Employment discrimination is a complex and evolving field of law that aims to protect workers from discrimination in all terms, conditions, and/or privileges of employment. Michigan is an at-will employment state and an employer does not need to a reason for terminating an employee. There are also no laws that prohibit an employer from treating employees poorly or even for being cruel. However, if the reason for the termination or mistreatment is based on a protected class (e.g., race, religion, etc.) then the employer has run afoul of the law and the employee is protected.
Federal and state laws prohibit an employer from discriminating against an employee because he or she belongs to a protected class. Under federal law, protected classes include national origin, color, pregnancy, race, religion, sex, disability, age (40 years or older), and anyone who complains about discrimination or participates in a concerted activity related to complaints about discrimination. The group of federal statutes that protect employees are Title VII of the Civil Rights Act of 1964, 42 USC 1981, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act, commonly referred to as the ADEA. While Title VII and the ADA only cover employers with 15 or more employees and the ADEA covers employers with 20 or more employees, 42 USC 1981 covers all employers regardless of the size of the employer or the number of employees. However, 1981 is limited as it exclusively prohibits race based discrimination and does not cover pregnancy, religion or sex—as with Title VII—discrimination against employees 40 years of age or older—as with the ADEA, or disability discrimination—as with the ADA.
Michigan has similar statutes that protect employees against discrimination. The Michigan Elliott-Larsen Civil Rights Act (ELCRA) went into effect in the 1970s and covers all employers regardless of size. It not only prohibits discrimination based on religion, race, color, national origin, sex, age and retaliation (as with Title VII and 1981 above) but also includes height, weight, and familial/marital status. Additionally, ELCRA prohibits not just discrimination against employees 40 years of age or older but also employees who are discriminated against because of their youth are also protected. Finally, the Michigan Persons with Disabilities Civil Rights Act prohibits discrimination based on a disability or a perceived disability by an employer.
In addition to being more limited in the areas covered by Michigan law, federal law also has barriers to finding redress in court. Under Title VII, the ADEA, and the ADA, an employee must first exhaust his or her administrative remedies before filing a lawsuit. This means that an employee must file a charge with the Equal Employment Opportunity Commission (EEOC) and wait for a determination to be received before filing a lawsuit. The general rule for the EEOC is that a charge of discrimination must be filed within 180 calendar days of when the alleged discrimination took place. However, since Michigan has a state civil rights agency that enforces laws that prohibit employment discrimination on the same basis, the filing deadline is extended to 300 calendar days. This is incredibly important as a failure to timely file a charge with the EEOC can prevent an employee from bringing a claim under Title VII, the ADEA, or the ADA, no matter how meritorious his or he claims would have been.
Once an EEOC complaint has been filed, an employee must wait for a determination from the EEOC before a federal lawsuit can be filed. This happens after the EEOC has completed its review of the charge or after 180 days have expired, at which point the EEOC will issue a notice of right to sue. Once an employee has this notice, he or she has 90 days to file a federal lawsuit or otherwise the claims, no matter how meritorious, cannot be brought in court. Not included in this requirement are claims brought under 42 USC 1981, which does not have a provision requiring an exhaustion of administrative remedies and has a four-year statute of limitations in which to file suit.
The ECLRA creates a direct cause of action, which means that there are no administrative remedies to exhaust. Under ELCRA, an employee can bring a claim within three years of the alleged discrimination. However, even though Michigan is an at-will employment state, often there are employment agreements that an employee must sign before beginning employment. These employment agreements can vastly change the prescribed statute of limitations and can even limit access to the courts with arbitration agreements. In Michigan, employment agreements that limit claims to arbitration and even reduce the statute of limitation to as short a six months have been found to be enforceable. If an employee feels that discrimination has occurred, an attorney should be contacted as soon as possible to determine what limitations might be placed on a claim.
Once discrimination has occurred and a lawsuit has been filed in under state or federal law, it is time to prove that the discrimination occurred. In general, there are two types of employment discrimination. An employee must make an initial showing in order to bring either claim. In Latin the term is prima facie and it directly translates to “at first face” or “at first appearance” but from a practical standpoint, it is what an employee must first prove in order to pursue a claim for employment discrimination. The first type of employment discrimination is disparate impact. To prove a disparate impact claim, an employee must show that an employer has a policy, procedure, or work requirement that, although not discriminatory on its face, causes a disproportionate amount of people in a protected class to be disparately impacted without a necessary business justification. For example, if an employer restricts the distance a person can live from the place of employment and a certain protected class is not represented in that geographical area then this could be discrimination if the employer does not have a valid business necessity for the restriction. The other common area where this occurs is when there are educational requirements for entry-level positions and a protected class is disparately impacted even though there is no justification for the requirement.
The other type of employment discrimination is a disparate treatment claim – a traditional employment discrimination claim. Preliminarily, it should be noted that the discrimination does not have to be the only reason, or even the main reason for the discriminatory action. It only has to be “a” reason. In order to make a prima facie showing of disparate treatment, an employee must show that he or she is a member of a protected class as described above and that he or she suffered an adverse employment action. The term “adverse employment action” is incredibly broad in Michigan and is not limited to termination. An adverse employment action can include an employee receiving a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Michigan even includes “harassment” and “other” as potential actions that could show an adverse action.
