, Houses, Inc, 235 Mich App 118 (1999). 461 Mich 921 (1999). On remand, the Court of Appeals held: 1. Rembert, in which the Court of Appeals held that a predispute individual employment agreement to arbitrate statutory claims (including those based on the Civil Rights Act) is not against public policy and is enforceable, does not apply to this case where the agreement to arbitrate was part of a collective bargaining agreement, not an individual employment contract. Arbitration of civil rights claims, if mandated by a collective bargaining agreement, is inappropriate because of union control of the arbitration process and because the interests of an individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit. 2. The arbitration clause of the collective bargaining agreement in this case is not enforceable with respect to civil rights claims because the agreement lacks clear notice to employees that they would be waiving the right to adjudicate civil rights claims in a judicial forum. Such notice is a requirement of a fair arbitral process. Affirmed in part, reversed in part, and remanded. Civil Rights — Collective Bargaining Agreements — Arbitration. An employee’s right to judicial determination of a civil rights claim against an employer is not curtailed by any provision in a collective bargaining agreement mandating arbitration of statutory claims (MCL 37.2101 et seq.; MSA 3.548(101] et seq.). Allen J. Counard, P.C. (by Charles A. Butler), for the plaintiff. Dykema Gossett PLLC (by Debra M. McCulloch and Jennifer J. Howe), for the defendants. ON REMAND Before: Murphy, P.J., and Kelly and Gribbs, JJ. Murphy, RJ. In an earlier, unpublished opinion in this case, Arslanian v Oakwood United Hosps, Inc, issued October 3, 1997 (Docket No. 189349), we held that a previous arbitration proceeding, held pursuant to a collective bargaining agreement, barred plaintiff Michael Arslanian’s subsequently filed claims of defamation, intentional infliction of emotional distress, and interference with contract. However, pursuant to Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), which held that the public policy of this state entitles a plaintiff to direct and immediate review of civil rights claims in the circuit court, we further held that the previous arbitration proceeding did not bar plaintiffs additional claims of retaliatory discharge and gender discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.) MSA 3.548(101) et seq. Defendants sought leave to appeal this ruling, and our Supreme Court, in lieu of granting leave, remanded the matter for our reconsideration in light of Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118; 596 NW2d 208 (1999), a decision of a special panel of this Court, which in pertinent part abrogated Rushton. 461 Mich 921 (1999). On reconsideration, we affirm our previous holdings. Plaintiff worked for defendant Oakwood United Hospitals until an alleged assault on defendant Karoline McKinzie resulted in his discharge. Pursuant to the collective bargaining agreement, plaintiff filed a grievance and an arbitration hearing was held. The arbitrator denied plaintiffs grievance, finding that McKinzie’s account of the assault was truthful and that plaintiff was legitimately discharged on the basis of that assault and his prior disciplinary record. Defendants filed a motion for summary disposition in response to plaintiffs subsequently initiated circuit court action, arguing that, as a result of the arbitration proceedings, plaintiffs claims were either barred by res judicata because they were or could have been brought in the arbitration proceedings or were essentially barred by collateral estoppel because the dis-positive facts had been determined by the arbitrator. The circuit court granted defendants’ motion and, as indicated above, on plaintiff’s appeal as of right we affirmed in part and reversed in part. We are now faced with the question whether Rembert compels a conclusion contrary to our previous decision allowing plaintiff to proceed with his CRA-based discrimination and retaliatory discharge claims. We find that it does not. In Rembert, the special panel of this Court interpreted an individual employment agreement and held that predispute agreements to arbitrate statutory claims, including CRA-based claims, are not against public policy and can be enforceable. The special panel indicated that such an agreement would be valid if (1) the parties have agreed to arbitrate the claims (there must be a valid, binding, contract covering the civil rights claims), (2) the statute itself does not prohibit such agreements, and (3) the arbitration agreement does not waive the substantive rights and remedies of the statute and the arbitration procedures are fair so that the employee may effectively vindicate his statutory