MI: crossdressing male ER physician terminated: private hospital's staffing decision not reviewable.

CASE FACTS: Dr. Gomer Pound, Jr., M.D. provided services at the emergency room at Lee Memorial Hospital for approximately 13 years. At the request of Fritz Fahrenbacher, the hospital's chief operating officer, Dr. Pound was expelled from the hospital after January 28, 2000. The stated reasons

for Dr. Pound's expulsion were several instances of "unprofessional behavior" and "failure to maintain an appropriate appearance." Dr. Pound's staff privileges at the hospital, however, remained intact despite his being unable to enter the hospital to exercise them. Dr. Pound had been notified on prior occasions that his "manner of dress" and "appearance" violated hospital conduct standards. In short, there were reports that Dr. Pound wore nail polish, cosmetics, and visible female undergarments while on duty at the hospital. Dr. Pound contended that he was a victim of gender stereotyping on the basis of his clothing and grooming habits and alleged that this violated the state's Civil Rights Act. The Cass Circuit Court granted the hospital's motion for summary judgment. Dr. Pound appealed.

COURT'S OPINION: The Court of Appeals of Michigan affirmed the judgment of the lower court. The court held that differential grooming codes for men and women, regardless of whether they are in writing, do not implicate an inherent characteristic of sex. The court held that the state's Civil Rights Act did not protect a person's conduct if the conduct did not implicate inherent characteristic of protected status under the statute. Because differential appearance codes for men and implicate an inherent characteristic of sex, the court held that the plaintiff could not, as a matter of law, state a cognizable claim under the state Civil Rights Act. The court concluded that private hospital's staffing decisions are not subject to judicial review unless those staffing decisions are in contravention of public policy. The court rejected the plaintiff's contention that there might have been a tortious interference by the hospital. However, the court held that the plaintiff failed to establish that any hospital officials acted with malice and could not find a violation of law constituting per se wrongful act on the part of any hospital representative. Private hospitals have an inherent right to demand that employees adhere to dress and conduct codes consistent with the hospital's mission. Any deviation from the standards set by the private hospital need not be tolerated. As long as there was no discriminatory element to the hospital's purpose in terminating or expelling this employee it is was within the right of the hospital to do so. Pound v. Lee Memorial Hospital, 2003 WL 22928853 N.W.2d--MI (2003)

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