Today the Court is called upon to consider a host of issues surrounding a claim for discriminatory termination of employment brought under the Michigan Civil Rights Act.1 Resolution of these issues requires us to explore the legal and procedural parameters of a discriminatory termination claim involving subsequent offers of reinstatement as they relate to the theory of damage mitigation. We conclude that because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, we remand for resolution of the reasonableness of rejection issue and a reassessment of the appropriate remedy. We also find that because defendants waived the statute of limitations defense, it is unnecessary to deal with plaintiff’s continuing violations claim. Finally, we affirm the trial court’s denial of defendants’ motion for a directed verdict on the intentional discrimination claim.

I

Plaintiff began his employment with Chrysler in 1967 at the Huber facility in Detroit. In 1978, plaintiff converted to the Muslim faith. Three years later, plaintiff was transferred to Chrysler’s Trenton engine plant where, according to plaintiff, he was subjected to religious and racial harassment from the first day when guards at the plant allegedly attempted to stop him from taking an Islamic newspaper into the facility because it was "subversive,” being called "Ayatollah Cockamania” by his supervisor and alleged major antagonist James Senart, the purposeful placing of pork near his work station during the holy month of *114Ramadan,2 numerous remarks about how Muslims should stay in Detroit, attempts to incite anti-Muslim sentiments from the other employees, refusal to replace plaintiff’s broken tools while other employees got new tools, several suspensions with racial and religious overtones, and for other similar acts. Plaintiff reported these incidents to union officials and Chrysler managerial employees on numerous occasions. Although the record contains evidence of several meetings between Chrysler management and plaintiff or his union representatives regarding these alleged occurrences, no legal action was taken by plaintiff before his termination.3

According to plaintiff, the anti-Muslim atmosphere culminated on July 12, 1984, in a setup orchestrated by Senart and intended to get plaintiff fired from his employment. Senart was allegedly baiting plaintiff,4 and other employees were improperly removing a storage bin, called a head divider, from plaintiff’s work area. When plaintiff retrieved the head divider, Senart allegedly rebuked him for taking it away from another work station. According to defendants, plaintiff kicked the head divider and threw two engine heads onto the ground with such damaging force that they could not be repaired. Senart wrote up a report on *115the incident, alleging that plaintiff purposefully destroyed company property, which is a ground for immediate discharge. Shortly thereafter, plaintiff was escorted out of the plant by security guards and placed on disciplinary leave.

Charles Fern, the labor relations manager at the Trenton plant, reviewed Senart’s report and attempted to interview plaintiff’s co-workers.5 Fern inspected the two engine heads that were indeed damaged, and he looked at two grooves in the floor of plaintiff’s work area that were allegedly caused by plaintiff’s act of hurling the engine heads to the ground. Fern also spoke to union representatives and other supervisors. As a result of his investigation, Fern concluded that plaintiff had destroyed company property, and the disciplinary leave was upgraded to termination of employment.

Plaintiff filed the instant action in Wayne Circuit Court against Chrysler and Senart for wrongful discharge based on racial and religious discrimination, for intentional infliction of emotional distress, and for fraud or misrepresentation on the part of Senart. Before trial, the court ruled that any damages awarded to plaintiff would be limited to the thirteen-month period of his unemployment preceding his rejection of Chrysler’s reinstatement offer.6 At trial, the court granted defendants’ motion for a directed verdict on all but the religious discrimination claim. The jury returned a verdict in favor of plaintiff on the religious discrimination claim and awarded him $51,300 for lost wages and *116$10,000 for embarrassment or humiliation. In a subsequent hearing conducted without a jury, the court exercised its equitable powers to order Chrysler to reinstate plaintiff as newly hired, with no seniority, within sixty days of the decision.

Defendants appealed the court’s decision not to grant the motion for a directed verdict on the religious discrimination claim, as well as the order requiring plaintiff’s reinstatement as a newly hired employee. Plaintiff cross appealed the court’s refusal to permit recovery for acts occurring before the three-year period of limitation running from the date of termination and for the decision not to reinstate plaintiff with full seniority rights and backpay.

A majority of the Court of Appeals upheld the trial court’s decision not to grant defendants’ motion regarding the religious discrimination claim, and it upheld the trial court’s "equitable power” to fashion the remedy of reinstatement, albeit without any seniority rights. 196 Mich App 196, 200; 493 NW2d 104 (1992). The majority also upheld the ruling of the limitation of backpay to the thirteen-month period before plaintiff’s refusal to accept Chrysler’s reinstatement offer. Finally, the majority concluded that plaintiff failed to establish all of the elements necessary to invoke the "continuing violation” theory, which would have permitted plaintiff to recover for alleged acts that occurred more than three years before the filing of the complaint. The dissenting judge, relying heavily on federal precedent, would have reversed the trial court’s decision to reinstate plaintiff for what he considered to be an unreasonable refusal to accept Chrysler’s "unconditional” offer of reinstatement. Id. at 210.