There are two ways that an employee can then prove the final element of a prima facie case of disparate treatment—either through direct evidence and circumstantial evidence (commonly referred to as the McDonnell-Douglas burden shifting analysis, which will be explained below). Before engaging in a burden shifting analysis, it must first be determined whether an employee can presented direct evidence of discrimination. Where an employee presents direct evidence of discrimination, the McDonnell-Douglas framework does not apply, and an employee can proceed directly to trial on the claim. Direct evidence, if believed, requires the conclusion that discrimination was a motivating factor in the employer’s actions. An example of direct evidence would exist where the decision maker at the time of the discharge or an adverse action tells the employee that the reason for the discharge is the employee’s protected class membership or, more commonly, uses a racial slur or makes a derogatory comment that would lead a fact finder to believe that the decision maker was predisposed to discriminate against the employee.
Even if there was no direct evidence of discrimination, an employee can still prove his or her claims via the McDonnell-Douglas burden shifting. Proving disparate treatment using the “shifting burden” of production of evidence approach is essentially a three-step process. Initially, the plaintiff must show an adverse employment action as previously described. Once an employee has shown an adverse action was taken against him or her, the burden then shifts to the employer who must articulate a legitimate, nondiscriminatory business justification for the challenged action. The burden of producing evidence then shifts back to the employee, who must produce evidence that the employer’s justifications are merely a pretext for discrimination. Several courts have stated that an employee may establish pretext by proving that (1) the reasons had no basis in fact; (2) if they have a basis in fact, they were not the actual factors motivating the decision; or (3) if they were factors, they were insufficient to justify the decision.
For example, if an employee was terminated (the adverse action) for what the employer claims was showing up late for work (the legitimate, nondiscriminatory business justification) but someone else that was not in the employees same protected class was not terminated for the same behavior (pretext) then an employee would have a valid claim for employment discrimination. Similarly, if an employee can show that he or she was not even late to work as the employer claims, then there would also be a valid employment discrimination claim since the employer’s reason for the termination would have no basis in fact.
There are also more specific showings required based on the circumstances of each case. If an employee claims that he or she did not receive a promotion, the employee must show that the he or she was qualified for the position for which he or she applied. Another way an employee may be discriminated against is through a hostile work environment. This is where an employee of a protected class is subject to unwelcome conduct or communication on the basis of the protected status, the unwelcome conduct or communication was intended to, or did, interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and that the employer either engaged in the conduct or knew about it and did nothing to stop it. For this type of claim, whether the unwelcome conduct or communication was severe or pervasive enough to create a hostile work environment, as opposed to a mere offensive utterance, depends on the frequency of the conduct and whether it unreasonably interferes with an employee’s work performance.
In an employment discrimination case, an employee is entitled to several different types of damages. These include back pay and benefits, reinstatement, attorney fees, future loss of income and benefits, and pain and suffering (including mental anguish, stress, and humiliation). If an employee is terminated, her or she has a duty to “mitigate damages.” This means that an employee who is terminated must seek other employment if able and any income from the new employment would offset an award of future economic damages. If, however, an employee is unable to find other employment or unable to work due to the stress and mental anguish caused by the employer’s unlawful conduct then the employer can be on the hook for economic damages to compensate an employee for the rest of his or her life. However, an employer may also limit its damages with ‘‘after-acquired evidence.’’ The after-acquired evidence rule applies when the employer uncovers evidence after the adverse action, such as pre-hire misrepresentations or misconduct, which would have resulted in an earlier discharge. When this happens, the employee may be limited to back pay until the discovery of the after-acquired evidence.
If an employee believes that he or she has been subject to discrimination or is suffering a hostile work environment, one of the most important things to do is to start documenting everything. Memory fades and days may blend. However, if an employee keeps track of adverse actions, comments, and even his or her own schedule, it will help prove the case moving forward. Many cases have been won simply because an employee had a recording of a manager or another employee making derogatory comments about a protected class. An employee should consult with an attorney if there are employer policies against cell phones or recordings. Similarly, a paper-trail of complaints will not only help show that an employer knew of the misconduct but will also prevent an employer from claiming that it did not know about the misconduct.
Employment discrimination can also be detrimental outside of work. Research has shown that racial discrimination is a stressful experience for non-whites. In one study conducted by Klonoff and Landrine (1999), 95% of a sample population of African Americans reported that racial discrimination was a stressful experience. The link between stress and health has been the topic of numerous studies, and it is this link that will form the basis for the discussion of racism-related dysfunction. Id. Racism-related stress has been identified by numerous researchers as an etiological basis for the psychological and physiological dysfunction experienced by non-whites. Id. Exposure to discrimination can cause a person to become anxious, paranoid, angry, helpless/hopeless, frustrated, resentful, and fearful. These stress responses can affect one’s ability to function in school, work, and social settings as well as increasing the potential for violent out bursts and suicidal ideations. There is a correlation between personal experiences with racism and lower self-concept, higher levels of hopelessness, and depressive symptoms. It is likely that perception of institutional racism will evoke similar responses if one considers all forms of racism-related stress as having a negative impact on psychological well-being. “The evidence is compelling, and growing, that racism is pathogenic with respect to a variety of physical and mental health outcomes.”
Employment discrimination happens every day and often goes unreported or goes without redress. The laws that are in place provide myriad protection to employees but only work if employees avail themselves of their protection. Employment discrimination is a complicated area of law and good attorney can help navigate pitfalls and ensure that an employee’s rights are protected and grievances addressed.