Failure to Accommodate Cases

LOWN v JJ EATON PLACE Docket No. 205937. Submitted March 2, 1999, at Lansing. Decided June 4, 1999, at 9:05 am. Leave to appeal sought. Joyce Lown brought an action in the Eaton Circuit Court against JJ Eaton Place, her former employer, alleging that endometriosis and a restriction placed on her by her physician against lifting more than fifteen pounds after surgery constituted a disability under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and that the defendant terminated her employment as a cook in violation of the pwdcra when she refused to perform dishwashing duties that would have involved lifting items weighing more than fifteen pounds. At the hearing on the defendant’s motion for summary disposition, the plaintiff orally requested to be allowed to amend her complaint to allege other disabilities. The court, Calvin E. Osterhaven, J., denied the motion to amend and granted summary disposition for the defendant, ruling that the plaintiff was not disabled within the meaning of the pwdcra. The plaintiff appealed. The Court of Appeals held: 1. The issue regarding the trial court’s denial of the plaintiff’s request to amend her complaint is not preserved for appeal in the absence of a written order or judgment by the trial court denying the request. In any event, because the plaintiff failed to comply with the requirement of MCR 2.118(A)(4) that the amendment be in writing, the trial court did not abuse its discretion in denying the plaintiffs request. 2. The trial court did not err in granting summary disposition for the defendant. A handicap, for purposes of the pwdcra, is a physical or mental impairment that substantially limits one or more major life activities and is unrelated to an individual’s ability to perform the duties of a particular job or position or to the individual’s qualifications for employment or promotion. In this case, the plaintiff failed to show that her lifting restriction substantially limited the major life activity of lifting or working. Affirmed. 1. Civil Rights — Persons with Disabilities — Employment Discrimination — Prima Facie Case. A plaintiff seeking to establish a prima facie case of employment discrimination under the Persons with Disabilities Civil Rights Act must demonstrate that the plaintiff is disabled as defined by the act, that the disability is unrelated to the plaintiff’s ability to perform the duties of a particular job, and that the plaintiff was discriminated against in one of the ways described in the statute (MCL 37.1101 et seg.; MSA 3.550(101] et seg.). 2. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Major Life Activities. A disability, for purposes of the employment discrimination provisions of the Persons with Disabilities Civil Rights Act, is a determinable physical or mental characteristic that substantially limits one or more of the mqjor life activities of the individual having the disability and is unrelated to the individual’s ability to perform the duties of a particular job or position or to the individual’s qualifications for employment or promotion; whether an impairment substantially limits a major life activity is determined in light of the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term effect (MCL 37.1103[d][i][A]; MSA 3.550(103][d][i][A]). 3. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Lifting Restrictions. A medical restriction limiting the amount of weight an employee may lift constitutes a disability under the Persons with Disabilities Civil Rights Act when it imposes substantial limitations on the employee’s ability to perform the normal activities of daily living; a lifting restriction of twenty-five pounds is not a substantial limitation and does not constitute a disability under the act (MCL 37.1103[d][i][A]; MSA 3.550(103][d][i][A]). 4. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Major Life Activities. Working, in the absence of any other major life activity that is substantially limited by an individual’s disability, may be considered a major life activity for purposes of the employment discrimination provisions of the Persons with Disabilities Civil Rights Act; a substantial limitation on the major life activity of working is shown upon a demonstration that the individual is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities; an impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease the individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the major life activity of working (MCL 37.1103[d][i][A]; MSA 3.550[103][D][i][A]). Rapaport, Pollok, Farrell & Waldron, PC. (by Mark S. Farrell), for the plaintiff. Murphy, Brenton & Spagnuolo, PC. (by Michael S. Wellman), for the defendant. Before: Cavanagh, P.J., and Mackenzie and McDonald, JJ. Cavanagh, P.J. Plaintiff Joyce Lown appeals as of right the trial court order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10) in this action under the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq. We affirm. Defendant JJ Eaton Place is a restaurant owned in part by Deanne Davis. In July 1994, Davis hired plaintiff as a prep cook. At that time, plaintiff told Davis that she had “physical problems” that caused her to suffer intermittent pain and cramps. In August 1994, plaintiff was diagnosed with endometriosis. That same month, plaintiff underwent surgery. When she returned to work, plaintiff submitted a note from Dr. Paul Kelly dated August 17, 1994, which stated that plaintiff could “do no heavy lifting or bending until after her 1 month post operative check up.” Plaintiff’s duties as a prep cook never caused her any difficulties. Plaintiff testified that she often received help lifting heavy objects, such as bags of onions or carrots. When no assistance was available, plaintiff would make multiple trips with smaller loads. However, periodically during her employment with defendant, plaintiff was required to work as a dishwasher. Plaintiff had no problems when she had help in the dish room, but when assigned to work by herself, she experienced pain while carrying large tubs of dirty dishes and stacks of clean dishes. Plaintiff nevertheless did the work because she was afraid that she would be fired if she refused. When plaintiff arrived at work the morning of March 27, 1995, she was told by another employee that she would be working alone in the dish room that day. Plaintiff called Davis at home to tell Davis that she could not work in the dish room by herself for eight hours because she had “been up all night hurting.” Davis told plaintiff that she had to work in the dish room because several other employees were out sick. After plaintiff refused to do so, Davis told her to go home. When plaintiff returned to work several days later, she discovered that she had been fired. On October 18, 1996, plaintiff filed her complaint in the instant case. Plaintiff alleged that she was disabled within the meaning of the PWDCRA because she “suffers from endometriosis, which causes her pain in the abdomen and which restricts her ability to lift.” Plaintiff further alleged that defendant discharged her because of her status as a disabled individual, even though her disability was unrelated to her ability to perform her job, and that defendant had not discharged other, nondisabled individuals for refusing to perform dishwashing duties. On June 24, 1997, defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the basis that plaintiff had not established that she had a disability as defined in the pwdcra. Defendant conceded that plaintiff had endometriosis, but asserted that plaintiff was not disabled within the meaning of the PWDCRA because her endometriosis did not substantially limit any major life activities. Following oral argument, the trial court held that plaintiff was not disabled under the pwdcra and therefore granted defendant’s motion for summary disposition. I Plaintiff first argues that the trial court erred in refusing to allow her to amend her complaint. Plaintiff presented notes prepared by a physician, dated May 7, 1994, stating that plaintiff “has a mild speech defect and abnormal facies, almost like Down’s but no clue [sic] that she has any intellectual limitations.” In a brief opposing defendant’s motion for summary disposition, plaintiff anticipated that she would be seeking leave to amend her complaint to allege discrimination based on plaintiff’s speech defect, abnormal facies, and possible intellectual limitations. At the hearing regarding defendant’s motion for summary disposition, plaintiff orally requested leave to amend her complaint, and the trial court denied the request in the same manner. Plaintiff asserts that the trial court abused its discretion in refusing to allow her to amend her complaint. However, we conclude that this issue is not properly before this Court because no written order or judgment was entered by the trial court on plaintiffs request to amend her complaint. A court speaks through its orders, and the jurisdiction of this Court is confined to judgments and orders. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 54; 436 NW2d 70 (1989). In any case, pursuant to MCR 2.118(A)(4), amendments must be in writing. In the instant case, the request to amend was oral, and plaintiff never offered any written amendments. Accordingly, because plaintiff did not comply with the court rule, the trial court did not abuse its discretion in denying the request to amend. See Burse v Wayne Co Medical Examiner, 151 Mich App 761, 768; 391 NW2d 479 (1986). II Plaintiff next argues that the trial court erred in granting defendant’s motion for summary disposition. On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Moore v First Security Casualty Co, 224 Mich App 370, 375; 568 NW2d 841 (1997). To establish a prima facie case of discrimination under the pwdcra, a plaintiff must demonstrate (1) that she is disabled as defined by the pwdcra, (2) that the disability is unrelated to her ability to perform the duties of a particular job, and (3) that she was discriminated against in one of the ways described in the statute. Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998). The pwdcra defines a “disability” as 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, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(d)(i); MSA 3.550(103)(d)(i) (emphasis added).] On appeal, plaintiff argues that the trial court erred in finding that she was not disabled under the pwdcra. Plaintiff asserts that she is substantially limited in the major life activity of lifting. In contrast, defendant argues that lifting does not constitute a “major life activity” under the PWDCRA. This Court has previously looked to the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 for guidance in construing the terms “substantially limits” and “major life activities” as used in the pwdcra. See Stevens v Inland Waters, Inc, 220 Mich App 212, 217; 559 NW2d 61 (1996). For the purpose of interpreting the pwdcra, the Stevens Court relied on federal administrative regulations to define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” See id. at 217. Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term effect. Id. at 218. Defendant contends that “lifting” cannot be a major life activity under the PWDCRA because it was not specifically mentioned as such in Stevens. We disagree. In Stevens, this Court adopted a nonexclusive list of functions that would constitute major life activities under federal regulations. Thus, the fact that lifting is not explicitly included in the list of major life activities in Stevens is not dispositive. In Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998), our Supreme Court examined lifting in the context of a pwdcra claim based on the plaintiffs pregnancy. The Court held that a “restriction limiting [the] plaintiff’s lifting abilities to twenty-five pounds is not a substantial impairment of a major life activity,” and therefore the plaintiff had not stated a claim under the PWDCRA. See id. at 9. However, the Court focused on whether the plaintiff had demonstrated a substantial impairment of a major life activity and did not address whether lifting itself constitutes a major life activity. Accordingly, we look to federal regulations and case law for guidance. The interpretative guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) state: “Major life activities” are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting, reaching. [29 CFR 1630.2(f), Appendix (emphasis added).] Federal courts, relying on these guidelines, have concluded that lifting constitutes a major life activity. See, e.g., Gutridge v Clure, 153 F3d 898, 901 (CA 8, 1998); Ray v Glidden Co, 85 F3d 227, 229 (CA 5, 1996); Dutcher v Ingalls Shipbuilding, 53 F3d 723, 726, n 7 (CA 5, 1995); Frix v Florida Tile Industries, Inc, 970 F Supp 1027, 1033 (ND Ga, 1997). Nevertheless, federal courts have held that where the major life activity is lifting, a general lifting restriction, without more, is insufficient to constitute a disability within the meaning of the ada. See, e.g., Gutridge, supra; Zarzycki v United Technologies Corp, 30 F Supp 2d 283, 289 (D Conn, 1998). The Fourth, Fifth, Eighth, and Ninth Circuit Courts of Appeals have held individuals who were limited to lifting less than twenty-five pounds were not, as a matter of law, disabled. See Thompson v Holy Family Hosp, 121 F3d 537, 539-540 (CA 9, 1997); Williams v Channel Master Satellite Systems, Inc, 101 F3d 346, 349 (CA 4, 1996); Aucutt v Six Flags Over Mid-America, Inc, 85 F3d 1311, 1319 (CA 8, 1996); Ray, supra. In those cases, the courts essentially concluded that such a limitation is not significant when compared to the limitations and abilities of the general population. Where the weight restriction is less than twenty-five pounds, several federal courts have indicated that evidence