*117This Court granted both parties’ application for leave to appeal.7

II

A

One year and three months after his termination, Chrysler offered to reinstate plaintiff to his former position with full seniority, but without backpay. The offer provided in its entirety:

In full settlement of this case, M. Rasheed will be offered reinstatement in accordance with his seniority provided he can meet normal requirements. Upon his return to work his discharge shall be reduced to a disciplinary layoff without back pay for the period during which he was away from the plant.

This action of the Appeal Board shall form no basis or precedent for a decision or settlement in any other case.

On the basis of this offer, defendants moved for partial summary disposition to prevent plaintiff from recovering continued backpay8 for a failure to accept what they asserted was an "unconditional” offer, as well as to prevent plaintiff’s reinstatement. Plaintiff asserted that the offer was conditional because it did not include backpay and *118because it offered to convert the termination into a disciplinary layoff rather than remove the blemish from his employment record.9

At the hearing on the motion itself, the trial court concluded as follows:

It is hereby ordered, adjudged and decreed that Defendant’s Motion is granted as it concerns limiting backpay that Plaintiff can seek, to that period covering July 19, 1984, up to and including August 26, 1985.

It is further ordered, adjudged and decreed that Defendant’s Motion as it concerns the preclusion of reinstatement for Plaintiff is denied, and Plaintiff will be allowed to present proofs concerning the equitable issue of reinstatement to the trier of fact.

It is further ordered, adjudged and decreed that notwithstanding any ruling on reinstatement of the submission of proofs, Plaintiff’s backpay is limited to the aforementioned July 19, 1984 to August 26, 1985 period.

It is unclear from this ruling what was the basis for the trial court’s conclusion that plaintiff rejected an unconditional offer so that he was not entitled to continued backpay, but that the issue of reinstatement was a question to be decided by the finder of fact. In addressing this issue, we turn first to a discussion of the relevant case law.

B

The law concerning backpay and other remedies in the employment discrimination context has its roots in provisions of the federal Civil Rights Act of 1964, which amended the Civil Rights Act of *1191957.10 The avowed purpose of the new provisions was to "provide the spur or catalyst which causes employers ... to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.” United States v N L Industries, Inc, 479 F2d 354, 379 (CA 8, 1973), quoted in Albemarle Paper Co v Moody, 422 US 405, 417-418; 95 S Ct 2362; 45 L Ed 2d 280 (1975). Modeled after a provision in the National Labor Relations Act, the backpay provision was intended to "make whole” anyone suffering from the effects of employment discrimination. Albemarle, supra at 418-419.

Almost a decade later, however, the United States Supreme Court recognized a corollary to the backpay provision on the basis of interim earnings language found in 42 USC 2000e-5(g).11 In the landmark decision Ford Motor Co v EEOC, 458 US *120219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), the Supreme Court specifically imposed on a discharged employee the duty to mitigate damages under title VII of the federal Civil Rights Act of 196412 by accepting unconditional offers of reinstatement even when the offers do not include backpay.13 The majority held:

An unemployed or underemployed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in § 706(g). This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of back-pay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages. [Id. at 231-232. Emphasis added.]

According to the majority, this duty provides in*121centive for employers to voluntarily comply with title VII because it permits the employer to avoid liability for backpay damages and thereby avoid economic waste. Id. at 228-229. Moreover, "the victims of job discrimination want jobs, not lawsuits.” Id. at 230.

Thus, a reinstatement offer, in order to be considered "unconditional” for federal purposes, need not include an offer of retroactive seniority, which may nonetheless be awarded if the claimant is successful in an employment discrimination claim. Id. at 232-233.14 However, a claimant does not violate the duty to mitigate damages by refusing to accept a position that is an unreasonable distance from his home,15 to accept a position that is not the substantial equivalent of the one sought or from which he was terminated,16 or to accept an offer with any other unreasonable condition attached to it.17 Generally, it is the duty of the trier *122of fact to weigh the evidence to determine whether a reasonable person would refuse the offer of reinstatement. O’Donnell v Georgia Osteopathic Hosp, Inc, 748 F2d 1543, 1551 (CA 11, 1984), disavowed on other grounds in Lindsey v American Cast Iron Pipe Co, 810 F2d 1094 (CA 11, 1987); Fiedler v Indianhead Truck Line, Inc, 670 F2d 806, 808 (CA 8, 1982).

