Has the Michigan Department of Civil Rights Changed its Discrimination Investigation Process?

Discrimination Underlined.jpgThis may be premature speculation, but it appears the Michigan Department of Civil Rights - the agency responsible for handling charges of discrimination against Michigan employers - has slightly revised its claims handling procedures.

Employment Discrimination Claims and the Michigan Department of Civil Rights

Specifically, an employee or job applicant may file a complaint with the Michigan Department of Civil Rights offices if the alleged act of discrimination occurred within the past 180 days. The Department is responsible for investigating such claims and enforcing Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). This statute prohibits discrimination against an employee or job applicant based upon that person’s race, color, religion, national origin, age, sex, height, weight, or marital status; sex discrimination includes sexual harassment or discrimination based on pregnancy.

At the conclusion of the investigation, the investigator often prepared a report containing detailed factual findings, even if the investigation did not disclose sufficient evidence to support the claimant’s allegations. In such an instance, the claimant would be issued a "Notice of Disposition and Order of Dismissal."  

Michigan Department of Civil Rights and its Discrimination Investigation Process 

However, recently I've been receiving rather "vanilla" findings that are more similar to those issued by the Equal Employment Opportunity Commission when it closes a discrimination charge and issues a right to sue letter. And in one of the discrimination charges I was handling, opposing counsel also confirmed the same. Specifically, the following excerpt Michigan Department of Civil Rights 

Based upon all the evidence in the file, e.g. any applicable statements of witnesses, analysis of comparatives and review of documents, the department determined that there is insufficient evidence to proceed.     

The dismissal by the Michigan Department of Civil Rights does not restrict the employee who filed the claim from pursuing discrimination claims in court. But the apparent change in the department's policy can have a practical impact with respect to settlement negotiations. 

What Changes May Mean to Employers and Employees

From an employer's perspective, opening up a detailed finding from the Michigan Department of Civil Rights setting forth why a claim of employment discrimination was found to have no merit was like opening up presents on Christmas day - exciting (in a geeky, employment attorney kind of way)! Conversely, no plaintiff's attorney wants to spend time and effort on a case riddled with the equivalent of legal and evidentiary potholes.

So when these issues were identified in the findings, they provided significant leverage for negotiating a resolution favorable to the employer. And while no employer wants to make it a business practice of paying out on questionable claims, there are certainly cost savings to be explored in resolving employment discrimination claims prior to a lawsuit being filed.

While I certainly appreciate my anecdotal observations about the apparent change in the claim an investigation process by the Michigan Department of Civil Rights may not provide a scientifically relevant data set, it is something that we will continue to monitor and employers and employees involved in charges of employment discrimination should be aware of.  

For more information about federal or Michigan employment discrimination, including responding to EEOC or state agency discrimination charges, contact  Jason Shinn who is a Michigan employment law attorney. Mr. Shinn routinely represents clients with respect to complying with employment related laws and, if necessary, handling charges of employment discrimination.

An Employer's Cheat-Sheet to Michigan's Primary Employment Discrimination Statute

Cheat Sheet.jpgEmployment discrimination under Michigan or federal law can be a very complex and nuanced. The following is an overview of important points employers need to be aware of under Michigan's employment discrimination statute:

Employment Discrimination Under Michigan Law 

For Michigan employers the primary state statute that prohibits workplace discrimination is Michigan’s Elliott-Larsen Civil Rights Act (ELCRA).

Michigan's ELCRA prohibits discrimination based on an individual’s race, color, sex, age, religion, national origin, height, weight, or marital status. Additionally:  

  • Filing administrative complaints under ELCRA: An individual who experienced workplace discrimination may file an administrative complaint with the Michigan Department of Civil Rrights. A charge must be filed within 180 days after the alleged discriminatory act or within 180 days after the act was or should have been discovered. 
  • Is filing an administrative charge a prerequisite before filing a lawsuit: It is not necessary to file a charge with the MDCR to preserve an aggrieved employee's statutory claim. Instead, an such an individual may bring a civil action, request injunctive relief, damages, or both directly and initially in circuit court, without exhausting administrative remedies before filing suit. 
  • How long does an individual have to file a lawsuit for discrimination: The period of limitations for a cause of action under the ELCRA is three years. MCL 600.5805(10).
  • Determining when the statute of limitations begins to run: A claim of discriminatory discharge accrues on the date the plaintiff is discharged. And the last day worked will be considered the date of discharge. This means that an employee's severance agreement does not affect the termination date. 
  • Can an employer shorten the statute of limiations: The short answer is that employers can generally shorten the statute of limitations. In this regard, Michigan courts have upheld six-month contractual limitations period in the context of an age discrimination claim brought under the ELCRA.
  • Jury Trials: Michigan's ELCRA provides plaintiffs a right to a jury trial.