other than the mere existence of the restriction must be presented to create a genuine issue of material fact regarding whether the impairment imposes substantial limitations on major life activities other than work. See Helfter v United Parcel Service, Inc, 115 F3d 613, 617 (CA 8, 1997); Hilburn v Murata Electronics North America, Inc, 17 F Supp 2d 1377, 1382 (ND Ga, 1998) (“A mere assertion of diminished capacity does not constitute a disability under the ADA.”). We find an inherent inconsistency in the approach followed by those federal courts that have held that lifting is a major life activity under the ADA, but then concluded that a lifting restriction alone is insufficient to trigger the protections of that statute, given that the ADA defines a disability as an “impairment that substantially limits one or more of the major life activities of such individual.” See 42 USC 12102(2). The PWDCRA, like the ADA, requires that a disability “substantially limit]] 1 or more of the major life activities of [an] individual,” MCL 37.1103(d)(i); MSA 3.550(103)(d)(i). This Court has stated that whether an impairment substantially limits a major life activity is determined in part by the nature and severity of the impairment. Stevens, supra. “It is not enough that an impairment affect a major life activity; the plaintiff must proffer evidence from which a reasonable inference can be drawn that such activity is substantially or materially limiting.” Snow v Ridgeview Medical Center, 128 F3d 1201, 1207 (CA 8, 1997). Thus, a plaintiff seeking to recover under the statute has the burden of providing some evidence from which a factfinder could conclude that her disability caused substantial limitations when compared to the average person. See id. Nonwork major life activities are examined in light of whether the person can perform the normal activities of daily living. Pryor v Trane Co, 138 F3d 1024, 1027 (CA 5, 1998); Ray, supra at 229; Dutcher, supra at 726. Therefore, we hold that a lifting restriction constitutes a disability under the PWDcra when it imposes substantial limitations on an individual’s ability to perform the normal activities of daily living. Here, viewing the evidence in the light most favorable to plaintiff and granting her the benefit of all reasonable doubt, we conclude that plaintiff did not establish the existence of a genuine issue of material fact regarding the existence of a disability that would entitle her to the protection of the pwdcra. The medical proofs, at best, establish a temporary lifting restriction that commenced after plaintiff underwent surgery in August 1994. In sworn answers to interrogatories, plaintiff stated that she was restricted from lifting over ten to fifteen pounds from August 1994 through August 1996. At the time of plaintiff’s deposition on May 20, 1997, she was able to lift objects weighing up to twenty-five pounds. Federal courts have held that evidence of a twenty-five-pound lifting limitation does not suffice to establish a genuine issue of a material fact regarding the existence of a disability because it is not a substantial limitation when compared to the average person. See Thomp son, supra; Williams, supra; Aucutt, supra; Ray, supra. We adopt this holding, which is consistent with the result reached by our Supreme Court in Koester, supra. Accordingly, the fact that plaintiff is unable to lift more than twenty-five pounds does not establish that she is disabled within the meaning of the PWDCRA. Thus, the evidence establishes only that plaintiff had a temporary lifting restriction of no more than ten to fifteen pounds, which was in place for two years. As a general rule, “[intermittent, episodic impairments are not disabilities, the standard example being a broken leg.” Vande Zande v Wisconsin Dep’t of Administration, 44 F3d 538, 544 (CA 7, 1995), citing 29 CFR 1630.2Q), Appendix. Federal courts have not delineated the precise moment when a “temporary

REMBERT v RYAN’S FAMILY STEAK HOUSES, INC Docket No. 196542. Submitted June 1, 1998, at Lansing. Decided April 9, 1999, at 9:15 A.M. Leave to appeal sought. John Rembert brought an action in the Genesee Circuit Court against Ryan’s Family Steak Houses, Inc., his employer, and another, seeking damages for race discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and handicap discrimination under what is now known as the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The plaintiff thereafter resigned from his employment and amended his complaint to include claims of constructive discharge and intentional infliction of emotional distress. The court, Geoffrey L. Neithercut, X, after finding that the plaintiff had failed to establish that he was incompetent to understand the arbitration agreement that he had signed at the time of his employment, granted summary disposition for the defendants on the basis that the claims raised by the plaintiff were subject to, and thus barred by, the arbitration agreement. The plaintiff appealed. The Court of Appeals, Corrigan, C.J., and Griffin and Hoekstra, JX, in an opinion released December 2, 1997, affirmed the trial court’s order with respect to the claims of constructive discharge and intentional infliction of emotional distress, but reversed the trial court’s order with respect to the two statute-based discrimination claims on the basis of the holding of the majority in Rushton v Meijer, Inc (On Remand), 225 Mich App 156 (1997), which was binding precedent pursuant to MCR 7.215(H). The panel further indicated that in the absence of the requirement that it follow the holding of the majority in Rush-ton, it would have affirmed the order of the trial court for the reasons set forth in Judge (now Justice) Taylor’s opinion in Rushton. 226 Mich App 822 (1997). By its order of December 16, 1997, the Court of Appeals vacated the December 2 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in this case and the position taken by the majority in Rushton. 226 Mich App 821 (1997). After consideration by the conflict resolution panel, the Court of Appeals held-. 1. The Michigan Legislature, by enacting the Michigan arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq., has expressed a strong public policy favoring private voluntary arbitration, and Michigan courts have historically enforced agreements to arbitrate disputes. Michigan law has upheld predispute agreements to arbitrate statutory claims where the agreements have not diminished the effect of the statute. 2. Because of this state’s strong public policy favoring arbitration, predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 3. If an agreement to arbitrate a statutory employment discrimination claim does not waive any statutory rights and provides a procedurally fair method of resolving such claims, it is reasonable as a matter of law and is not an unenforceable contract of adhesion. Accordingly, on remand the trial court must make findings of fact concerning whether the agreement in this matter waives any statutory rights and provides a procedurally fair method of resolving the statutory claims. 4. Neither the Civil Rights Act nor the Persons With Disabilities Civil Rights Act contains a provision that precludes an employer and employee from entering into a predispute agreement to arbitrate employment discrimination claims that may arise under those acts. Further, because the Michigan arbitration act gives broad approval to arbitration agreements and expressly excludes collective labor contracts and certain real estate disputes from its provisions while containing no similar exclusion with respect to statutory employment discrimination claims, the act implicitly includes agreements to arbitrate employment discrimination claims within the scope of its provisions. 5. In order to ensure that an employee has a fair opportunity to vindicate effectively any statutorily protected rights, a predispute agreement to arbitrate employment discrimination claims must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing. Fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. 6. Judicial review of an arbitral award is pursuant to the provisions of MCR 3.602(J)(1), which provides for the vacation of an award where, among other things, the arbitrator has exceeded the powers granted to the arbitrator. The powers granted to the arbitrator are exceeded where the arbitrator makes an error of law that is so material or so substantial as to have governed the award and but for which the award would have been substantially otherwise. To allow for sufficient review, arbitral awards must be in writing and contain findings of fact and conclusions of law. Remanded. Cavanagh, J., dissenting, stated that the decision of the trial court that direct judicial construction of the statutory claims was precluded by the predispute arbitration agreement should be reversed because Michigan’s longstanding public policy entitling persons seeking to protect their civil rights to direct review of their claims by the courts cannot be abrogated by contract. 1. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate. Predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 2. Arbitration — Civil Rights Act — Persons With Disabilities Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim under the Civil Rights Act or the Persons With Disabilities Civil Rights Act to be submitted to binding arbitration is not contrary to any express provision of either act and is not contrary to the public policy of the state of Michigan (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 3. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate — Contracts of Adhesion. An agreement to arbitrate a statutory employment discrimination claim that does not waive any statutory rights and provides a procedurally fair method of resolving such a claim is reasonable as a matter of law and is not an unenforceable contract of adhesion. 4. Arbitration — Employment Contracts — Employment Discrimination — Agreement to Arbitrate. An agreement in an employment contract to arbitrate any subsequent employment discrimination claims that may arise must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing; fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. Stark and Gordon (by Sheldon J. Stark and Carol A. Laughbawn) and (Kenneth Ivan Brown, of Counsel), for the plaintiff. Bodman, Longley & Dahling LLP (by Diane L. Akers, and Paul R. Bernard), for the defendants. Amici Curiae: Jeffrey S. Reuble and Miller, Canfield, Paddock and Stone, PL.C. (by Charles S. Mishkind), for Meijer, Inc. Jackson, Lewis, Schnitzler & Krupman (by Stephen X. Munger and by J. Steve Warren and Stephen F. Fisher), for Employment Dispute Services, Inc. Clark Hill PL.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Dykema Gosssett PLLC (by Laurence D. Connor and Rosemary G. Schikora) and Richard L. Hurford, for Masco Corporation, Masco Tech, and TriMas. Patrick L. Rose, Thomas Donnellan, Sheldon J. Stark, and Michael J. Steinberg, for American Civil Liberties Union Fund of Michigan. Amberg, McNenly, Zuschlag, Firestone and Lee, PC. (by Joseph H. Firestone), for Michigan Education Association. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, PC. (by John R. Runyan, Jr., Mary Katherine Norton, and Elizabeth A. Cabot), for Michigan State AFL-CIO, International Union UAW, and Wolverine Bar Association. Kelman, Loria, Simpson, Will, Harvey & Thompson (by Janet M. Tooley), for Michigan Trial Lawyers Association. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., Assistant Attorney General, for Michigan Department of Civil Rights. Before: Gage, P.J., and Kelly, Hood, McDonald, Cavanagh, Saad, and O’Connell, JJ. Saad, J. I. NATURE OF THE CASE This conflicts panel was convened to decide if a predispute agreement to arbitrate statutory employment discrimination claims arising under the Michigan Civil Rights Act (cra) and the Persons With Disabilities Civil Rights Act (pwdcra) is valid and enforceable. In Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), this Court held that this kind of predispute agreement is invalid as a matter of public policy. Contrary to Rushton’s holding, the overwhelming majority of federal and other state courts have held that these agreements are enforceable, provided that the arbitration procedures are fair and the agreement waives no substantive rights and remedies. We join the majority of courts and hold that as long as no rights or remedies accorded by the statute are waived, and as long as the procedure is fair, employers may contract with their employees to arbitrate statutory civil rights claims. Our holding breaks no new ground, but rather is consistent with our state’s public policy, and federal public policy, both of which increasingly and overwhelmingly favor arbitration as an inexpensive and expeditious alternative to litigation. Specifically, our holding furthers the objectives of the Michigan arbitration act (maa), which is a strong and unequivocal legislative expression of Michigan’s proarbitration public policy. In accordance with the maa’s endorsement of arbitration, and the cra’s and the pwdcra’s silence regarding the matter, we will not interfere with private parties’ contractual undertakings to arbitrate these claims. Our opinion is also consistent with the traditional principles of freedom of contract in the employment context. Clearly, employers are free to condition employment on employer-drafted wage and benefit structures and work rules as long as they comply with applicable statutory and common-law mandates. Similarly, we hold that employers are also free to require arbitration of claims as a condition of employment, provided that the agreement complies with our holding here. While our decision upholds the principle of freedom of contract and advances the public policy that strongly