Time for suing employment discriminationA recent Michigan Court of Appeals decision shows the value in smartly drafting your employment applications and related hiring documents so they double to protect the business from employment discrimination claims.   

Going Deeper: 

Specifically, a case captioned McMillon v. City of Kalamazoo, (MI Court of App. Jan. 21, 2021) involved a plaintiff who applied for a position with the Kalamazoo Department of Public Safety in 2004. As part of the 2004 hiring process, she filled out and signed an employment application. Under the application, Plaintiff agreed that any lawsuit against the City arising out of her employment or termination must be filed within nine months of the event giving rise to the claims or be forever barred. 

The City declined to offer her a position on July 21, 2004. But it kept her application and other hiring documents on file. 

Later in mid-2005, the City re-interviewed Plaintiff for another position. The City did not require her to fill out another application and used the same background check used in 2004. But this time, Plaintiff was offered employment in September 2005.

Fast forward to May 2019, and Plaintiff sued the City. She alleged six claims for various forms of discrimination, retaliation, and harassment. However, the City moved to dismiss those claims by arguing Plaintiff’s 2004 employment application shortened the applicable statute-of-limitations (the time when a lawsuit must be filed) to nine-months. 

The Plaintiff’s attorney responded that the 2004 employment application was not binding because the City denied her employment in 2004, and it hired her about 18 months later. Thus, the City should have been required to “restart” the hiring process, including having Plaintiff “repeated all requirements for employment.”  

The Court rejected this argument. It reasoned there was no “restart,” because the City did not require her to complete a new employment application or require her to undergo the various requirements imposed on other applicants. 

Presumably, if plaintiff ‘repeated all requirements for employment,’she would have also completed a new employment application, defendant would have conducted a second background check on her, and she would have been required to submit to the same previously completed tests. But she did not.

Thus, the Michigan Court of Appeals agreed with the trial court’s dismissal because the nine-month limitations period in the employment application barred her employment discrimination claims. 

Why this Matters for Employers and Employees:

In reading the McMillon opinion, the City dodged a bullet. And I think there are issues in the opinion that suggest the decision should have gone the other way. But it is unclear from the opinion if those issues were overlooked by Plaintiff’s legal counsel or were raised and the Court disagreed.

In any event, for employers, this case is an excellent reminder to ensure your hiring documents and procedures maximize protections against liability under applicable federal and Michigan employment discrimination laws. 

Consider, for example, the plaintiff suing the City of Kalamazoo would have had three years to pursue her claims under Michigan’s primary anti-discrimination statute (Elliott-Larsen Civil Rights Act or ELCRA). But the City smartly shortened the limitation period down to just nine-months, which allowed it to avoid costly and uncertain litigation on the merits. Even so, adding language to your employment documents to shorten the statute of limitations requires careful planning. This is because the filing period for some employment claims cannot be shortened. Thus, employers must understand how to properly draft for those exceptions.   

Conversely, this case should be a stark warning for employees to make sure they understand what you sign. Whether it is non-compete restrictions, employment agreements, or employee handbooks, we routinely turn-away matters because rights or remedies have been signed-away or are limited by what the person previously signed. 

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws, or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.