rights. [Id. at 156.] Ultimately, the matter was remanded to the trial court for a determination whether the plaintiffs agreement was enforceable in light of those requirements. Id. at 166. Notwithstanding this explicit abrogation of Rush-ton, which also involved an individual employment contract, a like result is not compelled in this case because here we are concerned with an arbitration clause contained in a collective bargaining agreement. In reaching its result, the special panel in Rembert analyzed the tension between two Supreme Court cases dealing with arbitration in the context of employment discrimination claims, Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), and Gilmer v Inter state/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). In Alexander, as in the instant case, a union employee exercised the compulsory arbitration provision contained in a collective bargaining agreement. The Supreme Court held that the exercise of this provision did not preclude the employee from subsequently pursuing a title VII claim in court. Resting its decision in part on the then common view that with respect to statutory rights arbitration was inferior to traditional litigation, the Court concluded that the employee could vindicate contractual rights against discrimination at arbitration and could enforce independent statutory rights through litigation. Alexander, swpra at 50-52. Almost two decades later, the Supreme Court’s attitude toward arbitration was decidedly different. In Gilmer, the Court held enforceable an agreement to arbitrate statutory claims contained in an individual employment contract. Carefully distinguishing Alexander, the Court reasoned that the factors that in that case had militated against arbitration of civil rights claims were not applicable to a case that arose under the Federal Arbitration Act (faa), 9 USC 1 et seq., and in which an individual employment contract was at issue. Gilmer, supra at 34-35. The Court noted “several important distinctions” between the cases: First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the faa, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” [Id. at 35, quoting Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 625; 105 S Ct 3346; 87 L Ed 2d 444 (1985).] In reaching the decision that public policy supports enforcing valid arbitration clauses, the special pauel of this Court noted that the “critical distinction” between its case and Alexander was the one made salient by Gilmer, the difference between arbitration agreements arising in the context of a collective bargaining agreement and those arising out of individual employment contracts. Rembert, supra at 143. It is that same distinction that compels a contrary conclusion in the instant case. The special panel followed its analysis of Gilmer by discussing the progeny of that case, stating, “[s]ince the Court’s landmark decision in Gilmer, the vast majority of federal and state courts that have addressed this issue have followed Gilmer and held that statutory employment discrimination claims are subject to predispute compulsory arbitration by way of employment contracts.” Rembert, supra at 148. The special panel noted, however, that in the context of arbitration clauses found in collective bargaining agreements, a question still exists regarding “whether and to what extent [Alexander\ remains viable authority.” Id. at 151, n 24. Referencing a few of the cases in which parties have raised this issue, the special panel concluded, “[o]ur decision does not turn on the outcome of this controversy, and we express no opinion concerning the proper application of Gilmer to general arbitration clauses in collective bargaining agreements.” Id. at 152, n 24 (emphasis added). Accordingly, Rembert does not control the outcome of this case. Instead, we turn to those cases so addressing the question of the continuing viability of Alexander. Though to some degree a split of opinion exists among jurisdictions addressing this question, a clear majority of courts have found that Alexander remains an effective bar to compulsory arbitration of civil rights claims in the collective bargaining context. The minority view is represented by the Fourth Circuit Court of Appeals decision in Austin v Owens-Brockway Glass Container, Inc, 78 F3d 875 (CA 4, 1996). In that case, the court held that a binding arbitration clause in a collective bargaining agreement barred an employee from pursuing in a judicial forum claims brought under title VII and the Americans with Disabilities Act. Id. at 885-886. The court thus extended Gilmer, noting the difference presented by the fact that a collective bargaining agreement was at issue, but deeming this difference irrelevant. Id. at 885. A strong dissent was authored by Judge Hall, who stated that “[t]he majority