favors arbitration, it does so subject to two conditions generally accepted in the common law: that the agreement waives no substantive rights, and that the agreement affords fair procedures. These conditions are rooted in two critically important bases: (1) our Supreme Court’s decision in Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), which held that agreements to arbitrate employment claims must have fair procedures, and (2) Michigan and federal decisions (which generally have been held to be persuasive authority in Michigan employment discrimination cases) that uniformly hold that these arbitration agreements may not waive any substantive rights or remedies provided by the statute and must provide for fair procedures. With regard to procedural fairness, we will also detail below the specific procedural safeguards that we believe are mandated by Penny's requirement of fair procedures. Additionally, as we discuss below, contracts providing for compulsory arbitration of discrimination claims must, of course, meet the general rules regarding the validity of contracts. Although other contractual issues raised in this case are beyond the scope of this conflicts panel, we do hold, as a matter of law, that an arbitration agreement that does not diminish the rights and remedies guaranteed by the relevant employment discrimination statute and that is fair procedurally is not an unenforceable contract of adhesion. After discussing the facts, we will analyze the issues in the following sequence. We begin by discussing the prevailing public policy favoring arbitration that is evidenced in both Michigan and federal law. We then address how this proarbitration policy developed to include claims arising under public interest statutes and trace that development to judicial approval of predispute agreements to arbitrate statutory civil rights claims. Thereafter, we examine the necessary conditions for enforcement of these agreements: (1) a valid arbitration contract, (2) the absence of statutory prohibition against arbitrating particular statutory claims, and (3) the requirements of procedural fairness. Finally, we set forth the specific requirements for procedural fairness and define the standard of review. II. FACTS AND PROCEEDINGS Defendant Ryan’s Family Steak Houses, Inc., hired plaintiff as a bread maker in October 1993. At the time he was hired, plaintiff signed an arbitration agreement with Employment Dispute Services, Inc. (eds). The arbitration agreement provided, in pertinent part: Your potential Employer (“signatory company” or “Company”) has entered into an agreement with Employment Dispute Services, Inc. (eds) to arbitrate and resolve any and all employment-related disputes between the Company’s employees (and job applicants) and the Company. The following Agreement between You and eds is a “selection of forum” agreement by which you agree that employment-related disputes between You and the Company shall be resolved through arbitration. Any arbitration matter shall be heard and decided under the provisions and the authority of the Federal Arbitration Act, 9 USC sec. 1, as applicable. The purpose of this agreement is to provide You and the Company a forum in which claims or disputes with the Company and any other signatories may be resolved by arbitration rather than litigation. This Agreement does not restrict you from filing a claim or charge with any state or federal agency, for example, Equal Employment Opportunity Commission, state unemployment agency, state workers’ compensation commission, where applicable. Rather, the Agreement applies only to State or Federal court proceedings. While an employee with Ryan’s Family Steak Houses, Inc., plaintiff sued defendants in the circuit court for race discrimination under the CRA and handicap discrimination under the pwdcra (then known as the Michigan Handicappers’ Civil Rights Act). Plaintiff alleged that he suffers from epilepsy and cognitive defects resulting from a head injury. Plaintiff made a variety of allegations relating to discrimination in the terms of his employment. Plaintiff subsequently resigned his employment and amended his complaint to include a charge of constructive discharge. Plaintiff also raised a common-law claim of intentional infliction of emotional distress. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) (agreement to arbitrate) based on the signed arbitration agreement. After ruling that plaintiff had failed to establish that he was incompetent to understand the agreement he had signed, the trial court granted defendants’ motion. Plaintiff appealed. Meanwhile, a majority of a panel of this Court decided in Rushton, supra, that agreements to arbitrate employment-related discrimination claims were unenforceable as a matter of public policy. A panel of this Court therefore reversed the trial court’s order in this case because it was obligated to follow Rushton under MCR 7.215(H)(1). Rembert v Ryan’s Family Steakhouse, Inc, 226 Mich App 821; 575 NW2d 287 (1997) (Rembert I). The Rembert I panel opined that it reversed the trial court’s order only because it was obligated to follow Rushton and that it would have held otherwise if free to do so. The Court thereby invoked the conflicts panel provision under MCR 7.215(H). Pursuant to MCR 7.215(H), Rembert I was vacated, 226 Mich App 821-822, and this special conflicts panel was convened to resolve the conflict. III. ANALYSIS A. MICHIGAN AND FEDERAL LAW ENDORSE ARBITRATION 1. MICHIGAN COMMON LAW AND STATUTORY LAW STRONGLY FAVOR ARBITRATION Our Legislature has expressed a strong public policy favoring private voluntary arbitration, and our courts have historically enforced agreements to arbitrate disputes. As early as the nineteenth century, our Supreme Court held: “A parol submission to arbitration is good at common law, and is not forbidden by any statute. ... If [the parties submitted their agreement to a common arbiter], it would be a valid award.” Cady v Walker, 62 Mich 157, 159; 28 NW 805 (1886). See also Hoste v Dalton, 137 Mich 522, 526; 100 NW 750 (1904) (rejecting various arguments against enforcement of arbitration), and Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944) (“The general policy of this State is favorable to arbitration. ... If parties desire arbitration, courts should encourage them.”). Judicial approval of arbitration has broadened and strengthened in recent decades. This Court stated in EE Tripp Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 246-247; 230 NW2d 556 (1975): The heavily case-loaded courts are no longer jealous of their jurisdiction. Where the parties, by a fair agreement, have adopted a speedy and inexpensive means by which to have their disagreements adjusted, we see no public policy reasons for the courts to stand in their way. On the contrary we have a clear expression of public policy in the legislative enactments which provide for statutory arbitration. [Emphasis supplied.] Judicial approbation of arbitration has grown and now applies to many fields. For example, in the important area of medical malpractice, our Court, in Cox v D'Addario, 225 Mich App 113, 129-130; 570 NW2d 284 (1997), upheld an arbitration agreement as valid under Michigan’s medical malpractice act because “the public policy of this state favors the enforcement of valid arbitration agreements.” Further, in Moss v Dep’t of Mental Health, 159 Mich App 257, 264; 406 NW2d 203 (1987), involving statutory and contract rights of mental health provider employees, our Court held that arbitration was not an “unconstitutional intrusion upon the powers of the judiciary,” but rather is a “well-established mechanism for dispute resolution which is highly favored by the courts.” In FJ Siller & Co v City of Hart, 400 Mich 578, 581-582; 255 NW2d 347 (1977), our Supreme Court declined to interpret an agreement to arbitrate a construction contract dispute as meaning that arbitration was merely a “condition precedent”

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Submitted October 15, 1998, at Lansing. Decided January 29, 1999, at 9:10 A.M. Barbara A. Lamoria brought an action in the Saginaw Circuit Court against Health Care & Retirement Corporation and others, seeking damages for her alleged wrongful discharge from her employment as a registered nurse at a retirement home owned by the corporate defendant. Among the theories of recovery pleaded by the plaintiff were violation of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., violation of the state Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and retaliation for the plaintiffs seeking worker’s compensation benefits. The plaintiff had injured her knee in the course of her employment and was discharged from her employment eleven months after her injury while she was still on an extended medical leave related to the knee injury, allegedly on the basis of an employment policy providing that medical leaves of absence were not to exceed six months. The plaintiff alleged that the defendant’s’ failure to extend her medical leave violated the provisions of the hcra because by such failure the defendant failed to malee reasonable accommodation for the handicap that she suffered as a result of her injured knee. The court, Leopold P. Borrello, J., granted summary disposition for the defendants with respect to all of the plaintiff’s claims, finding that the plaintiff did not have a valid claim under the hcra because the alleged handicap was related to the plaintiff’s ability to do her job and that the defendants were not required to give the plaintiff more time to heal. The plaintiff appealed. The Court of Appeals, O’Connell and Whitbeck, JJ. (Fttzserald, P.J., concurring), in an opinion released July 10, 1998, reversed the trial court’s grant of summary disposition with respect to the claims alleging violation of the Civil Rights Act and retaliation for filing a worker’s compensation claim on the basis that there were contested issues of material fact and reversed with respect to the hcra claim on the basis that it was required by MCR 7.215(H) to follow the holding in Rymar v Michigan Bell Telephone Co, 190 Mich App 504 (1991), although the majority opinion expressed disagreement with the holding in Rymar. 230 Mich App 801, 812-817 (1998). By its order of July 24, 1998, the Court of Appeals vacated the July 10 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in the Lamoria opinion and the position taken by the panel in the Rymar opinion. 230 Mich App 801 (1998). After consideration by the conflict resolution panel, the Court of Appeals held: The majority opinion in Lamoria properly concluded that the hcra does not require that an employer allow a disabled employee a reasonable time to heal before applying the provision in the hcra that limits its application to handicaps that are unrelated to an employee’s ability to perform the duties of a particular job or position. Accordingly, the trial court’s grant of summary disposition for the defendants with respect to the plaintiffs hcra claim must be affirmed. In all other respects, the opinion of the prior Lamoria panel is adopted. Affirmed in part and reversed in part. Cavanagh, J., concurring, stated that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance. Civil Rights — Handicappers’ Civil Rights Act — Temporary Disabilities — Employment Discrmnation. A person who is unable to perform the duties of a particular position because of a temporary disability, even if that disability could be remedied within a reasonable period so that the person would be able to perform those duties, does not have a handicap for which that person may seek the protections against employment discrimination provided by the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Howard & Howard Attorneys, P.C. (by Michael J. Brown), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Eric J. Pelton and Noel D. Massie), for the defendants. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Before: Corrigan, C.J., and Kelly, Gribbs, McDonald, Doctoroff, Cavanagh, and Markey, JJ. Per Curiam. This Court convened this special panel under MCR 7.215(H)(3) to resolve the conflict between the prior vacated opinion in this case, Lamoria v Health Care & Retirement Corp, 230 Mich App 801; 584 NW2d 589 (1998), and Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), regarding the “reasonable time to heal” doctrine under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The original Lamoria panel, in compliance with MCR 7.215(H)(1), followed this Court’s holding in Rymar that an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the hcra if he would have regained the capacity to do the work within a reasonable time. If not for the precedential effect of Rymar, the Lamoria majority would have affirmed the trial court’s grant of summary disposition for defendants regarding plaintiff’s HCRA claim. We agree with the Lamoria majority and hold for the reasons it expressed that the hcra does not require that an employer allow a disabled employee a reasonable time to heal. We therefore affirm the trial court’s grant of summary disposition regarding plaintiff’s HCRA claim. In all other respects, we adopt the opinion of the prior Lamoria panel as our own. Affirmed in part and reversed in part. Plaintiff, as the prevailing party, may tax costs under MCR 7.219. Judge Fitzgerald concurred, but wrote separately to express his belief that Rymar was correctly decided. Cavanagh, J. (concurring). I concur in the result reached by the majority. Even assuming that a temporary disability constitutes a handicap within the meaning of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.] MSA 3.550(101) et seq., I believe that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance in making decisions in situations such as that presented in the instant case.