Obviously employers will want to have policies and procedures that will eliminate or, at the very least, reduce situations that could give rise to potential employment discrimination claims. In furtherance of this goal, the preceding points should be discussed with your company's employment law specialist. 

For more information about discrimination issues and employment law matters under Michigan or federal law, contact Jason Shinn

Marriage and the Workplace - Not Always a Perfect Match

Marriage.jpgI'm a big fan of marriage; It has definitely been good to me.

But marriage does not always mean it is good for a company ... at least when it comes to hiring, preemployment inquiries, or every day operations. 

Employers, however, that do not understand when they can or cannot make hiring and firing decisions based on marital status run the risk of paying out to the happy couple a money judgment or settlement for marital discrimination. 

Preemployment Inquiries about Marital Status.

Under federal law employers are generally not prohibited from asking questions regarding marital status (but such inquiries may constitute evidence of unlawful discrimination unless otherwise explained). Michigan law is different and employers are expressly prohibited from asking such preemployment inquiries, unless the employer can establish a bona fide occupational qualification for the inquiry. MCL 37.2206. Specifically, the Michigan Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.) prohibits discrimination in hiring based on, among other criteria, marital status. 

Marital Status and Workplace Restrictions Against Hiring a Spouse.

Despite the above restrictions, under Michigan law employers may enforce anti-nepotism policies that prohibit hiring relatives - natural or through marriage - of a current employee. Such policies will not generally constitute discrimination on the basis of marital status in violation of the ELCRA.  

So what is the difference between unlawful discrimination based on marital status and lawful discrimination based on workplace restrictions against hiring a spouse? 

Essentially the Michigan Supreme Court has said that the difference is one of stereotypes: A "no-spouse" rule is not discrimination on the basis of marital status but rather "different treatment based on the fact that one’s spouse works in the same place as the applicant" and this is "not discrimination based on a stereotypical view of the characteristics of married or single persons." Whirlpool Corp v Michigan Civil Rights Comm’n (1986).

Can an Employer's Anti-Nepotism Policy Force Married Employees to Quit?

A situation may arise, however, where two employees marry after having been hired. In that situation a company's anti-nepotism policy restricting spouses from working together may lawfully require one of the spouses to resign or transfer. But as explained below, the policy cannot have an adverse impact on males or females, i.e., it must be applied in a nondiscriminatory manner. 

The Take-away for Employers.

Under Michigan law employers are prohibited from discriminating in hiring based on marital status. But this prohibition will generally not extend to anti-nepotism policies that prevent spouses from working for the same employer. Accordingly, an employer can refuse to hire a spouse of a current employee and that anti-nepotism policy may also compel a spouse to resign or transfer.

To be valid, however, it is important for employers to apply such policies evenhandedly and to make sure the policy does not have an adverse impact on males or females. One way to meet this last criteria is to allow each couple to decide which one would transfer or terminate.

Michigan Court Gives Shareholders Standing to Sue For Discrimination Under Civil Rights Act

Shareholder Agreement.jpgA recent Michigan Court of Appeals Opinion has significant impact on small businesses, employment discrimination claims, and arbitration agreements. This decision is likely to especially impact professional businesses such as law firms and doctors groups.

Specifically, in Hall v Stark Reagan, P.C., two former law partners were forced out of their professional corporation after contesting the involuntary redemption of their shares. The plaintiffs claimed this decision was based on unlawful age discrimination and sued under Michigan's Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.

Employment Discrimination Claims - Who is an Employee

The defendants argued that the plaintiff shareholders lacked standing to sue under the Michigan Civil Rights Act because only "employees" may sue under the Michigan Civil Rights Act and as shareholders of the firm, the plaintiffs instead qualified as employers. 

The Court rejected this argument and reasoned that to merit protection under the CRA, a plaintiff must show some form of nexus or connection between the employer and the status of the nonemployee. The key to liability under the ELCRA is not simply the status of an individual as an "employee." Rather, liability is contingent upon the employer's affecting or controlling that individual's work status.

Accordingly, an employer can be held liable under Michigan Civil Rights Act for discriminatory acts against a nonemployee if the nonemployee can demonstrate that the employer affected or controlled a term, condition, or privilege of the nonemployee's employment.

Limiting Application of Arbitration Provision  

The defendants also argued that the claims were should be submitted to arbitration pursuant to the partnership agreement. The Court disagreed noting that even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.