fails to recognize, however, that the only difference makes all the difference.” Id. at 886. Judge Hall noted that the Supreme Court itself had made clear that Alexander was not overruled by Gilmer, and indicated that several federal courts recognized that the former decision still governs in the collective bargaining context. Id. at 887. Those courts finding to the contrary of Austin, some explicitly rejecting its reasoning, are numerous. See, e.g., Penny v United Parcel Service, 128 F3d 408, 414 (CA 6, 1997) (concluding that “an employee whose only obligation to arbitrate is contained in a collective bargaining agreement retains the right to obtain a judicial determination of his rights under a statute such as the ada”); Brisentine v Stone & Webster Engineering Corp, 117 F3d 519, 526 (CA 11, 1997) (explicitly rejecting the “result and reasoning of the Fourth Circuit” in Austin, and finding Judge Hall’s dissent more persuasive); Harrison v Eddy Potash, Inc, 112 F3d 1437, 1453 (CA 10, 1997) (adopting “the majority view . . . that Alexander and its progeny remain good law and that statutory employment claims are independent of a collective bargaining agreement’s grievance and arbitration procedures”) (citations and internal quotations omitted); Pryner v Tractor Supply Co, 109 F3d 354, 363 (CA 7, 1997) (applying Alexander and holding that “the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement” [emphasis in original]); Varner v Nat’l Super Markets, Inc, 94 F3d 1209 (CA 8, 1996); Tran v Tran, 54 F3d 115 (CA 2, 1995); Krahel v Owens-Brockway Glass Container, Inc, 971 F Supp 440 (D Or, 1997); Jackson v Quanex Corp, 889 F Supp 1007 (ED Mich, 1995). We agree with this vast majority of courts and hold that Alexander still controls in the circumstances herein presented. The concerns implicated by union-negotiated predispute agreements to arbitrate center on one key issue: the tension presented by the spectre of collective representation being the only method of enforcement of distinctly individual rights. See Gilmer, supra at 35. A thorough analysis of the potential problems associated with collective representation in the enforcement of individual rights is found in Pryner, supra at 360-363. There, Chief Judge Posner ultimately posits: The essential conflict is between majority and minority-rights. The collective bargaining agreement is the symbol and reality of a majoritarian conception of workers’ rights. An agreement negotiated by the union elected by a majority of the workers in the bargaining unit binds all the members of the unit, whether they are part of the majority or for that matter even members of the union entitled to vote for union leaders — they need not be. The statutory rights at issue in these two cases are rights given to members of minority groups because of concern about the mistreatment (of which there is a long history in the labor movement, see, e.g., Steele v Louisville & Nashville RR, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944)) of minorities by majorities. We may assume that the union will not engage in actionable discrimination against minority workers. But we may not assume that it will be highly sensitive to their special interests, which are the interests protected by Title VII and the other discrimination statutes, and will seek to vindicate those interests with maximum vigor. The employers’ position delivers the enforcement of the rights of these minorities into the hands of the majority, and we do not think that this result is consistent with the policy of these statutes or justified by the abstract desirability of allowing unions and employers to cut their own deals. And we are given no reason to believe that the ability of unionized workers to enforce their statutory rights outside of the grievance machinery established by collective bargaining agreements is undermining labor relations. [Id. at 362-363.] We agree with Chief Judge Posner’s excellent summary of the potentially conflict-laden relationship that would exist were the presently minority view of the Fourth Circuit Court of Appeals in Austin to become the majority rule. In Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), Justice Cavanagh’s plurality opinion discussed competing public policies that, with respect to the adjudication of civil rights claims, on the one hand favor the enforcement of agreements to arbitrate such claims, but on the other support the historical right to their determination in a judicial forum. Justice Cavanagh wrote: [T]he judicial remedies provision in Const 1963, art 5, § 29, along with the tone of the debates that produced that provision, reveal that an aggrieved individual’s access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive. When the civil liberty at stake is equal opportunity in the pursuit of