MICHAEL HARVELL, Plaintiff v. NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC., Defendant No. COA98-396 (Filed 19 January 1999) Employer and Employee— Family and Medical Leave Act— worksites for field representatives The worksites for field representatives of the NCAE are their branch offices rather than the NCAE headquarters in Raleigh for the purpose of determining whether the NCAE had fifty or more employees within seventy-five miles of its headquarters and was thus subject to the Family and Medical Leave Act at its headquarters worksite. Appeal by plaintiff from judgment entered 29 October 1997 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 29 October 1998. Akins, Hunt & Fearon, P.L.L.C., by Donald G. Hunt, Jr., for plaintiff-appellant. Allen & Pinnix, P.A., by M. Jackson Nichols, for defendant-appellee. WALKER, Judge. Defendant North Carolina Association of Educators, Inc. (NCAE) is a non-profit corporation that is a member association providing services to North Carolina teachers who have voluntarily joined. Plaintiff was hired by defendant as a network systems programmer in May 1995. In June 1996, plaintiff’s wife was pregnant and he requested twelve weeks of unpaid leave under the Family and Medical Leave Act (FMLA) by sending the request to his supervisor, William Newkirk. On 31 July 1996, he sent his request for leave to John Wilson, NCAE’s Executive Director. After discussions, on 9 September 1996, Newkirk confirmed in writing the granting of plaintiffs leave request from 3 September 1996 until 3 November 1996. Newkirk also stated in the letter that “. . . employment of any sort while on FMLA time off is prohibited.” Plaintiffs leave of absence began on 3 September 1996 and at his request, plaintiff was allowed to exhaust the 12 days of his annual leave, 13 days of his sick leave, 5 days of compensatory leave, and 3 days of personal leave before going on unpaid leave on 16 October 1996. On 30 October 1996, the parties met and agreed that plaintiff would return to work on 2 January 1997. On 15 November 1996, plaintiff requested that the prohibition on secondary employment during his leave be removed. His request was granted; however, plaintiff testified that he did not seek any secondary employment from the date the restriction was removed until he returned to work. He also testified that he received at least two offers for work prior to the restriction being removed but he was unable to accept either of them. Plaintiffs employment was terminated by defendant in March 1997, which is not at issue in this case. After his dismissal, plaintiff filed a complaint with the United States Department of Labor (USDOL) concerning an alleged FMLA violation by defendant for prohibiting him from working during his period of leave. During the USDOL’s investigation, NCAE was informed that it was not subject to FMLA because it did not have 50 employees within 75 miles of the NCAE headquarters. On 9 May 1997, plaintiff filed this action alleging that defendant violated FMLA. Defendant moved to dismiss under Rule 12(b)(6) which was converted to a motion for summary judgment. On 29 October 1997, the trial court ordered that defendant was entitled to summary judgment because there was “no material issue as to the material fact of whether Defendant NCAE employs less than 50 employees within 75 miles of the Raleigh headquarters worksite.” On appeal, plaintiff contends the trial court erred when it granted summary judgment for defendant. A motion for summary judgment “is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” Thompson v. Three Guys Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583, 585 (1996) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). The party moving for summary judgment bears the burden of proving the lack of a triable issue of fact. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The evidence is viewed in the light most favorable to the nonmoving party. Davis v. Town of Southern Pines, 116 N.C. App. 663, 666, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). The FMLA provides that, under certain circumstances, an employer must allow an eligible employee to take up to twelve work weeks of leave during any twelve-month period. 29 U.S.C. § 2612(a)(1) (1994). The statute defines an eligible employee as an employee who has been employed: “(i) .for at least 12 months by the employer with respect to whom leave is requested under section 102; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A) (1994). However, an employee is not eligible if the employee is “any employee of any employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). Plaintiff argues that defendant’s calculation of the number of employees within a 75-mile radius of the headquarters is incorrect since it failed to count all the people it employs as UniServ directors. UniServ directors are field representatives of NCAE who work with local associations and although many perform their duties from offices located outside the 75-mile radius, all are headquartered in Raleigh. Plaintiff contends that the worksite of the UniServ directors is at the headquarters in Raleigh for the following reasons: (1) they travel all the time and spend at least fifty percent of their time in the field away from the office; (2) they are essentially salespeople; (3) the remote office of a UniServ director is not a single site of employment since they are not required to report there daily, the offices do not have separate management, many UniServ offices only contain equipment, and only four of these offices have secretaries; (4) all UniServ directors receive their work assignments from Raleigh and report to a single manager; and (5) UniServ directors have significant contacts with the Raleigh headquarters. However, in his affidavit, Wilson testified that 39 people were employed at the NCAE headquarters in Raleigh from June through November 1996. He also stated that seven employees worked at branch offices within the 75-mile radius of the headquarters. Further, the other 18 or 19 people, UniServ directors and support staff, employed by NCAE were located in branch offices beyond 75 miles of the headquarters. He stated that UniServ directors work throughout the state, but each is assigned “a fixed worksite which serves as their office and home base.” He testified that his determination was consistent with the USDOL’s representative’s finding that the NCAE was not subject to FMLA because it employed less than 50 employees within a 75-mile radius of the NCAE headquarters. Sanford Younce, a UniServ director for 24 years based in Charlotte, also testified that although most UniServ directors travel every day, their “fixed work-site” or “point of origination” is their office even if they are not required to report there on a daily basis. Plaintiff’s evidence fails to refute defendant’s determination that UniServ directors are assigned a fixed worksite which serves as their office and home base. Plaintiff’s argument relies solely on his interpretation of the term “worksite” in the statute and fails to address the uncontested evidence of Wilson and Younce that the worksites for UniServ directors are their branch offices. Therefore, since there is no genuine issue of material fact, the trial court properly granted defendant’s motion for summary judgment. Affirmed. Judges JOHN and McGEE concur.

MORRIS v CLAWSON TANK COMPANY Docket No. 108659. Argued October 8, 1998 (Calendar No. 18). Decided December 28, 1998. Rehearing denied post, 1234. Matthew J. Morris lost an eye in an accident unrelated to his employment as a general laborer with the Clawson Tank Company. Although his physician certified that he was able to return to work a month later, Clawson Tank discharged him. Over the next three and a half years, Morris worked at various full- and part-time jobs. During that time, he also filed a grievance, and an arbitration panel ordered his reinstatement. When Clawson Tank refused to reinstate him, claiming no position was available, Morris brought an action in the Oakland Circuit Court, Denise Langford-Morris, J., seeking enforcement of the arbitration award and asserting a cause of action under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq. He later moved to seek monetary relief only, and the court ruled that reinstatement would no longer be available and declared the ruling to be the law of the case. Clawson Tank subsequently purported to recall the plaintiff to work. Following a bench trial, the court awarded the plaintiff back and front pay. The Court of Appeals, Taylor, P.J., and Corrigan and D. A Johnston, JJ., affirmed the trial court’s finding of liability, but vacated its decision, and remanded for a substantial reduction of the back-pay award and elimination of the front-pay award. 221 Mich App 280 (1997) (Docket No. 183374). The plaintiff appeals. In an opinion by Justice Brickley, joined by Chief Justice Mallett, and Justices Cavanagh and Kelly, the Supreme Court held: The Court of Appeals utilized a legally erroneous standard in determining whether the plaintiff had properly mitigated damages. It also failed to properly observe the clearly erroneous standard in reviewing the factual findings of the trial court. When evaluated in light of the proper legal standards, the trial court’s findings were not clearly erroneous, mandating reversal of the judgment of the Court of Appeals. The circuit court did not specifically determine, however, whether the defendant met its burden of showing that the plaintiff unreasonably rejected its conditional offer of employment. Remand is required to determine whether the defendant met this burden and, therefore, whether an award of front pay is appropriate. 1. In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. A back-pay award of a plaintiff who succeeds at trial is then reduced by the amount earned in mitigation. While a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages, it would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is required only to make efforts to find employment that are reasonable under the circumstances. 2. The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. If offered employment of a like nature is rejected, the plaintiff forfeits continuing back and front pay. The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. 3. The Court of Appeals applied an erroneous rule of law in holding that the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable. It collapsed the two aspects of the doctrine of mitigation into one test: In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure “like employment,” defining like employment as work similar in type, hours, wages, tenure, and working conditions. There is no reason to require a plaintiff to search for like employment, as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. Thus, while a defendant may object to the reasonableness of the amount of compensation typical of the jobs sought in mitigation, work conditions and type of work are relevant only to the job seeker. There is no requirement that the plaintiff find employment with compensation equivalent to that of the job lost. The Court of Appeals standard is particularly inappropriate, given that the Handicapper’s Civil Rights Act, like the Civil Rights Act and title vii of the federal Civil Rights Act, is a remedial act, the primary goal of which is to end discrimination. The plaintiff was not required to find a job that was reasonably similar to the one that he held with the defendant; rather, the relevant question is whether the plaintiff made reasonable efforts to mitigate damages. The trial judge properly stated the allocation of the burden of proof, and found that the defendant failed to meet that burden. 4. The Court of Appeals holding, that after the plaintiff basically stopped looking for work his back-pay award should have been cut off, relies on a misapplication of the principles of the doctrine of mitigation. Determining the reasonableness of a job search is a fact-laden inquiry that relies upon determinations of credibility far more within the competence of the trial court than within the competence of an appellate court. The extent to which a plaintiff continues a job search after finding employment simply is one of many facts to be taken into consideration by the factfinder. A defendant must show that the plaintiff failed to make an honest, good-faith effort to secure employment; showing that more exhaustive efforts could have been made is not sufficient. In this case, the trial court’s finding, that the plaintiff made reasonable efforts to mitigate damages, was not clearly erroneous. 5. Where an employer makes an offer of reinstatement to a plaintiff, the court must first determine whether the reinstatement offer is conditional or unconditional. The second step is to assess whether a rejection is reasonable. The first step involves a question of law for the court, while the question of reasonableness is one of fact. The Court of Appeals statement of the law was error, because it implies that acceptance of offered reinstatement is in some way meaningfully different from acceptance of like employment from another employer. The defendant’s reinstatement offer was conditional in this case, but the Court of Appeals ignored the dispute between the parties over whether the job offer in fact was legitimate, or, rather, merely a trial tactic. Because the trial court did not document its findings regarding the reasonableness of the rejection, remand to the circuit court is required for a specific finding in that regard. 6. There was no clear error in the trial court’s factual findings. Justice Weaver, joined by Justice Boyle, concurring, stated that the doctrine of mitigation requires the victim of wrongdoing to make reasonable efforts to mitigate damages or forfeit the right to back pay. Further, and pursuant to the doctrine of mitigation, where the victim of wrongdoing refuses an offer of like employment, the right to continuing back pay and front pay also is forfeited. Because the trial court’s award of back pay after August 1990 was not clearly erroneous, it should be reinstated. The plaintiff’s receipt of disability from September 1989 through February 1990 does not preclude a concurrent award of back pay, although the trial court correctly reduced the back pay award by the amount of disability payments. Remand is necessary, however, to determine whether the plaintiffs rejection of the September and October 1992 job offers was reasonable. If the defendant demon-states that the plaintiff’s rejection was unreasonable, the plaintiff is entitled to neither back pay nor front pay after October 1992. It remains unclear whether the trial court correctly applied the doctrine of mitigation to the front pay award. The facts of the case may support a modified award of front pay after plaintiff accepted a substantially similar position in February 1993. While there is an obligation to mitigate future damages, the record does not adequately reflect whether the trial court properly considered the mitigation principles with respect to future damages. It remains to be determined what constitutes future damages. Thus, the case should be remanded not only to determine whether the plaintiff was reasonable in rejecting the defendant’s September and October job offers but also to reexamine the issue of front pay. Reversed and remanded. Justice Taylor took no part in the decision of this case. Otis M. Underwood, Jr., for the plaintiff-appellant. Karl Reibel for the defendant-appellee. Brickley, J. We are called upon to determine the scope of the plaintiffs duty to mitigate damages in the context of a discriminatory discharge suit under the Handicappers’ Civil Rights Act. MCL 37.1101 et seq.