The test for determining arbitrability of a particular claim under a broad arbitration provision is whether a significant relationship exists between the claim and the agreement containing the arbitration clause, regardless of the legal label attached to the dispute.  

The Take Away

A person's status as a partner will not preclude that partner from asserting a discrimination claim under ELCRA. 

The Court's conclusion regarding the arbitration provision also signals that courts will more carefully scrutinize arbitration provisions to determine if issues are properly subject to arbitration. For this reason, it is important to assess existing arbitration agreements to ensure they stand up to this increased scrutiny.  

Religion in the Workplace: Avoiding Religious Discrimination Claims

Muslim Prayers.jpgThis week marked the beginning of Ramadan, which is the Islamic month of fasting. Participating Muslims generally refrain from eating and drinking during daylight hours. Ramadan is intended to teach Muslims about patience, spirituality, humility and submissiveness to God.

It is also a good reminder for the need to understand restrictions against religious discrimination in the workplace - not only Islamic religion but all religions. 

This is because Michigan employers are generally prohibited from discriminating in employment decisions and conditions on the basis of religion under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and Title VII under federal law. 42 U.S.C. §§ 2000e et seq.; MCL 37.2202; See also 29 CFR 1605.1 et seq. for additional EEOC guidelines concerning religious discrimination.

Three Forms of Religious Discrimination 

Claims of religious discrimination under Title VII are often framed under three general theories:

  • Disparate treatment: An employee may may assert a disparate treatment theory where an employer treats an employee less favorably than other similarly situated employees because of the employee's religious beliefs or practices. For example, in Campbell v. Avis Rent a Car Sys. (pdf) (E.D. Mich. 2006) a Muslim plaintiff contended that she was terminated because of her Muslim religion and not for legitimate, non-discriminatory reasons because no non-Muslim employee had been terminated under similar circumstances; 
  • Hostile Work Environment: Under this theory, an employee may claim that the employer subjected the employee to a hostile work environment that may take the form of pervasive religious slurs or insults. An example of this type of discrimination occurred in EEOC v. Sunbelt Rentals, Inc., (4th Cir. 2008) where the plaintiff suffered severe and pervasive religious discrimination when several co-workers, including one supervisor, repeatedly called him "Taliban" and "towel head," questioned his allegiance to the United States, mocked his kufi and beard and observance of prayers, and made several anti-Muslim comments in the plaintiff's presence; and  
  • Failure to Accommodate: An employee may claim that an employment requirement, although evenhandedly implemented by the employer, conflicts with the person's religious practices. Enforcement of such a requirement against the employee constitutes a violation of Title VII unless the employer demonstrates that it is unable to accommodate the employee's religious practices without undue hardship. This type of claim was seen in EEOC v. Abercrombie & Fitch Stores, Inc. (2011) where the employer was found to have discriminated against a job applicant for its retail store because she wore a Muslim head scarf. The employer unsuccessfully argued that the scarf violated its employee "look policy" and, therefore, was an undue hardship. 

The Take Away

While the preceding examples of religious discrimination involve Muslim religious practices and beliefs, it is important to realize that religious discrimination may involve any belief that constitute a “religion." For example, see the Ohio Employer's Law Blog's discussion on a claim involving a Taco Bell employee and practicing Nazarite's refusal to cut his hair in accordance with his Biblical views. Further, Title VII broadly defines the term "religion" as “all aspects of religious observance and practice, as well as belief." But defining what is a "religion" or what religious accommodation may or may not be appropriate is best addressed in collaboration with a competent employment attorney.

For further information on Muslim religious practices, the Council on American-Islamic Relations provides employers with this overview of Muslim Religious practices (PDF).   

Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law

Changing Gears.jpgA Flint jury recently awarded $535,000 to a white former employee wrongfully fired after making a racial comment. This verdict also highlights important differences when it comes to reverse discrimination claims under Michigan and federal law.

For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.” 

At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him. 

Reverse Discrimination under Michigan and Federal Law

Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.

Under both Michigan and federal employment discrimination law, an employment plaintiff - minority and non-minority - must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:

  1. Was a member of a protected class; 
  2. Suffered an adverse employment action; 
  3. Was qualified for the position; and 
  4. Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Duch v. Mich. Dep't of Corr. (E.D. Mich. Feb. 15, 2011).

Reverse Discrimination Differences under Michigan and Federal Law

In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate "background circumstances" to support the suspicion that the defendant is that unusual employer who "discriminates against the majority." 

In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved. 

Closing Thoughts

Mr. Hecht's verdict is a good reminder of three important points:

  • Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination; 
  • A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
  • There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.