employment, I believe that the Michigan Constitution prevents us from granting the defendant’s request to surgically sever the constitutional right to a judicial forum, hi short, I would find that an aggrieved individual’s access to a judicial forum to remedy violations of his nonnegotiable, constitutionally guaranteed, and legislatively articulated civil rights, is also a nonnegotiable state right. Accordingly, I would find that the people of Michigan and the Legislature intended to preclude prospective waivers of judicial remedies. [Heurtebise, supra at 435-436.] Though the recent special panel decision includes a passage rendering the force of this reasoning negligible in the context of individual employment contracts, Rembert, supra at 131, because of the potential conflicts just alluded to, Justice Cavanagh’s words still resonate in the context of collective bargaining agreements. In accord with the vast majority of jurisdictions, we conclude that because the union asserts control in the labor arbitration process and because the interests of the individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit, mandatory labor arbitration of civil rights claims is inappropriate. See Jackson, supra at 1011 (citing Alexander, supra at 58, n 19). Moreover, as we indicated in our previous decision, the application of collateral estoppel and res judicata to plaintiffs civil rights claims would effectively contravene this conclusion. Accordingly, we hold that the trial court erred in granting summary disposition of plaintiff’s statutory discrimination and retaliatory discharge claims. Were the distinctions between an agreement pursuant to a collective bargaining agreement and one included in an individual employment contract not reason enough to support our holding in this case, we note that we would otherwise rule that plaintiff can still pursue his statutory claims because the instant agreement clearly fails to satisfy one particular factor needed to meet the requirement of a fair arbitral process. Among other things, the arbitration proceedings must include clear notice to the employee that he is waiving the right to adjudicate discrimination claims in a judicial forum. Rembert, supra at 161. It was a deficiency in this regard, the lack of a “clear and unmistakable waiver,” that led the Supreme Court in Wright v Universal Maritime Service Corp, 525 US 70; 119 S Ct 391; 142 L Ed 2d 361 (1998), to recently decline to reach the question whether a waiver provision contained in a collective bargaining agreement should be enforceable. Id. at 77, 82. There, the Court found that the union-negotiated arbitration clause at issue was “very general, providing for arb

ZANNI v MEDAPHIS PHYSICIAN SERVICES CORPORATION Docket No. 206245. Submitted December 6, 1999, at Lansing. Decided April 11, 2000, at 9:05 A.M. Leave to appeal denied, 463 Mich_. Kimberly A. Zanni brought an action in the Macomb Circuit Court against Medaphis Physician Services Corporation and Leslie Fleming, alleging age discrimination in violation of the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. The plaintiff alleged that her employment had been terminated because she was too young and that older employees with similar job performances had not been terminated. The trial court, George E. Montgomery, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals, Doctoroff, P.J., and Smolensk and Whitbeck, JJ., affirmed the decision of the trial court, stating that it was constrained by MCR 7.215(H)(1) to follow Zoppi v Chrysler Corp, 206 Mich App 172 (1994), which held that an action for job discrimination did not exist under the cra where the basis for the alleged discrimination was that the plaintiff was too young, and that it would have reversed the decision of the trial court had it not been constrained to follow the holding in Zoppi. 237 Mich App 801 (1999). The Court of Appeals, following a poE of its judges, vacated the opinion in this case and convened a special panel to resolve the conflict that would have been created between the panels in Zoppi and this case but for the provisions of MCR 7.215(H)(1). 237 Mich App 801 (1999). After consideration by the conflict resolution panel, the Court of Appeals held: 1. Subsection 202(l)(a) of the cra, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a), provides that an employer shafl not discriminate against an individual with respect to employment because of age. Subsection 103(l)(a) of the cra, MCL 37.2103(l)(a); MSA 3.548(103)(l)(a), defines “age” as “chronological age except as otherwise provided by law.” The cra does not limit the concept of chronological age to a particular age group or in any way suggest that it was intended to be other than a general prohibition against discrimination on the basis of age, be it because one is perceived to be too old or is perceived to be too young. Holding that the cra age discrimination prohibition is equaEy apphcable to discrimination on the basis of youth as it is with discrimination on the basis of advancing age is consistent with the purpose of the cra, which seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Accordingly, the panel in Zoppi v Chrysler erred in concluding that the cra age discrimination prohibition was not applicable to claims based on an allegation of discrimination on the basis of one’s youth. 