\ MSA 3.550(101) et seq. i The plaintiff was employed as a general laborer by the defendant, a manufacturer of underground storage and waste tanks. The plaintiff lost an eye on August 13, 1989, in an incident not related to his work at Clawson Tank. He reported back to Clawson Tank one month later with a note from his physician stating that he was able to return to work. At this point, however, he was discharged by the defendant. With the encouragement and assistance of the defendant, the plaintiff began receiving payments under disability insurance. He continued to receive disability payments for about five months following his discharge. The plaintiff began to search for other work almost immediately after he was fired. For six months in 1990, he held a temporary job at Cranbrook School, earning $6 an hour. In August of 1990, he began working for the Barkman Landscaping Company, earning $5 an hour and often working in excess of forty hours a week. This was a seasonal job, so the plaintiff was out of work in the winter, but was rehired by Barkman the next year and in 1992 as a supervisor earning $6 an hour. Between August 1991 and February 1993, the plaintiff made approximately fifty job inquiries to landscape companies, gas stations, and similar employers. During this period, the plaintiff held several short-term, odd jobs in addition to those already described. In February 1993, the plaintiff began working in a full-time, permanent position at Cranbrook School as a janitor earning $7.46 an hour, along with health care, pension, and other benefits. During the period following his discharge, the plaintiff was also pursuing legal remedies. The plaintiff filed a grievance, seeking reinstatement at Claw-son Tank, and, on January 20, 1990, an arbitration panel ordered that he be reinstated, as long as his rehiring would not displace employees of greater seniority. The defendant claimed that no such position was available, and refused to reinstate the plaintiff. The plaintiff then filed a lawsuit, seeking to enforce the arbitration award. On September 11, 1991, the trial court allowed the plaintiff to amend his complaint to assert a cause of action under the Handicappers’ Civil Rights Act. On August 17, 1992, the plaintiff stated at a motion hearing that, because of the increasing hostility of the litigation, and the lack of trust between the parties, he would only be seeking monetary relief, and no longer wanted reinstatement at Clawson Tank. Thus, the court ruled that reinstatement was no longer an available remedy, and on October 28, 1992, the circuit judge declared this ruling to be the law of the case. The plaintiff did not amend his complaint to correspond with this ruling. On September 18, 1992, and on October 23, 1992, the defendant mailed letters to the plaintiff, purportedly recalling him to work. The plaintiff did not respond to these letters, and the parties dispute whether the job offered actually existed and, if so, whether it was actually available to the plaintiff. A bench trial in the circuit court began in April 1994. The court heard testimony regarding the plaintiffs efforts to find work after his firing, both from the plaintiff and from the defendant’s experts. The court also heard testimony from both sides regarding the genuineness of the defendant’s September/October 1992 job offer to the plaintiff. The plaintiff’s expert presented evidence that the amount of back pay lost by the plaintiff was $46,729, and that the amount of front pay lost by the plaintiff was $76,516. In January 1995, the trial court ruled for the plaintiff, finding that he had fulfilled his duty to mitigate damages and awarded him $130,439. The Court of Appeals affirmed the trial court’s finding of liability, but vacated its decision, remanding the case for a substantial reduction of the plaintiff’s back-pay award, and elimination of his front-pay award. 221 Mich App 280; 561 NW2d 469 (1997). In reaching this conclusion, the Court of Appeals articulated a number of specific holdings. The panel held that the trial court’s award of back pay for the period between October 1989 and February 1990 was clearly erroneous because the plaintiff was receiving disability benefits; therefore, “plaintiff admitted that he was disabled” during this period. 221 Mich App 287. Because the plaintiff was still disabled, there could not yet have been an “act of discrimination” by the defendant justifying damages. Id. For the period between February 1990 and August 1990, the Court of Appeals held that the trial court’s award of back pay was not clearly erroneous, “because the trial court found credible plaintiff’s claim that he was also looking for comparable employment.” Id., p 288, citing MCR 2.613(C). The Court of Appeals further held that “the trial court should have cut off back pay in August 1990, when plaintiff took a seasonal job paying $5 an hour at a landscaping company and admittedly stopped seeking other employment.” Id., p 288 (emphasis in the original). The trial count’s award of front pay was, according to the Court of Appeals, clearly erroneous on two grounds. First, the defendant’s September/October 1992 offer of employment to the plaintiff was unreasonably refused by the plaintiff. Such a refusal forfeits the plaintiff’s right to front pay. Id., pp 290-291, citing Rasheed v Chrysler Corp, 445 Mich 109, 132; 517 NW2d 19 (1994). Second, “the trial court’s award of front pay for the period after February 1993, when plaintiff obtained like employment, was clearly erroneous because plaintiff incurred no damages after that time.” Id., p 291. Plaintiff sought leave to appeal to this Court, and we granted leave. 457 Mich 853 (1998). We now reverse the Court of Appeals decision as set forth below. n Mitigation of damages is a legal doctrine that seeks to minimize the economic harm arising from wrongdoing. “Where one person has committed a tort, breach of contract, or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided.” [Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197; 224 NW2d 255 (1974) (quoting McCormick, Damages, § 33, p 127).] In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. Id. The plaintiffs back-pay award, if he succeeds at trial, is then reduced by the amount that he earned in mitigation. See EEOC v Harper Grace Hospitals, 689 F Supp 708, 716 (ED Mich, 1988). Such a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages. It must be remembered, however, that the plaintiff here was wrongfully discriminated against when he was fired by the defendant. 221 Mich App 284-286. It would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is only required to make efforts that are reasonable under the circumstances to find employment. Rasheed, supra, p 124. A plaintiff who does not make such efforts loses the right to claim full back pay as damages. Id. This Court has noted that “a claimant required to make reasonable efforts to mitigate damages is not held to the highest standards of diligence. . . . ‘[T]he claimant’s burden is not onerous, and does not require him to be successful in mitigation.’ ” Rasheed, supra, p 123, quoting Rasimas v Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US 950 (1984). The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. See Ford Motor Co v EEOC, 458 US 219, 231-232; 102 S Ct 3057; 73 L Ed 2d 721 (1982). This aspect of the mitigation rule balances the interest of the plaintiff in not being forced to accept an unacceptable job in order to maintain his right to back pay, against the interests of the defendant and the public in avoiding unnecessary economic loss. As the United States Supreme Court has explained, the mitigation requirement cannot be construed to force a plaintiff to accept employment that he or she finds demeaning, particularly inconvenient, or otherwise unacceptable. [T]he unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, [but] he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. [Ford Motor Co, supra, pp 231-232.] Thus, in order to mitigate damages, the plaintiff must make efforts that are reasonable under the circumstances to minimize the economic harm caused by the wrongdoer; and, if offered employment of a “like nature,” the plaintiff forfeits further back-pay awards by turning it down. Significantly, “the question whether an employee was reasonable in not seeking or accepting particular employment is one to be decided by the trier of fact.” Rasheed, supra, p 124, citing Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 194-195; 390 NW2d 227 (1986). The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. Rasheed, supra, p 124. If the plaintiff was offered “like employment” and turned it down, the burden of proving this is likewise on the defendant. Id. In light of these principles, we now examine the holdings of the Court of Appeals. A As is made evident from this discussion of the doctrine of mitigation of damages, the Court of Appeals applied an erroneous rule of law in holding that “the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable.” 221 Mich App 287. The Court of Appeals erred in collapsing the two aspects of the doctrine of mitigation into one test: “In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure ‘like’ employment.” Id. The Court of Appeals defined “like employment” as “work that is similar in type, hours, wages, tenure, and working conditions.” Id. We find no reason to require a plaintiff to search for “like employment,” as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. See Shiffer, supra, p 197, “The principle of mitigation is a thread permeating the entire jurisprudenc

TRANKER v FIGGIE INTERNATIONAL, INC (ON REMAND) Docket No. 210656. Submitted April 3, 1998, at Lansing. Decided August 11, 1998, at 9:05 A.M. Leave to appeal sought. Paul and Denise Tranker brought an action in the Van Burén Circuit Court against Figgie International, Inc., alleging that the defendant violated the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and an employment contract with Paul Tranker when it terminated his employment. The court, William C. Buhl, J., granted summary disposition for the defendant, finding that the doctrine of judicial estoppel defeated the hcra claim and that the defendant did not violate the employment contract. The plaintiffs appealed. The Court of Appeals affirmed, finding the employment contract allowed termination at will and not for just cause only. The Court also agreed that the doctrine of judicial estoppel applied and that, because Paul Tranker had successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security benefits, he could not be considered handicapped for purposes of his subsequent hcra claim. 221 Mich App 7 (1997). The Supreme Court, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. 456 Mich 931 (1998). On remand, the Court of Appeals held: 1. The prior ruling in this matter that judicial estoppel bars a subsequent hcra claim must be vacated. The receipt of social security disability benefits does not bar a subsequent claim under the hcra because the two acts are designed for different purposes and utilize different standards. Because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the hcra. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. 2. Although judicial estoppel does not automatically bar a disability benefit recipient’s hcra claim, statements made by a person in applying for disability benefits may weigh against the person in a subsequent hcra claim. 3. The prior ruling in this matter that Paul Tranker was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the available maintenance position must be affirmed. Paul Tranker admitted he could not perform the acts required for the position and did not allege that he could perform them with reasonable accommodations. 4. The defendant had no duty to accommodate Paul Tranker by recreating for him his former position that had been eliminated or placing him in a job other than the available maintenance job. 5. The order granting summary disposition for the defendant with regard to the hcra and breach of contract claims must be affirmed. Affirmed. 1. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent; it is not inconsistent that a person could be disabled under the Social Security Act and be receiving social security disability benefits and still be qualified to perform the duties of the job or a job the person is seeking with reasonable accommodations for purposes of a claim under the Michigan Handicappers’ Civil Rights Act; the receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim because the two acts are designed for different purposes and utilize different standards and definitions; because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 2. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Statements made by a person in a prior application for social security disability benefits may weigh against the person in a subsequent claim under the Michigan Handicappers’ Civil Rights Act although judicial estoppel does not automatically bar a disability recipient’s handicap discrimination claim (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 3. Civil Rights —• Handicappers’ Civil Rights Act — Duty of Accommodation. An employer’s duty under the Michigan Handicappers’ Civil Rights Act to accommodate a handicapped employee does not extend to placing the employee in a new job or transferring the employee to other positions (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — Handicap. A condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the Michigan Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. Plaszcsak & Bauhof, P.C. (by James F. Bauhof), for the plaintiffs. Miller, Canfield, Paddock and Stone, P.L.C. (by Ronald E. Baylor and Scott R. Sikkenga), for the defendant. ON REMAND Before: Hood, P.J., and Neff and Gage, JJ. Per Curiam. This case is before us on remand from the Supreme Court, 456 Mich 931 (1998), for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. On remand, we agree that receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim. However, on the basis of the facts of this case, we nevertheless affirm the trial court’s order granting summary disposition for defendant with regard to plaintiff Paul Tranker’s handicap discrimination claim. The facts of this case were set forth in detail in our prior opinion, Tranker v Figgie Int’l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), and will not be reiterated here. Since our previous ruling, several decisions clarifying the issue before this Court have been issued. Swanks v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 (1997), Whitbeck v Vital Signs, Inc, 325 US App DC 244; 116 F3d 588 (1997), Blanton v Inco Alloys Int’l, Inc, 123 F3d 916 (CA 6, 1977), and Griffith v Wal-Mart Stores, Inc, 135 F3d 376 (CA 6, 1998). Although set forth in the context of the ADA, these cases provide insight into the issue whether judicial estoppel should operate to bar a handicap discrimination claim where the plaintiff is currently receiving social security disability benefits. In Swanks, the court specifically addressed the issue of the effect of Social Security Administration disability determinations on ADA claims. It observed that the ADA was enacted to protect against discrimination in employment, including hiring, firing, and advancement. Swanks, supra at 240. The protection afforded by the ADA extends to disabled individuals who can perform the essential functions of the employment position that they hold or desire with or without reasonable accommodation. Id. The court then ruled that the receipt of social security disability benefits does not automatically bar an ADA claim because the standards utilized to determine disability under the Social Security Act (ssa), 42 USC 301 et seq., do not take into account whether the disabled individual could work with reasonable accommodations, the critical ADA issue. Id. at 242. In other words, the criteria for determining whether one is disabled under the ssa and under the ADA are different. See also Whitbeck, supra at 247, wherein the court followed Swanks and also indicated that the receipt of private disability benefits is similarly not an automatic bar to a subsequent handicapper claim. In Swanks, the Social Security Administration and the Equal Employment Opportunity Commission agreed that the receipt of social security benefits should not automatically bar ADA claims because the acts have different purposes and have no direct application to one another. The contrary view—that Social Security disability benefits preclude ada relief—would force disabled individuals into an “untenable” choice between receiving immediate subsistence benefits under the Social Security Act or pursuing discrimination remedies. Forcing such a choice would undermine the pro-employment and anti-discrimination purposes of the two statutes. . . . Claimants choosing benefits would sacrifice an opportunity for reinstatement while simultaneously shielding their employers from liability for allegedly unlawful discrimination. Individuals choosing instead to seek ada relief would, by doing so, forego their entitlement to Social Security disability benefits. Nothing in either statute requires disabled individuals to make this choice. [Swanks, supra at 242 (citations omitted).] The Swanks court pointed out that of the federal appellate circuits only the Third Circuit Court of Appeals has reached a contrary conclusion and held that the doctrine of judicial estoppel bars an ADA claim where an individual is receiving social security benefits after claiming to be disabled. Id. at 243, citing McNemar v Disney Store, Inc, 91 F3d 610 (CA 3, 1996). In Blanton, supra at 917, the Sixth Circuit Court of Appeals adopted the Swanks opinion and held that the receipt of disability benefits does not preclude a subsequent ADA action. It specifically rejected the theory that the doctrine of judicial estoppel would bar such a claim. Id. In Griffith, supra at 380-382, it more fully addressed why the doctrine of judicial estoppel should not bar a subsequent handicap claim: The doctrine of judicial estoppel “forbids a party ‘from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.’ ’’ Courts apply judicial estoppel in order to “preserve]] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.” The doctrine applies only when a party shows that his opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3) the prior position was accepted by the court. * * * [Statements made in an application for Social Security disability benefits, while relevant, do not result in judicial estoppel. First, judicial estoppel does not apply because the answers given in a Social Security disability benefit application are not necessarily inconsistent with a plaintiff’s claim that he could have worked at his job, during the relevant period, with a reasonable accommodation. The precise question of whether the applicant could have worked with a reasonable accommodation during the relevant period is not asked in a Social Security context because, as discussed above, it would not necessarily bar receipt of those benefits. Furthermore, the statements made in the ssa application and forms are open to interpretation. . . . Moreover, judicial estoppel is an equitable doctrine, and “is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.” Applying judicial estoppel under the circumstances presented here would be inappropriate given that the truth-seeking function of the court would be supplanted by an agency administrative decision rendered without an evidentiary hearing. For these reasons, the district court’s decision cannot be sustained based on the doctrine of judicial estoppel. [Citations omitted.] In our previous opinion we adopted what is obviously now the minority view found in McNemar, supra, and held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ada, the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 el seq.-, MSA 3.550(101) et seq., prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202). After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. MCL 37.1103(e) and (1); MSA 3.550(103)(e) and (1). See Hatfield v St Mary’s Medical Center, 211 Mich App 321, 326-327; 535 NW2d 272 (1995). We agree with the Swanks court that the receipt of social security disability benefits should not bar a subsequent claim under the HCRA for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. Griffith, supra at 382. The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the hcra. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. “[T]he Social Security Administration’s inquiry into an individual’s eligibility for disability benefits focuses on the individual’s ability to do work generally available in the national economy and does not address the possible effect of accommodation on ability to work.” Whitbeck, supra at 247. Because the focus is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. Paschke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). Our prior ruling that judicial estoppel bars a subsequent handicap discrimination claim is vacated. We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ada suits. For example, ada plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ada purposes, that accommodation would have allowed them to perform that same job. [Swanks, supra at 243.] See also Griffith, supra at 383 (reasoning that an employer sued for handicap discrimination could rely on the claimant’s prior representations to attempt to prove that the claimant is not a qualified handicapped applicant); Blanton, supra (agreeing with Swanks that a party’s prior sworn statements would be relevant in a subsequent handicap discrimination claim). We also note that a disability recipient’s subsequent award of damages for a handicap discrimination claim may be reduced in order to prevent double recovery. See Blanton, supra; Swanks, supra. Our ruling regarding this issue, however, does not result in relief from summary disposition for this plaintiff. In our prior opinion, we indicated that plaintiff was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the maintenance position. Tranker, supra at 17, n 3. We affirm that position on remand. In his complaint, plaintiff alleged that defendant failed to accommodate him and that defendant placed him in a job position different than the one that he had before his lengthy leave of absence in 1991 and 1992. The evidence presented to the lower court indicated that during plaintiffs leave of absence, the duties of his former position as an engineering liaison/expediter were reassigned to other employees during a reduction in work force. Defendant closed one of its production facilities and reduced its work force by twenty percent. The engineering liaison position was eliminated. Defendant had no duty to accommodate plaintiff by recreating the position of engineering liaison/expediter for him or placing him in a job other than the available maintenance job. See Koester v Novi, 213 Mich App 653, 662-663; 540 NW2d 765 (1995), rev’d in part on other grounds 458 Mich 1; 580 NW2d 835 (1998), where this Court reiterated that the duty to accommodate does not extend to new job placement or transfers to other positions. Thus, plaintiffs argument that he should have been accommodated by being given the position of engineering liaison/expediter was not actionable. With regard to the maintenance position, which was plaintiffs position at the time of his termination, plaintiff specifically alleged that he could not perform the duties of the job. In his complaint at paragraph 9, he stated: That the Defendant ignored said medical advice and insisted on putting Plaintiff paúl tranker in a position that required physical acts he could not do and that was dangerous to his health and well-being and discriminatory against him in that the Defendant required the Plaintiff PAUL tranker, who is a handicapped person, to undertake an employment position that the Defendant knew that the Plaintiff paúl tranker would not be able to do because of his handicap and, in fact, put the Plaintiff PAUL TRANKER in a position of danger. “[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.” Id. at 661-662. Here, plaintiff admitted that he could not perform the acts required for the maintenance position. He also failed to allege that he could have performed them with reasonable accommodations. Because plaintiff’s handicap was directly related to his ability to perform the maintenance job, with or without accommodation, he is not handicapped under the act for that position and is not entitled to relief. In so holding, we note that in his complaint, plaintiff alleged only that his handicap was unrelated to his ability to perform the duties of the engineering liaison/expediter position, which was not the position at issue and which position did not exist. He never alleged that his physical handicaps were unrelated to his ability to do the available job. Affirmed. The term plaintiff in this opinion refers only to Paul Tranker. Our decision to affirm the trial court’s grant of summary disposition regarding plaintiffs breach of contract claim remains unchanged and is not the.subject of this review on remand. There was no evidence that plaintiff enjoyed a termination for just cause only employment relationship with defendant. The Eighth Circuit Court of Appeals specifically declined to decide this issue in Dush v Appleton Electric Co, 124 F3d 957 (CA 8, 1997). We also note that plaintiff did not attempt to base his hcra claim on defendant’s decision to eliminate the engineering liaison/expediter position. He did not allege that the position was eliminated in order to discriminate against him because of his handicaps.

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Released July 10, 1998, at 9:00 A.M.; vacated July 24, 1998. Before: Fitzgerald, P.J., and O’Connell and Whitbeck, JJ. Per Curiam. Plaintiff Barbara Lamoria appeals as of right the trial court’s grant of summary disposition. Lamoria filed this action after she was discharged from her employment at defendant Sun Valley Manor, Inc., a retirement home owned by defendant Health Care & Retirement Corporation (hcr). Defendant Marilyn K. Martin was, at the time of Lamoria’s discharge, the administrator of Sun Valley. In pertinent part, Lamoria alleges that her discharge (1) violated the prohibition of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against weight and age discrimination, (2) violated the Handicappers’ Civil Rights Act, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), with respect to handicap discrimination related to an injury that Lamoria suffered in the course of her employment, and (3) constituted illegal retaliation for plaintiffs seeking worker’s compensation benefits. Lamoria advanced additional claims on which the trial court also granted summary disposition to defendants, but Lamoria does not challenge the grant of summary disposition on those claims. In contrast, defendants assert that Lamoria was discharged in accordance with hcr’s policy of discharging employees who do not return to work after having been on a medical leave of absence for six months. We reverse the grant of summary disposition with respect to the claims at issue in this appeal and remand for further proceedings consistent with this opinion. But for MCR 7.215(H), we would affirm the trial court’s decision with respect to issue iv. However, as we will discuss more fully in this opinion, MCR 7.215(H) requires us to reverse with regard to issue iv. I. FACTS Lamoria has been a registered nurse since 1959 and was employed in that capacity (including time spent on leave) for nearly twenty years at Sim Valley, from September 9, 1975, until July 7, 1994. However, Lamoria stated in an affidavit that she was not officially notified that her employment had been terminated until October 1994. Lamoria alleged in her complaint that, at the time her employment was terminated, she was fifty-five years old, 5’ 7” tall and weighed about 240 pounds and that, previously, she had weighed as much as 311 pounds. Lamoria stated that she began working at Sun Valley as a staff nurse and was promoted in 1991 to the position of “Nurse (Unit) Manager.” According to Lamoria, her “last evaluation in August, 1993, stated that [she] had a ‘demonstrated loyalty’ to Sun Valley Manor and that [she] had the potential for promotion within hcr.” Ruth Wilcox, who also had worked at Sun Valley, testified in her deposition that she had the opportunity to review Lamoria’s work or watch her interact with patients. When asked for her opinion of Lamoria’s work performance as a nurse, Wilcox testified: I respect her. She has good standards. She’s honest and credible and trustworthy. She expressed and demonstrated a lot of behaviors that are consistent with a high degree of caring. I would describe her as dedicated. Wilcox did not recall having any problems with Lamoria during the time that Wilcox was serving as the internal administrator or director of nursing at Sun Valley. Lamoria stated in her affidavit that Martin was hired as the administrator of Sun Valley by Dan Livy, a regional manager for hcr in December 1993. Lamoria suffered a knee injury as a result of a fall at Sun Valley on August 9, 1993, during the course of her employment. Lamoria went on a medical leave from her emplpgnent in January 1994. Faith Hall indicated in her affidavit that she worked at Sun Valley as a “Nurse Consultant” when Martin was hired as the administrator for Sun Valley. Hall stated that, in her first meeting with Martin at Sun Valley, Martin proclaimed that she was going to “clean house” and that she intended to get rid of the employees who had been at Sun Valley the longest because they “would be the hardest to change.” Hall also stated that “Martin said that hcr sought her out for this position and brought her in specifically to clean out the older employees.” According to Hall, “Martin made comments about immediately terminating the director of nursing, several dietary department personnel, and some of the older nurses.” Hall stated that Martin and Livy referred to a “hit list” of employees whom they sought to terminate and that “in several instances [they] would ‘target’ an employee for termination, then begin to build a case for termination or instead force the person to resign.” Hall also stated that Martin and Livy “made critical and harsh remarks in [Hall’s] presence about the weight of some Sun Valley Manor personnel, including Annette Smith and Barbara Lamoria, in a manner that suggested to [Hall] that they intended to terminate people who they perceived as overweight.” Brenda LaVigne, who was employed by Sun Valley as a social worker, stated that, while she was at Sun Valley, Martin became the administrator. LaVigne made the following statements about Martin in her affidavit: 4. Marilyn Martin threatened to fire me on several occasions without justification. 5. Shortly after she started in December, 1993, Martin began to terminate several of the department heads[,] including musing supervisors. These employees were then replaced with younger employees. 6. Among the department heads or supervisors fired by Martin or forced to resign were Annette Smith, Director of Nursing; Sharon DeWhale, Director of Nursing; Donna Hair, Social Worker; Dennis Fox, Nurse Supervisor; and Belda Denzer, Nurse Supervisor. * * * 8. Martin did not like over-weight people. Martin made disparaging comments about heavy people, including Sun Valley Manor employees. 