Under title VII, the federal courts have wide discretion to fashion a remedy in a discriminatory hiring or discharge case.18 For example, the award of backpay is treated as an equitable remedy to be decided as a matter of law. Albemarle, supra at 417; 2 Larson, Employment Discrimination, § 55.32, pp 11-96.2 to 11-96.4. A court’s decision on the issue of backpay is a matter of discretion, and may only be reversed for abuse. Albemarle, supra at 415-416; Larson, supra, § 55.33, pp 11-96.4 to 11-96.7. At least one circuit court has stated that this discretion permits a denial of backpay accruing before the reinstatement offer as well as front pay. O’Donnell, supra at 1550.19 On the other hand, a *123court’s discretion is "hardly . . . unfettered by meaningful standards or shielded from thorough appellate review.” Albemarle, supra at 416.

On the issue of reasonableness, a claimant required to make reasonable efforts to mitigate damages is not held to the highest standards of diligence. Rasimas v Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US 950 (1984). Moreover, "the claimant’s burden is not onerous, and does not require him to be successful in mitigation.” Id. Finally, the burden of proof on this question shifts to the employer once a prima facie case of employment discrimination has been established. Id. at 623-624.

C

The approach of state courts on the issue of backpay/continued backpay is in harmony with that utilized by the federal courts.20 First, this jurisdiction recognizes a duty of a discharged employee to mitigate damages. See Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197; 224 NW2d 255 (1974) ("The principle of mitigation is a *124thread permeating the entire jurisprudence ... it is part of the much broader principle of 'avoidable consequences’ ”); Flickema v Henry Kraker Co, 252 Mich 406; 233 NW 362 (1930) (an offer of reinstatement by an employer to a discharged employee was admissible in evidence on the issue of mitigation of damages). Second, the failure of a discharged employee to mitigate damages, whether by seeking other employment or by rejecting an unconditional reinstatement offer, is an affirmative defense to be established by the employer. Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 181; 309 NW2d 194 (1981). Third, the question whether an employee was reasonable in not seeking or accepting particular employment is one to be decided by the trier of fact. Id.; Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 194-195; 390 NW2d 227 (1986); Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 797; 369 NW2d 223 (1985).21 Fourth, state courts also have a wide *125discretion to fashion appropriate remedies in wrongful discharge cases. MCL 37.2801(1); MSA 3.548(801)(1).

We conclude, therefore, that the crux of this case concerns the subtle interplay between a court’s broad equitable powers to fashion the appropriate remedy in cases of discriminatory discharge and the factfinder’s function of determining whether the rejection of a reinstatement offer was reasonable. As stated earlier, the trial court, without indicating the basis for its decision, held that plaintiff’s right to continued backpay was terminated by the "unconditional” offer of reinstatement, but that the issue of reinstatement was a question to be decided by the trier of fact. Critical to our effort to reconcile this ruling are the underlying contractual principles relevant to this area of the law. Thus, it is to a consideration of these principles that we next turn.

III

A

Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations,22 guidelines on the right of labor to *126organize,23 and even rules concerning compensation for work-related injuries.24 However, although special rules have been adopted in the context of employment law, the contractual basis of the employment relationship remains intact.25 Therefore, in our attempt to reconcile these two areas of the law in the context of this case, we conclude that the questions that must be addressed are: whether the courts may construe offers of reinstatement using contract principles and, if so, how a ruling on their conditionality affects an employee’s right to reject an unreasonable offer. We are persuaded that the application of contract principles will provide a principled basis for discerning the conditionality of reinstatement offers. However, to ensure the statutory rights of employees against *127discriminatory employment practices, we must reconcile the contractual aspects of reinstatement offers with their civil rights counterparts. Thus, we first turn to the contractual principles to be applied to reinstatement offers.

A reinstatement offer that is clear on its face may be construed as a matter of law by the courts.26 Where the language of the reinstatement offer is properly characterized as "ambiguous,”27 construction is permitted. Berk v Gordon Johnson Co, 232 F Supp 682, 687 (ED Mich, 1964). Where it becomes necessary to consider the parties’ intent, the inquiry is a question of fact. Liberty Mutual Ins Co v Curtis Noll Corp, 112 Mich App 182, 191; 315 NW2d 890 (1982); Robinson v A Z Shmina & Sons Co, 96 Mich App 644, 649; 293 NW2d 661 (1980); 17A Am Jur 2d, Contracts, § 339, p 346.28 Against this backdrop, we now turn to the interplay between the conditionality of a reinstatement offer and the reasonableness of a rejection.