2. Because of the clear and unambiguous language of the statute and of the clear indication of legislative intent behind the statute, the decision of this resolution panel cannot be said to be unexpected or indefensible. Accordingly, the decision in this matter must be given full retroactive effect. Reversed. Civil Rights — Civil Rights Act — Age Discrimination. The Civil Rights Act was conceived to deter discrimination on the basis of age, whether it be discrimination on the basis that an individual is perceived to be too old or on the basis that an individual is perceived to be too young; accordingly, a claim properly may be brought under the Civil Rights Act where it is alleged that an individual was discriminated against on the basis of being perceived to be too young (MCL 37.2103[l][a], 37.2202[l][a]; MSA 3.548[103][l][a], 3.548[202][1][a]). Dwight Teachworth, for the plaintiff. Dykema Gossett PLLC (by Martin J. Galvin and James F. Hermon), for the defendants. Amicus Curiae: Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Victoria Reardon, Assistant Attorney General, for the Department of Civil Rights. Before: Griffin, P.J., and Holbrook, Jr., Kelly, Cavanagh, Fitzgerald, Markey and Wilder, JJ. Cavanagh, J. Pursuant to MCR 7.215(H)(3), this conflict panel was convened to resolve a conflict between this Court’s prior, vacated opinion in Zanni v Medaphis Physician Services Corp, 237 Mich App 801 (1999), and this Court’s earlier decision in Zoppi v Chrysler Corp, 206 Mich App 172; 520 NW2d 378 (1994). In accordance with MCR 7.215(H)(1), the prior Zanni panel was required to follow the precedent of Zoppi, supra. Were it not for MCR 7.215(H)(1), the previous panel would have reversed the decision of the lower court. This case involves a claim of age discrimination brought pursuant to the Civil Rights Act (cea), MCL 37.2101 et seq.; MSA 3.548(101) el seq. The previous panel set forth the pertinent facts of the case as follows: Plaintiff’s complaint contained the following allegations. Defendant Medaphis Physician Services Corporation hired plaintiff in 1985, later promoted her to the position of account executive, and then terminated her employment in 1996 because she lost two accounts and had “violated her employee plan.” A less qualified, older female replaced plaintiff on or about the same day her employment was terminated. Before her employment was terminated, plaintiff’s supervisor told plaintiff that her “voice sounded too young on the phone and that the clients wanted an older account executive.” Plaintiff also alleged that older account representatives who previously lost two or more accounts did not have their employment terminated for their actions and that she was treated differently from older employees because of her age rather than the quality of her work, in violation of the Civil Rights Act. Plaintiff was thirty-one years old when she filed the complaint in the present case. In short, plaintiff claims that defendants discriminated against her because she was too young. [Zanni, supra at 801-802.] Defendant moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that a claim for age discrimination because of the plaintiff’s youth does not exist under the CRA, and the trial court granted the motion. In Zoppi, supra, a panel of this Court held that a “plaintiff cannot establish an age discrimination case where his employer denied him special early retirement because he was too young.” Zoppi, supra at 176. The Zoppi Court concluded that the plaintiff in that case was “not a member of the protected class in a reverse age discrimination case under the Civil Rights Act in light of its intended purpose.” See id. at 175. The prior Zanni panel believed that the cra was intended to “prohibit employers from engaging in discriminatory practices against workers considered ‘too young’ as well as workers considered ‘too old,’ ” and therefore would have reversed the decision of the trial court in the present case, had it not been bound by Zoppi. Zanni, supra at 804-805. Thus, the question presented in this case is whether § 202 of the CRA, MCL 37.2202; MSA 3.548(202), provides protection to workers who are discriminated against because of their youth. Subsection 202(l)(a) of the CRA, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a), provides