9. Annette Smith, Donna Hair and Barbara Lamoria were all overweight by Martin’s standards, and all were fired or forced to resign while Martin was Administrator. According to LaVigne, “Martin hired younger, more attractive people to enhance the ‘coiporate image’ of hcr and to replace the people that Martin wanted to terminate.” LaVigne also stated that Martin knew that Lamoria needed surgery to repair her knee and that Martin would be off work for a long time rehabilitating her knee. According to LaVigne, Martin did not want hcr to pay for the cost of this surgery or rehabilitation. Annette Smith-Jones indicated in her affidavit that she was employed as the director of nursing when Martin was hired as the administrator. According to Smith-Jones, Martin along with Livy “almost immediately began trying to fire [Smith-Jones] from [her] job.” SmithJones stated that, at meetings, “Martin often stated how she had no use for certain people, targeting in particular some of the muse unit managers and African-American licensed practical muses.” Defendants stress a provision of the “hcr Employee Handbook” regarding medical leaves that includes the statement, “Normally, a Medical Leave of Absence with extensions may not exceed six months.” However, Lamoria stated that she went to Sun Valley each month from February to August 1994 to complete the necessary forms to extend her leave of absence “for another month while HCR delayed my surgery.” Lamoria further stated that no one advised her during any of these visits that her leave would expire at some point or that she had to return to work by a certain date or face termination. Each time, Lamoria filled out a form on which she stated that her leave of absence was “work related” and that her estimated date of return to work was “undetermined.” Lamoria stated that, each time, Martin approved the leave form without modification. Further, according to Lamoria, neither Martin nor hcr ever stated on the form that the leave would expire at some point, although there is a space on the form to designate the end of a leave period. Lamoria also stated that she visited Sun Valley about ten times during her leave period to complete various paperwork and that she was given no notice of her impending termination during those visits. Kenneth Distler, M.D., an orthopedic surgeon, stated in an affidavit that he performed an arthroscopic procedure on Lamoria on January 10, 1994. The costs associated with this procedure, as well as benefits for partial wage loss and medical bills, were paid by ITT Hartford, which administered worker’s compensation claims for hcr. However, Dr. Distler stated that he thereafter determined that Lamoria’s left knee was not responding to treatment and that a total knee replacement was needed to restore her knee to “functionality” Dr. Distler stated that, in his opinion, Lamoria’s problem with her knee was caused by degenerative arthritis that was aggravated by the August 1993 injury. According to Dr. Distler, he requested authorization from Lamoria’s employer to have the cost of the surgery paid under an insurance policy covering work-related injuries “as the cause of [Lamoria’s] condition was at least partially related to a fall [Lamoria] had while on the job in August, 1993.” Dr. Distler stated that the surgery was not scheduled because of the uncertainty regarding Lamoria’s insurance coverage. He said that hcr never contacted his office to advise him whether hcr would pay for the cost of the surgery. Dr. Distler stated that, “[i]f Ms. Lamoria has surgery, [he] would expect her to return to a normal life, including productive work as a nurse, although she will have some restrictions on her work and activities for a brief period of time.” He stated that “Ms. Lamoria’s knee would improve with surgery because a replacement knee would have corrected not only the problems brought about by her fall, but also any of the degenerative arthritic problems that she has experienced.” Lamoria stated in her affidavit that she contacted hcr and ITT Hartford on several occasions from March to June 1994 “trying to get answers to why the surgery was not being done and about [her] condition, and each time [her] questions largely went unanswered or [she] was told that no decisions had yet been made.” Lamoria stated that she was told by Sun Valley personnel in May 1994 that her file had been “taken over” by Martin and Livy and that Martin had been in contact with hcr personnel who were in charge of worker’s compensation claims. Lamoria stated that it was about this time that her file was transferred within rTT Hartford from Susan Billiett to Wayne Beechum and that Beechum told her that he was taking over her file because hcr was not satisfied with the way that Billiett was handling her case. Lamoria stated that on June 29, 1994, she was finally told by Beechum that a decision had been made to deny her worker’s compensation coverage for her surgery. Lamoria further stated that Beechum told her, on June 29, 1994, that he was being pressured by hcr to deny the claim, that “he had ‘no alternative’ but to stop compensation payments because hcr had told him to do it” and that “hcr was ‘self funded’ for worker’s compensation insurance, thus hcr could tell him to stop payments, a fact noted in [Lamoria’s] records of the conversation.” n. REVIEW OF A GRANT OF SUMMARY DISPOSITION We review a trial court’s grant of summary disposition de novo. Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). In reviewing a motion for summary disposition based on MCR 2.116(C)(10), we review the documentary evidence and determine whether a genuine issue of material fact exists. Paul, supra at 210. In doing so, we draw all reasonable inferences in the nonmovant’s favor and give the nonmovant the benefit of any reasonable doubt. Id. “Summary disposition is appropriate only if the court is satisfied that it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.” Id. However, a party opposing a motion for summary disposition under MCR 2.116(C)(10) may not rest on its pleadings, but must come forward with evidence to show the existence of a material factual dispute. Paul, supra at 210-211. If the nonmoving party fails to show that a material fact is at issue, the motion would be properly granted. Id. at 211. Granting a motion for summary disposition is especially suspect where motive and intent are at issue or where the credibility of a witness or deponent is crucial. Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525 (1994). m. LAMORIA’S CLAIMS UNDER THE STATE CIVIL RIGHTS ACT A. GENERAL PRINCIPLES MCL 37.2202; MSA 3.548(202) provides in part: (1) An employer shall not do any of the following: (a) Fail 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, race, color, national origin, age, sex, height, weight, or marital status. [Emphasis added.] The trial court in its written opinion provided the following explanation for its grant of summary disposition to defendants with regard to Lamoria’s claims that her discharge was based on weight and age discrimination contrary to the state Civil Rights Act: In a discrimination case, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff is successful, then the burden of proof shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff then has the burden to prove that defendants!’] reason for its actions was a mere pretext. Plieth v St Raymond Church, 210 Mich App 568, 571 [534 NW2d 164] (1995); Bamell v Taubman Co, Inc, 203 Mich App 110, 120 [512 NW2d 13] (1993). To establish a prima facie case of employment discrimination, the plaintiff must demonstrate, as a threshold matter, that she was qualified for the position. Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982). In Baughey v Tecumseh Country Club, 778 F Supp 354 (ED Mich, 1991), vacated 989 F2d 498 (CA 6, 1993), aff’d 1 F3d 1240 (CA 6, 1993), the court found that a former employee failed to establish a prima facie case of age or sex discrimination where she was unable to perform her job due to an on-the-job injury prior to her discharge. While Ms. LaMoria may have all necessary state licensures and other qualifications for the position of Nurse Manager or Staff Nurse, it is not disputed that she cannot physically perform either position. Therefore, she has failed to establish a prima facie case of employment discrimination. Defendants!’] motion for summary disposition is granted as there is no evidence to establish a material factual dispute. Since plaintiff has not established a prima facie case, the court need not consider the disparate treatment nor the intentional discrimination claims. With regard to Lamoria’s claims of weight and age discrimination, the trial court’s analysis overlooks that the prima facie case, as part of a mechanism for shifting the burden of producing evidence, is merely one method that an alleged victim of illegal discrimination may use in attempting to show disparate treatment in violation of the state Civil Rights Act. The “prima facie case” derives from the construct established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), for analysis of employment discrimination claims under title VII of the federal Civil Rights Act that involve only circumstantial evidence of discrimination. See Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). However, where a plaintiff offers direct evidence of discriminatory animus by a decisionmaker in connection with a claim of employment discrimination, the prima facie case construct, as part of the McDonnell Douglas framework, is inapplicable: [W]hile the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v Muskegon Heights, 956 F Supp 1327 (WD Mich, 1997); see also Moiras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). “Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant’s discriminatory intent.” Blalock v Metals Trades, Inc, 775 F2d 703, 707 (CA 6, 1985). [Harrison, supra at 609-610; see also Downey v Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 633; 576 NW2d 712 (1998).] Accordingly, where a plaintiff presents direct evidence of discriminatory animus, it is erroneous for a trial court to use the McDonnell Douglas framework. Harrison, supra at 613. This Court in Harrison, id. at 610, further described what constitutes direct evidence of discrimination: “Direct evidence” has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, “ ‘ “requires the conclusion that unlawful discrimination was at least a motivating factor.” ’ ” Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is “ ‘sufficient to get the plaintiff’s case to the jury.’ ” Id. (citation omitted). Cases involving direct evidence of discriminatory animus are sometimes called “mixed motives” cases in light of the presentation of such evidence by the alleged victim of discrimination ordinarily coupled with the presentation of other evidence by the employer of legally permissible motives for an adverse employment-related decision: Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. In the instant case, plaintiff testified in her deposition that defendant’s employees made derogatory comments about her race. Because of plaintiff’s direct evidence of discrimination, this case presents a question of mixed motives, one in which defendant’s decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. [Harrison, supra at 610.] Direct proof of discriminatory animus ordinarily precludes a grant of summary disposition: To summarize, we hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to the factfinder for a determination whether the plaintiffs claims are true. [Id. at 612-613; (emphasis added).] In this case, viewing the evidence favorably to Lamoria, she was as “eligible” to be on a medical leave as was any other employee who was, as a practical matter, unable to perform the employee’s job duties because of an injury. In the context of alleged discrimination against an incumbent employee with regard to medical leave, it is not sensible that the employee should have to show that the employee was “qualified” to physically perform the job at the time of discharge. Otherwise, an employer would be free to discriminate against an individual in denying a medical

ROURK v OAKWOOD HOSPITAL CORPORATION Docket No. 104997. Argued January 6, 1998 (Calendar No. 2). Decided June 17, 1998. Melania Rourk, a registered nurse, brought an action in the Wayne Circuit Court against Oakwood Hospital Corporation, alleging that the hospital had violated the Handicappers’ Civil Rights Act in failing to retrain her for a new position after a medical restriction rendered her unable to perform her job and, ultimately, terminating her employment when she was unable to return to work. The court, James E. Mies, J., granted summary disposition for the defendant. The Court of Appeals, Geibbs, P.J., and Reilly and Markman, JJ, affirmed in an unpublished order (Docket No. 165637). The plaintiff appeals. In an opinion by Justice Weaver, joined by Chief Justice Mallett, and Justices Brickley, Boyle, and Taylor, the Supreme Court held-. An employer’s duty under the Handicappers’ Civil Rights Act to accommodate a handicapped employee does not include the duty to transfer the employee to a different job or position. 1. A person is handicapped under MCL 37.1103; MSA 3.550(103) whose physical or mental condition substantially limits one or more major life activity and is unrelated to the person’s ability to perform a particular job or position with or without accommodation. Under MCL 37.1102(2); MSA 3.550(102)(2), an employer must accommodate a handicapper unless the accommodation would impose an undue hardship. Under MCL 37.1210(1); MSA 3.550(210)(1), a plaintiff bears the burden of proving an employer violated the hcra accommodation mandate. If the plaintiff is successful, the burden shifts to the employer to demonstrate that it cannot reasonably accommodate the plaintiff without undue hardship. The hcra does not define accommodation, nor does it discuss the scope of the accommodation required. 2. Amendment in 1990 of MCL 37.11030)®; MSA 3.550(103)0)0) adding the “with or without accommodation” language lowered the threshold of proof of a handicap by providing that a person is handicapped even if some accommodation is necessary to allow performance of the duties of a particular job or position. The existence of a handicap is to be determined with reference to the job actually held or applied for. While MCL 37.1210; MSA 3.550(210) recognizes specific types of accommodation, it does not encompass job transfers. The accommodation provisions evidence an attempt to balance the rights of the handicapper with those of the employer, defining what is a reasonable cost to impose on employers and what would impose an undue hardship. It is for the courts to determine whether the burden of a requested accommodation imposes an undue hardship. Implicit in the statute is a standard of reasonableness. Affirmed. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that under the Handicappers’ Civil Rights Act, an employer has a duty to transfer an employee to a vacant position for which the employee is qualified and which imposes no undue hardship on the employer. The only limitation the act places on the duty to accommodate is that the accommodation may not impose an undue hardship on the employer. Instead of focusing on whether the accommodation imposes an undue hardship on the employer, the majority concludes that a transfer is not a reasonable accommodation. The act does not define accommodation; therefore, any accommodation is required unless it imposes an undue hardship on the employer. In this case, the employer did not claim that the requested transfer was an undue hardship. Messing, Palmer & Waibel, PC. (by Charles W. Palmer), for plaintiff-appellant. Dykema, Gossett, P.L.L.C. (by Paul H. Townsend, Jr., and Kiffi Y. Ford), for defendant-appellee. Amici Curiae: Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) for Michigan Trial Lawyers Association. Stewart R. Hakola for Michigan Protection & Advocacy Service. Weaver, J. We granted leave in this case to determine whether an employer’s duty to accommodate a handicapped employee includes the duty to transfer that employee to a different job or position under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq. We hold that it does not and, therefore, affirm the Court of Appeals affirmance of the trial court’s grant of summary disposition for defendant. i Plaintiff Rourk was employed by defendant hospital as a registered nurse. On June 16, 1990, she suffered a shoulder injury in a nonwork related automobile accident. Plaintiff was placed on medical leave the following day. The injury left her with a lifting restriction not to exceed five pounds that rendered her unable to perform her duties as a registered nurse. One year later, plaintiff approached defendant about the possibility of working in its utilization review department. Plaintiff was not qualified for the position without additional training. Because plaintiff was facing another surgery and would require additional training for the requested position, she ultimately requested that her medical leave be extended. Defendant granted this request, extending leáve another six months. On January 3, 1992, plaintiff’s employment was terminated because she was unable to return to her regular nursing position. On July 13, 1992, plaintiff filed this lawsuit in the Wayne Circuit Court, alleging that defendant violated the HCRA by failing to place her in an available position she could have performed with her restrictions. The trial judge granted defendant’s motion for summary disposition because plaintiff admitted that she could not perform the duties of a registered nurse. The Court of Appeals affirmed. n The HCRA guarantees the “opportunity to obtain employment, housing, and other real estate and full and equal utilization of public accommodations, public services, and educational facilities without discrimination because of a handicap . . . .” MCL 37.1102(1); MSA 3.550(102)(1). A person is handicapped under the HCRA whose physical or mental condition substantially limits one or more major life activity and is unrelated to the person’s ability to perform a particular job or position with or without accommodation. MCL 37.1103; MSA 3.550(103). In the case presented, plaintiff argues that her employer was obligated under the HCRA’s accommodation provisions to transfer plaintiff to a different job. For the purposes of employment, the HCRA mandates that “a person shall accommodate a handicapper . . . unless the person demonstrates that the accommodation would impose an undue hardship.” MCL 37.1102(2); MSA 3.550(102)(2). The plaintiff bears the burden of proving an employer violated the HCRA accommodation mandate; if the plaintiff is successful, the burden shifts to the employer to demonstrate that it cannot reasonably accommodate the plaintiff without undue hardship. MCL 37.1210(1); MSA 3.550(210)(1); Gloss v General Motors Corp, 138 Mich App 281; 360 NW2d 596 (1984). An examination of the HCRA definition of “handicap” and the statute’s mandate that an employer accommodate handicappers reveals that the concept of accommodation arises in two contexts in the HCRA. The concept of accommodation first arises in the definition of “handicap.” To be handicapped, one must be able to perform a job “with or without accommodation.” MCL 37.1103(1)®; MSA 3.550(103)®®. The second appearance of the concept of accommodation requires an employer to accommodate an employee if that employee establishes a handicap and requires some accommodation to perform the job. MCL 37.1102(2); MSA 3.550(102)(2). The duty to accommodate arises in the second context in this case. However, we find no indication in the statute that the Legislature intended to require different scopes of accommodation in the two contexts. The hcra does not define accommodation, nor does it discuss the scope of the accommodation required. Despite the absence of such language in the statute, plaintiff contends that the duty to accommodate includes transferring her to a new position. Whether the duty to accommodate includes a duty to transfer was addressed by the Court of Appeals in Rancour v Detroit Edison Co, 150 Mich App 276; 388 NW2d 336 (1986). Considering the question under the pre-1990 version of the statute, the Court of Appeals held that job transfers were not among the accommodations owed by an employer to a handicapped employee. The panel found that the scope of the duty to accommodate was ambiguous but concluded that it would be inappropriate for the Court to decide “the extent of the burden to be placed on employers to provide jobs for employees who, because of injuries sustained on the job, are no longer able to perform the job for which they were hired. A decision in this regard cannot be made without serious consideration of the impact on the Worker’s Disability Compensation Act . . . .’’Id., p 286. Unlike Rancour, the physical condition at issue in this case is not work related, so there is no interplay with worker’s disability compensation issues. For the reasons that follow, we find that Rancour’s conclusion that there was no duty to accommodate in the form of job transfers under the pre-1990 version of the HCRA also holds true under the post-1990 amended HCRA. Before the 1990 amendments of the HCRA, this Court found that the language “unrelated to the individual’s ability to perform the duties of a particular job or position” supported a narrow interpretation of handicap. In Carr v General Motors Corp, 425 Mich 313; 389 NW2d 686 (1986), the plaintiff requested a transfer to a position that required lifting in excess of his medical restriction. When denied the transfer, the plaintiff filed an hcra claim. We rejected the plaintiff’s argument that the defendant was required to make accommodations in the new position for his lifting restriction. Because his medical condition affected his ability to perform the job, this Court concluded under the plain language of the definition that he was not handicapped. In 1990, the Legislature modified “[u]nrelated to the individual’s ability” with the phrase “with or without accommodation, an individual’s handicap does not prevent the individual from . . . performing the duties of a particular job or position.” MCL 37.1103©®; MSA 3.550(103)®®. This version of the act is at issue in this case. We find that the addition of the language “with or without accommodation” lowers the threshold of proof of a handicap by providing that an individual is handicapped even if some accommodation is necessary to allow that individual to perform the duties of a particular job or position. The amendment overturned the narrow holding of Carr, and the addition of the language “with or without accommodation” guarantees that an individual otherwise qualified for a particular job or position is entitled to some accommodation if needed. However, we disagree with plaintiff that the modification expanded the form accommodations must take. Had the Legislature intended to redefine accommodation, it would have done so expressly. Analogy to federal law supports our conclusion that there is no duty to transfer under the hcra. The actual language of the ADA requires accommodation in the form of reassignment. It states in pertinent part: “The term ‘reasonable accommodation’ may include . . . reassignment to a vacant position . . . .” 42 USC 12111(9)(B). We agree that the Legislature examined the proposed language of the ADA in drafting the HCRA because it adopted similar language. However, we also note that the 1990 amendment of the hcra was adopted and took immediate effect on June 25, 1990, while the ADA was enacted on July 26, 1990. Because the hcra failed to expressly require reassignment as a form of accommodation, as is required in the ADA, and because it was enacted before the ada, we cannot assume that the Legislature intended to impose such a requirement. Given that the Legislature did not expressly require a duty to transfer as a form of accommodation, the holding in Rancour remains intact, and we adopt its conclusion. Our review of the new provisions discussing accommodation finds the holding in Rancour further reinforced. Section 210 addresses when accommodation may impose an undue hardship on employers. MCL 37.1210; MSA 3.550(210). It specifically recognizes the following types of accommodation: (1) purchasing equipment and devices, (2) reasonable routine maintenance or repair of such equipment and devices, (3) hiring readers and interpreters, and (4) restructuring jobs and altering schedules for minor and infrequent duties. MCL 37.1210(2)-(5), (7)-(ll), (14)-(15); MSA 3.550(210)(2>(5), (7)-(ll), (14)-(15). The types of accommodation listed in subsections 1-3 clearly fall within the two categories described in Rancour and do not encompass job transfers. See n 3. Nor does accommodation in the form of “restructuring [jobs] and altering the schedules ... to minor or infrequent duties” imply transferring an individual to an entirely different job. We do not contend, as the dissent suggests, that § 210 provides an “exhaustive list” of accommodations. Rather, we look to § 210 for guidance regarding the scope of accommodation intended by the Legislature. The specificity of § 210 simply does not support plaintiffs expansive interpretation of the duty to accommodate. Rourk claims her physical restrictions were unrelated to her ability to perform other jobs for defendant hospital and that, therefore, she was entitled to a transfer. However, to open the spectrum of jobs against which an employee’s physical or mental condition is gauged would fail to give meaning to the definition of handicap’s language “a particular job or position.” As this phrase is used in the definition of handicap, it is arguably ambiguous whether the Legislature intended the job currently held by the claimant or any job for which the claimant might be qualified. For the following reasons, we conclude that the Legislature intended that the existence of a handicap be determined with reference to the job actually held or applied for by hcra claimants. The definition of handicap states that a plaintiffs condition must be “unrelated to the individual’s qualifications for employment or promotion.” MCL 37.1103(e)(1)(A); MSA 3.550(103)(e)(i)(A). The “qualifications” of employees or applicants for a job is a fact-specific inquiry that is driven by the specific job for which they were hired or were applying. Rourk was qualified and hired to perform the functions of a nurse. Her injuries rendered her unable to perform those functions. Nonetheless, Rourk claims that she is entitled to a job transfer, because she can perform other jobs for the defendant. We find it would be illogical to conclude that plaintiff is handicapped or is entitled to a job transfer under the HCRA because she is qualified to perform another position despite her physical restrictions. To disassociate employee qualifications from the jobs for which they were hired or for which they are being considered would effectively bind employers permanently to their employees. Even when an employee is unable to perform the duties for which originally hired or currently being considered, the employer would have to place the employee in another position. It is not for the courts to impose such a burden on employers in the absence of express, unequivocal language from the Legislature. Further, there is no actual or implied support in the statute for the imposition of such a burden. Examining the use of the language “to perform the duties of a particular job or position” against other provisions using the same language clarifies that the Legislature intended the inquiry to focus on the job for which plaintiff was originally hired. Section 202, which sets forth actions prohibited to employers, repeats this exact language, “to perform the duties of a particular job or position,” in three subsections. These subsections provide that an employer shall not: (a) Fail or refuse to hire, recruit, or promote .... (b) Discharge or otherwise discriminate . . . with respect to compensation or the terms, conditions, or privileges of employment .... (c) Limit, segregate, or classify ... in a way which deprives or tends to deprive an individual of employment opportunities . . . because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position. [MCL 37.1202; MSA 3.550(202).] An employer hires, recruits, and promotes individuals with reference to their abilities to perform specific jobs, not purely to put them on its payroll. An employer compensates an employee and sets the terms, conditions, and privileges of employment on the basis of the employee’s qualifications for a specific job. If “a particular job or position” in this context meant “any particular job or position,” it would remove the relevance of an employee’s qualifications to hiring, recruiting, or promotion and would render impossible the task of setting objective compensation structures. Finally, we find that the accommodation provisions of the HCRA evidence an attempt to balance the rights of the handicapper with those of the employer. With regard to the types of accommodation addressed in § 210, the Legislature has carefully defined what is a reasonable cost to impose on employers and what would impose an undue hardship. The reasonableness of the cost depends on the size of the employer and the type of accommodation at issue. MCL 37.1210(2)-(6), (8)-(13); MSA 3.550(210)(2)-(6), (8)-(13). Accommodations beyond those listed in § 210 must not impose an undue hardship on the employer. MCL 37.1210(1); MSA 3.550(210)(1). Beyond these provisions, the Legislature has failed to define accommodation. Therefore, it is for the courts to determine whether the burden of a requested accommodation imposes an undue hardship, for implicit in the statute is a standard of reasonableness. In concluding that transferring these employees to available vacant positions “does not pose any financial hardship,” the dissent fails to comprehend the expense inevitably incurred in retraining and ultimately replacing the person claiming accommodation. Absent a requirement expressly stated within the statute that the duty to accommodate includes job transfers, we decline to impose such a requirement. We conclude that plaintiff Rourk was not entitled to a job transfer under the HCRA. The decision of the Court of Appeals is affirmed. Mallett, C.J., and Brickley, Boyle, and Taylor, JJ., concurred with Weaver, J. The status of plaintiff Rourk as handicapped is not disputed by the defendant hospital, although it appears from the record that she was unable to perform her duties as a registered nurse. Rancour concluded that the duty to accommodate under the hcra was limited to (1) the alteration of physical structures to allow access to the place of employment, and (2) modification of peripheral duties to allow job performance. Id., p 287. “The first kind of accommodation is necessary to provide access to the place of employment. It may include the installation of a ramp or elevator or the reassignment of parking spaces. The second kind of accommodation is necessary to permit actual performance of the job duties. It may include the reassignment of certain peripheral duties to other employees or the rearrangement of equipment or fixtures in the work area.” [Id., quoting Wardlow v Great Lakes Express Co, 128 Mich App 54, 65; 339 NW2d 670 (1983).] Unlike the case presented, the plaintiff in Carr did not seek accommodation in the form of a transfer to the new position, but rather that the defendant alter the new position for which he was applying to accommodate his handicap. The Carr decision did not address the question presented in this case, i.e., whether accommodation includes the duty to transfer handicappers to new positi