In a number of federal cases, the courts appear to have decided whether a condition was reasonable so that rejection of the reinstatement offer cut off the right to continued backpay. Careful review of these cases, however, indicates that these decisions were made following review of the trial *128courts’ rulings on motions for summary judgment,29 on motions for directed verdict,30 or on decisions entered in bench trials, i.e., where the trial court acted as factfinder.31 In other words, these decisions derive from factual determinations of the courts or from federal motion practice.

On the basis of the foregoing, we conclude that the issues of conditionality and reasonableness of rejection are discrete under the federal as well as the state systems.32 While the conditionality issue may be decided by the courts as a matter of law *129under appropriate circumstances, the reasonableness issue must be decided on an independent basis. Thus, the first step in these cases is to determine the import of a reinstatement offer using contract principles. The second step is to assess whether a rejection is reasonable. An unconditional offer of reinstatement may be used as proof of an unreasonable rejection in satisfaction of the employer’s burden. In fact, the federal courts appear to treat unconditional offers as dis-positive. However, if there are any differences between the offer and the previous employment position, with the exception of backpay, then a discharged employee’s act of rejection, if based in part on that difference or condition, precludes a peremptory court ruling.33 Rather, the question of reasonableness is one of fact that must take into account the particular circumstances of each case.34 Once this two-step inquiry has been completed, a court may exercise its broad equitable powers over fashioning the appropriate remedy. See MCL 37.2801(1); MSA 3.548(801)(1); Ford Motor Co, 458 US 226; Albemarle, 422 US 415-416; Larson, supra, § 55.33, pp 11-96.4 to 11-96.7.

On the other hand, we do not wish to trivialize the importance of the mitigation doctrine. It is well established that a discharged employee must *130make every reasonable effort to mitigate damages. See Ford Motor Co, supra at 231; Shiffer, supra at 197-198; Riethmiller, supra at 195; Higgins, supra at 181. To the extent that the reasons for rejection of a reinstatement offer are unrelated to the offer and the conditions of employment that the offer contains, such reasons would be outside the purview of title VII and the Michigan Civil Rights Act.35 Moreover, a rejection on grounds unrelated to the employment contained in the reinstatement offer clearly runs afoul of the mitigation doctrine. Because the burden of proving unreasonableness has shifted onto the employer once a discriminatory discharge is established, the onus is on an employer to establish that the true reasons for a rejection are unrelated to any conditions of the employment as are manifest in the reinstatement offer. As the previous discussion has indicated, this requires, first, the interpretation of a reinstatement offer to determine its conditions if they exist and, second, consideration of the reasons for rejection under the circumstances of a particular case.36

*131At this juncture, there is another inherent conflict that must be considered, to wit: the policy behind creating an incentive for discharged employees to mitigate damages as provided in Ford Motor Co37 and the law of affirmative defenses, which places the burdens of pleading and proof on *132the party raising them.38 An affirmative defense presumes liability by definition.39 Thus, the burden falls squarely onto the employer to prove mitigating circumstances that would lower a damages award. This burden does not, however, alter a claimant’s burden of proving the elements of a discriminatory hiring or discharge decision.

Today we adopt a middle ground that attempts to reconcile these competing interests. Thus, we hold that once it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that the rejection of the offer is unreasonable. To rebut, an employee must offer reasonable grounds for rejection that are grounded in the employment as contemplated by the reinstatement offer and not a purely personal reason.40

In so holding, we shift to a claimant the burden of production, i.e., reasonable grounds for rejection, without shifting the burden of proof on the issue of mitigation. The failure of a claimant to provide a legitimate basis for a rejection forfeits the right to front pay for the reason that a rejection unrelated to conditions of employment under the reinstatement offer would be based on personal choice and would therefore be unprotected by discrimination laws. See pp 129-130. In this way, we honor the policy behind Ford Motor Co without violating the law surrounding the affirmative defense of damage mitigation.41

*133B

In this case, the issue of reasonableness concerning plaintiff’s rejection was improperly removed from the jury by way of the grant of partial summary disposition. As defendants point out, an award of front pay and an award of reinstatement are two sides of the same coin.42 Thus, the choice between these two remedies, if warranted at all under the circumstances of a particular case, can only be made after the other issues have been resolved. Both center on the question whether a rejection of a reinstatement offer was reasonable.