that an employer shall not discriminate “against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age.” Subsection 103(l)(a) of the CRA, MCL 37.2103(l)(a); MSA 3.548(103)(l)(a), defines “age” as “chronological age except as otherwise provided by law.” The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent and purpose of the Legislature. The first criterion in determining intent is the specific language of the statute. If statutory language is clear, judicial construction is normally neither necessary nor permitted, and the statute must be enforced as it is written. Michigan Municipal Liability & Property Pool v Muskegon Co Bd of Co Rd Comm’rs, 235 Mich App 183, 189-190; 597 NW2d 187 (1999). Like the previous Zanni panel, we conclude that the plain language of the statute provides no basis to limit the protections of § 202 to older workers. On the contrary, the statute refers in subsection 103(l)(a) to “chronological age,” without limiting its reach to any particular age group. Accordingly, as the earlier panel explained, age in the context of this case means a person’s chronological age. If an employer disfavors an employee because the employer perceives the employee as being too young, the employer has plainly disfavored that employee on the basis of the employee’s chronological age just as much as if the employer disfavored the employee for being perceived as too old. Thus, a proper understanding of the clear language of the applicable statutory definition of age would require a conclusion that the general prohibition of MCL 37.2202(l)(a); MSA 3.548(202)(l)(a) against age discrimination encompasses discrimination against an individual because an employer perceives that person as being too young. [Zanni, supra at 804.] We further agree with the previous panel that the Zoppi Court erred in relying on case law construing the federal Age Discrimination in Employment Act (adea), 29 USC 621 et seq. Unlike the cra, the adea limits the prohibitions against age discrimination “to individuals who are at least 40 years of age.” 29 USC 631(a). We decline to read a similar restriction into the CRA when the Legislature apparently chose not to do so. See Piper v Pettibone Corp, 450 Mich 565, 572; 542 NW2d 269 (1995) (stating that it is not within the province of this Court to read into a statute a mandate that the Legislature has not seen fit to incorporate); cf. Husted v Auto-Owners Ins Co, 459 Mich 500, 509; 591 NW2d 642 (1999) (“[T]he Legislature’s failure to adopt language contained in the uniform act creates a presumption that the corresponding language was considered and rejected.”). Accordingly, we hold that § 202 of the CRA protects workers who are discriminated against on the basis of their youth. We note that this result is consistent with the purpose of the cra, which seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. See Plieth v St Raymond Church, 210 Mich App 568, 573-574; 534 NW2d 164 (1995). While it is perhaps less common for younger employees to be judged on the basis of inaccurate stereotypes about their abilities, the potential nevertheless exists. Just as an older worker may be inaccurately perceived as less energetic and resistant to new ideas, a younger worker may be unfairly viewed as immature and unreliable, without regard for individual merits. Defendants urge that, if this Court finds that the CRA permits age discrimination claims in which an employee alleges discrimination on the basis of her youth, the ruling should be applied only prospectively. In discussing whether a Supreme Court opinion reversing a decision of this Court should be given retroactive application, the Supreme Court has stated: Only if this Court’s decision can be said to be “unexpected” or “indefensible” in light of the law in place at the time of the acts in question would there be a question about whether to afford the decision complete retroactivity. It can hardly be considered “unexpected” or “indefensible” that this Court would reverse a Court of Appeals decision that was contrary to the clear and unambiguous language of the statute, the legislative intent behind the statute, and two prior opinions of this Court. [Michigan Educational Employees Mut Ins Co v Morris, 460 Mich 180, 195; 596 NW2d 142 (1999) (citation omitted).] We believe that it likewise cannot be considered “unexpected” or “indefensible” that a conflict panel in this Court would overrule an earlier decision that was contrary to the clear and unambiguous language of a statute. Accordingly, we hold that our decision today is to be given full retroactive effect. Reversed. Of course, employers are still free to discriminate among workers on the basis of factors, such as experience and education, that are often correlated with age. See Plieth, supra at 573.