We are persuaded that the trial court was exer*134cising its broad equitable powers when it removed the continued backpay and the front pay issues from the jury while preserving the issue of reinstatement as a question for the trier of fact. Regardless of the basis for this decision, however, we hold that the trial court erred as a matter of law by deciding the continued backpay issue before the factfinder decided defendants’ ultimate liability for the alleged discriminatory discharge, which must take into account the conditions of the offer and the reasonableness of the plaintiff’s rejection.43

Accordingly, we reverse the Court of Appeals holding in this regard and remand to the trial court for reconsideration of the reasonableness issue and the appropriate remedy.44

IV

Plaintiff also appeals the trial court’s ruling that he could not avail himself of the continuing violations doctrine in order to recover for alleged, discriminatory acts occurring before the three-year period of limitation. According to plaintiff, defendants waived the statute of limitations defense for failure to raise it as required by the court rules. Defendants argue that the defense was preserved *135in its motion for summary disposition. After careful review of the record, we agree with plaintiff that defendants failed to properly raise the defense as it relates to the claim for humiliation damages under the continuing violations doctrine. Thus, it is unnecessary for us to address this claim.

V

Finally, defendants also argue that they were entitled to a directed verdict because the decision to terminate plaintiff was made by someone who based the decision on Senart’s report and not on any discriminatory animus. It is true that a claimant asserting an intentional discrimination claim must establish a discriminatory predisposition of the discharging party and an act in furtherance of this predisposition as part of a prima facie case.45

In this case, Charles Fern made the decision to terminate plaintiff for destruction of company property entirely on the basis of the report created by Senart. There are no allegations that Fern engaged in any discriminatory behavior. However, plaintiff offered evidence that Fern was made aware of the alleged discriminatory treatment of plaintiff on numerous occasions. Moreover, the record indicates that other employees refused to discuss the incidents of July 12, 1984, with Fern.

We believe that the trial court properly allowed plaintiff to offer proof that Fern’s reason for discharge was a mere pretext. This Court has already ruled that ordinarily neutral mechanisms for termination may, in unique circumstances, qualify as *136discriminatory employment practices. In Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 524-525; 398 NW2d 368 (1986), the plaintiff was discharged for striking a supervisor. Though the decision was made by company officials who were not involved with the alleged harassment, this Court recognized that the harassment may have been orchestrated to cause the plaintiff to commit an offense that would lead to immediate discharge in an attempt to make the termination decision appear to be neutral rather than discriminatory. Id. at 539-542. Thus, the discriminatory animus of the plaintiff’s supervisors was imputed to the company officials who ultimately made the decision to terminate. We believe that the facts of this case likewise constitute unique circumstances.

Accordingly, we agree with the Court of Appeals that reasonable jurors could have reached different conclusions on the issue whether Fern was aware of the alleged discrimination and whether he acted in furtherance of it, which translates into a predisposition to terminate for discriminatory reasons.

CONCLUSION

In sum, we affirm the trial court’s denial of defendants’ motion for a directed verdict on the intentional discrimination claim. However, because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, we remand for resolution of the reasonableness of rejection issue and a reassessment of the appropriate remedy. And, finally, because we find that defendants waived the statute of limitations defense on the continuing violations claim, we do not address plaintiff’s claim.

*137Reversed and remanded to the trial court for proceedings consistent with this opinion.46

(separate opinion). I concur in the result of the majority opinion, which remands for further proceedings. I write separately because I *138do not join in the trifurcated procedure or in a number of other statements in the majority opinion.

I

The majority asserts that Michigan courts have broad discretion to fashion appropriate remedies in wrongful discharge cases.1 The majority cites in support the following provision of the Civil Rights Act:

A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1); MSA 3.548(801)(1).]

The cited provision — stating that a person alleging a violation of the Civil Rights Act has a choice whether to seek injunctive relief or to seek damages — supports, rather, the view that the court has no discretion. It would appear that where a plaintiff brings an action seeking damages, it is for the trier of fact to decide whether there has been a violation of the Civil Rights Act and the damages to be awarded therefor.

In the instant case, the plaintiff does not seek damages for "front pay.” He sought and continues to seek reinstatement. There is, therefore, no need to decide whether the Civil Rights Act should be read as granting a court, in a case in which the plaintiff brings an action seeking damages, the discretion, on a finding that the Civil Rights Act has been violated, to order reinstatement in lieu of an award of front pay.

The implication in the majority opinion that federal cases support the proposition that a Michi*139gan court has broad discretion to fashion a remedy under the Civil Rights Act ignores the significant differences between title VII and the Civil Rights Act. The federal cases on which the majority relies construe an act of Congress (title VII) providing that on a finding that the respondent intentionally engaged in an unlawful employment practice "the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate.”2 No such discretionary language appears in the Civil Rights Act. Thus, while it may be appropriate to look to federal title VII cases construing some aspects of the Civil Rights Act, they are not persuasive where a damage remedy has been sought under the Civil Rights Act.

II

Nor is there anything in the federal title VII cases that grants federal courts the power to deny a plaintiff who has been found to be the victim of an unlawful employment practice a remedy that would make him whole.

The majority correctly observes that federal court decisions speak of broad discretion, under the federal legislation, concerning the fashioning of the remedy, but the majority does not state the full picture. While the federal courts have discretion in determining how to make a plaintiff whole, at least where a plaintiff has not unreasonably rejected an unconditional offer of reinstatement, they do not appear to have discretion to determine *140whether to make a plaintiff whole. Further, the discretion concerning how to fashion the remedy does not appear as broad as the majority implies.

In Albemarle Paper Co v Moody,3 the United States Supreme Court held that backpay generally should be awarded to a successful claimant because this is necessary to make him whole.4 United States district courts and circuit courts of appeal have applied the Albemarle presumption — that a court should award the relief necessary to make the plaintiff whole — in cases in which plaintiffs have sought relief other than backpay. These cases indicate that a federal court must choose a remedy that makes the plaintiff whole; those remedies that often most effectively make a plaintiff whole, such as reinstatement, seem to be favored.

A number of federal courts have applied the Albemarle presumption to reinstatement. In Henry v Lennox Industries, Inc, 768 F2d 746, 752-753 (CA 6, 1985), the United States Court of Appeals for the Sixth Circuit said:

While the statute, 42 USC 2000e-5(g), clearly provides for reinstatement, the scope of the remedy rests within the discretion of the district court. ... A finding of intentional discrimination presumptively entitles the plaintiff to reinstatement. . . . "[Reinstatement, like backpay, should be denied 'only for reasons which, if applied generally, would not frustrate the central statutory purpose of eradicating discrimination ....’” Grubb [v Foote Memorial Hosp, 533 F Supp 671, 676 (ED Mich, 1981)] (quoting Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 [1975]).

Similarly, in Taylor v Teletype Corp, 648 F2d *1411129, 1138 (CA 8, 1981), cert den 454 US 969 (1981), cited by the majority, the United States Court of Appeals for the Eighth Circuit said:

In a Title VII action, however, a court may deny reinstatement "only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” [Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 (1975).]

Professor Larson said:

Once it has been established that this kind of adverse employment action [discharge, demotion, or transfer] has occurred because of unlawful discrimination, the courts will normally award reinstatement unless special circumstances exist that make it inappropriate. This presumption is derived indirectly from Albemarle Paper Co v Moody, in which the Supreme Court established a similar presumption in favor, of the award of back pay. There seems no reason to treat reinstatement differently, especially since Albemarle’s holding is grounded in the "make whole” purposes of Title VII. [2 Larson, Employment Discrimination, § 55.21, p 11-63.]

From Henry, Taylor, and Larson, it seems fair to conclude that a federal court does not have especially broad discretion to determine whether to order reinstatement. If reinstatement is necessary to make a plaintiff whole, it should generally be awarded. To be sure, there might be special circumstances in which reinstatement might be in*142appropriate,5 and a federal court has discretion to determine whether these special circumstances exist, and, on finding special circumstances, to refuse to order reinstatement. As a general matter, though, a federal court does not appear to have broad discretion to refuse to reinstate a victim of unlawful employment discrimination.

Even when a federal court determines that reinstatement would not be appropriate, it appears that the court’s discretion in fashioning a remedy may not be as broad as the majority implies. When "the court has determined that reinstatement is deserved but cannot be ordered ... [it will] most commonly award 'front pay’ — that is, compensation for loss of future earnings — in lieu of reinstatement”6 if such an award is necessary to fully compensate a victim of discrimination and can reasonably be calculated. In the words of the United States Court of Appeals for the Tenth Circuit:

Although the cases discuss the award of front and back pay as being in the trial court’s discretion, the United States Supreme Court has made it clear that this discretion must be exercised so to make possible the fashioning of the most complete relief possible. See Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 (1975). [EEOC v Safeway Stores, Inc, 634 F2d 1273, 1282 (CA 10, 1980) (remanding and ordering an award of front pay).]

*143In short, where reinstatement is not possible and front pay is necessary to make whole a victim of discrimination, it appears that front pay is presumptively available to that victim.7

Indeed, the Albemarle presumption — that a plaintiff is entitled to the relief that is necessary to make him whole — may control a court’s decision whether to award front pay in lieu of reinstatement. A treatise states:

The widespread use of the terms "backpay” and "front pay” suggests that these two awards are distinct, perhaps even that § 706(g) [42 USC 2000e-5(g)] authorizes the former by the term "backpay” and authorizes the latter by the phrase "other equitable relief.” The result is that some appellate courts view the Albemarle presumption in favor of a backpay award as inapplicable to a front pay award. It seems more likely, however, that both backpay and front pay are authorized by the "backpay” provision in § 706(g). After all, if the purposes of "backpay” are to compensate an employee for his wage losses and to provide incentive for employer compliance, Congress probably intended the award to include wage losses sustained after the date of judgment. If front pay is an aspect of backpay, the Albemarle presumption should have equal applicability to the front pay award. But, even if the two awards have different statutory origins, their close similarity and common purposes require the same approach to their availability. [2 Sullivan, Zimmer & Richards, Em*144ployment Discrimination (2d ed), § 14.4.3, pp 24-25.]p[8]

A federal court thus must choose a remedy that makes whole a victim of discrimination.

hi

The majority provides for a trifurcated procedure on remand, allocating to the court the determination whether the offer of reinstatement in the instant case was unconditional, allocating to the trier of fact the "resolution of the reasonableness of rejection issue,” and allocating to the court "a reassessment of the appropriate remedy.”9

The majority needlessly requires separate determinations of the conditionality of the reinstatement offer and of the reasonableness of the rejection. In my opinion, there is only a single determination to be made — did the plaintiff fail to mitigate his damages — respecting whether a prevailing plaintiff may recover damages for a period following rejection of an offer of reinstatement. This issue should be decided by the trier of fact just as it is in other wrongful discharge cases in this state,10 and just as it is in the federal system *145where the alleged failure to mitigate concerns the plaintiff’s rejection of an offer of employment (by his original employer) that differs from his original job or where the plaintiff reasonably refuses to accept an offer of employment from another company.11 The issue of the conditionality of a reinstatement offer does not become a matter of law to be decided by the court simply because the employer has offered to reinstate the discharged employee.12

Assuming arguendo that whether an offer of reinstatement was conditional and whether the plaintiff acted reasonably in rejecting such an offer are proper are separate inquiries, each of these inquiries presents a question of fact for the trier of fact,13 and neither may be resolved by the court as a matter of law unless reasonable minds could not *146draw different conclusions concerning conditionality or reasonableness. It will be a rare case in which reasonable minds could not differ concerning the conditionality of an offer or the reasonableness of a rejection.14

IV

The majority states that it disagrees with the "indication” in this opinion that the remedy provision of the Civil Rights Act "does not afford the same wide discretion to fashion a remedy as the *147federal courts enjoy under the federal Civil Rights Act.”15

A

The majority states three reasons. The "first” reason is that § 801 of the Civil Rights Act16 "provides for injunctive relief as well as for damages,” and § 80317 "provides for 'direct or immediate legal or equitable remedies,’ ” (emphasis added in the majority opinion), and "these terms are not defined in statutes nor could we find state precedent providing definitions.”

The majority continues that the Civil Rights Act "is fairly succinct,” and "we are convinced that the Legislature intended that our courts look to the more comprehensive federal statutes and precedent for guidance.” The majority adds that it is also convinced that the "spirit” behind the Civil Rights Act "emulates that behind the federal” act, and that it "could find no direct support indicating a difference between the remedy provisions of the Michigan statutes and the federal ones.”

Section 803 does not support the majority’s construction. Section 803, quoted in its entirety, provides: "This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of the state.” (Emphasis added.) This provision simply repeats the language of the constitution providing for the establishment of a Civil Rights Commission, with powers "provided by law to carry out its purposes.” The next sentence reads: "Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate *148legal or equitable remedies in the courts of this state.”18

Manifestly, § 803 simply repeats the concepts set forth in the constitution, and provides, in effect, only that neither the creation of a Civil Rights Commission, nor the provisions of the Civil Rights Act, shall diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state. That says nothing about what those legal or equitable remedies might be.

The majority is quite right that § 801 provides for "injunctive relief as well as for damages.” The majority reads this as empowering the courts of this state to substitute an equitable remedy for a damage remedy. Section 801 does not provide that the courts of this state may provide an equitable remedy, such as injunctive relief, or a damage remedy, as the court thinks best in the exercise of its discretion. It rather provides that "[a] person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.” (Emphasis added.)

The discretion whether to seek an equitable remedy, such as injunctive relief "as well as” damages, is, confided by the constitution and the Legislature to the person alleging a violation of the Civil Rights Act. That is consistent with the constitutional provision stating that nothing contained in the constitutional provision establishing a Civil Rights Commission or in legislation enacted to carry out the purposes of that constitutional provision shall be construed to diminish the right of a person19 to direct and immediate legal or equitable remedies in the courts of this state.

To state the obvious, damages are a legal rem*149edy, an injunction is an equitable remedy. The choice whether to seek a legal (damage) or equitable (injunctive) remedy is, once again, confided by the constitution, as well as by the Legislature (§ 803), to the person alleging a civil rights violation.

The majority has an extravagant view of judicial power in concluding that it may arrogate to the trial courts of this state the power — so clearly confided by the constitution and the Legislature to the victim of a civil rights violation — whether to seek an equitable remedy as an alternative to a legal remedy.

B

The majority states "second” that this opinion is deficient in removing guidelines found in federal precedent without offering any meaningful standards to fill the void. As set forth earlier in this opinion, there is no need to address this issue at all because Rasheed seeks an equitable remedy rather than a damage remedy, and therefore there is no need to address the question whether, had he sought a damage remedy, the courts of this state could impose an equitable remedy as an alternative, and what the standards might be in such a case.

I do not rely on the federal precedent. I discuss it because the majority relies on the federal precedents that are not in point because the federal cases construe an entirely different remedial provision20 that, as construed by the United States Supreme Court, confides to trial courts the decision whether to provide an equitable or other remedy.

The majority states that "a fair degree of discre*150tion is necessary to implement” the goal of ensuring that victims of discrimination are made whole. I might agree that where a victim of discrimination seeks an equitable (injunctive) remedy, a "fair degree of discretion” on the part of the trial court might be necessary to implement such a goal. That does not mean that where the victim of discrimination seeks a legal (damage) remedy in the exercise of the choice confided to the victim of discrimination by the constitution and the Civil Rights Act, this Court is empowered to confide to the courts of this state a degree of discretion, even a fair degree of discretion, in the name of making the victim of discrimination whole, to deny the victim his choice of a legal (damage) remedy. Comes the revolution there will be strawberries in January, you will like strawberries in January, and you will eat strawberries in January.

C

The majority’s "third” point is that the trifurcated procedure that it imposes is a "clear procedure for resolving matters of this nature,” and that the alternative is to countenance "a convoluted jury question that includes issues of law, as well as issues of fact, in the melange,” and that it seeks to eliminate "uncertainty caused by the lack of clear procedural guidelines.”

There is nothing convoluted about asking a jury to decide whether the terms of an offer of reinstatement were, in the circumstances of the case, conditional, and, if not, whether the victim of discrimination was reasonable in rejecting an offer found by the jury to have been unconditional. The question is far simpler than questions frequently posed to juries in patent and antitrust cases and in. ordinary litigation. The jury can be asked to pro*151vide a special verdict "in the form of a written finding on each issue of fact . . . .”21

As set forth earlier in this opinion,22 United States Courts of Appeals, construing the federal statute, have not found it necessary to create a bifurcated or trifurcated procedure. The majority simply prefers to confide to trial courts, and to remove from jury consideration, questions that the majority is more comfortable having a judge decide. This is judicial legislation, an arrogation of power to the courts in an area in which the majority does not trust the jury.

There is ample power under the traditional approach that permits a trial court to remove from jury consideration any issue of fact that, in the judgment of the trial court, all reasonable persons must reach but one result. The majority will have no difficulty reaching the results it believes are manifestly correct under that approach. It does not need a bifurcated or trifurcated procedure to work its will in individual cases.

V

I would direct that on remand the circuit court should enter a partial judgment, in accordance with this Court’s affirmance of the finding of discrimination, awarding the plaintiff the $50,000 awarded by the jury plus interest. I would further direct that the defendant be required to reinstate the plaintiff — who sought an equitable remedy23 and not a legal remedy24 — as soon as possible.

I would also order the circuit court to set for trial the issue whether the plaintiff failed to miti*152gate his damages by unreasonably refusing the offer of reinstatement tendered by the defendant, and, on a finding that he did not unreasonably reject the offer, require the jury to determine the damages to be awarded until the plaintiff is reinstated, less the amount included therefor in the $50,000 already awarded.