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EEO - Discrimination: Michigan

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Evan Burkholder and Leslie Yulkowski, LeClairRyan

Summary

Discrimination Under the Elliott-Larsen Civil Rights Act (ELCRA)

The Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based on religion, race, color, national origin, age, sex, height, weight and marital status. +MCLS § 37.2101; +MCLS § 37.2202.

Ann Arbor, Detroit, Grand Rapids and Lansing have local requirements addressing discrimination. See Local Requirements.

Employers

ELCRA applies to all employers with one or more employees. +MCLS § 37.2201. The definition of employer includes both public and private employers. The section does not apply to the employment of an individual by his or her parent, spouse or child. +MCLS § 37.2202.

Liability

In addition to holding an employer liable for discriminatory acts committed against an employee, Michigan courts allow personal liability to attach to a supervisor acting as an agent of the employer. +MCLS § 37.2202 (1); See Elezovic v. Ford Motor Co., +472 Mich. 408 (Mich. 2005)

Procedural Timelines

Unlike many states, Michigan does not require a prospective plaintiff to first file an administrative complaint before proceeding to filing a lawsuit in state court. If an employee does want to file an administrative complaint, he or she must file the complaint with the Michigan Department of Civil Rights (MDCR) within 180 days of the alleged discriminatory act. +MCLS § 37.2801.

An employee must file his or her civil cause of action within 3 years of the date of the alleged discriminatory action. +MCLS § 600.5805 (10).

Michigan Department of Civil Rights

The Michigan Division of Civil Rights (MDCR) was created in 1965 in order to provide a mechanism in which to implement the policies promulgated by the Michigan Civil Rights Commission. The MDCR is responsible for preventing discrimination through educational programs that promote voluntary compliance with ELCRA and other antidiscrimination laws. Additionally, the MDCR investigates and resolves discrimination complaints throughout the state of Michigan.

Required Postings

As mandated by the Michigan Department of Civil Rights, every Michigan employer must post the Michigan Law Prohibits Discrimination Poster.

Compensation

ELCRA prohibits an employer from discriminating against an employee on the basis of compensation. +MCLS § 37.2202.

Job Advertisements

Employers shall not advertise positions indicating a preference for an applicant based on religion, race, color, national origin, age, sex, height, weight or marital status. +MCLS § 37.2206 (1).

Prospective Employee Interviews and Applications

Employers shall not attempt orally or in written form to elicit a prospective employee's religion, race, color, national origin, age, sex, height, weight or marital status. +MCLS § 37.2206 (2) (a).

Preferences

Employers shall not use any application indicating a preference for an applicant based on religion, race, color, national origin, age, sex, height, weight or marital status. +MCLS § 37.2206 (1).

Arrests and Convictions

Employers may not discriminate against an employee or applicant based on an individual's criminal record. Employers shall not in connection with an application for employment or with the terms or conditions of employment request, make or maintain a record of information regarding misdemeanor arrests, detention or disposition where a conviction did not result. +MCLS § 37.2205a (1).

Defenses Under the ELCRA

Bona Fide Occupational Qualification

Generally, employers must comply with the antidiscrimination laws contained in ELCRA. In some instances, however, an employer may apply for an exemption on the basis that religion, national origin, age, height, weight or sex is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business enterprise. If an employer does not file for the exemption, the employer will then be forced to show that the BFOQ is reasonably necessary to the normal operation of the business. +MCLS § 37.2208.I.

Bona Fide Seniority or Merit System

ELCRA does not consider it an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system.

Establishing a Claim of Discrimination

To prove a claim of discrimination, an employee must show that:

  1. The employee belonged to a protected class;
  2. He or she suffered an adverse employment action;
  3. He or she was qualified for the position; and
  4. The job was given to another person under circumstances giving rise to an inference of unlawful discrimination. See Hazle v. Ford Motor Co., +464 Mich. 456 (2001).

Remedies

In a civil cause of action an employee can recover both legal and equitable remedies at the discretion of the court to include:

Protected Classes Under the ELCRA

Religion

ELCRA prohibits an employer from discriminating against an employee due to that employee's religion. +MCLS § 37. 2202.

Atheists and Agnostics

Although not specifically mentioned in ELCRA, individuals who are atheists or agnostics are entitled to protection from religious discrimination under ELCRA. See Cline v. The Auto Body Shop, Inc., +241 Mich.App. 155 (2000).

Duty to Accommodate

Unlike the federal statute, ELCRA contains no affirmative duty for employers to reasonably accommodate its employee's religious beliefs. See Ureche v. Home Depot USA, Inc., +2006 U.S.Dist. Lexis 92948 (E.D. Michigan, December 26, 2006); Ludwig v. IPC Print Services, Inc., +2007 Mich. App. Lexis 327 (Mich. App. Ct., February 13, 2007).

Ministerial Exception

Religious organizations are entitled to a ministerial exception in Michigan. This important exception means that qualifying religious organizations do not have to comply with the antidiscrimination laws in ELCRA as long as the following test is met:

  • The employer is a religious institution; and
  • The employee is a ministerial employee. See Weishuhn v. Catholic Diocese of Lansing and St. Mary's Catholic Church, +279 Mich.App. 150 (2008).

Age

ELCRA prohibits an employer from discriminating against an employee based on his or her age. +MCLS § 37. 2202. Unlike the federal statute that limits age discrimination to employees aged 40 or older, ELCRA contains no limitation on the age of the employee for age discrimination claims.

Reverse Age Discrimination

Michigan courts interpret ELCRA to prohibit an employer from discriminating against an employee because of that employee's youth. For example, an employer may violate the age discrimination laws in ELCRA if it terminates an employee because the employee sounded too young on the telephone. See Zanni v. Medaphis Physician Services Corp., +240 Mich.App. 472 (2000).

Bona Fide Retirement System or Policy

ELCRA specifically exempts bona fide retirement policies or systems from its antidiscrimination laws as long as they are not subterfuge to evade the prohibitions contained in ELCRA. +MCLS § 37.2202.

Sex

ELCRA prohibits an employer from discriminating against an employee based on his or her sex. The ELCRA does not identify sexual orientation and gender identity as protected categories. However, the Michigan Civil Rights Commission voted to include those categories under the definition of discrimination because of sex.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

Pregnancy

ELCRA prohibits an employer from discriminating against an employee because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of another. +MCLS § 37.2202.

Additionally, employers may not treat an employee affected by pregnancy, childbirth, or a related medical condition differently for any employment-related purpose from another individual who is not so affected but similar in ability or inability to work, without regard to the source of any condition affecting the other individual's ability or inability to work. For the purposes of this section, a medical condition related to pregnancy or childbirth does not include nontherapeutic abortion not intended to save the life of another. +MCLS § 37.2202.

Reasonable Accommodations

ELCRA does not provide an affirmative duty for an employer to make reasonable accommodations for a female employee who is pregnant, or who may be having work related issues due to her childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of another.

Race

ELCRA prohibits and employer from discriminating against an employee because of that employee's race. +MCLS § 37.2202.

Racial Classifications

If an employer creates a document with racial classifications to be checked by the employee, there must be the option of multiracial with a definition of that term to substantially mean a person with parents of different races. +MCLS § 37.2202a (1) (a). The employer must exclude from any document with racial classifications the term other. +MCLS § 37.2202a (1)(b).

Disability Discrimination Under the Persons with Disabilities Civil Rights Act

The Persons with Disabilities Civil Rights Act (DCRA) prohibits an employer from doing any of the following:

  • Failing or refusing to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position;
  • Discharging or otherwise discriminating against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position;
  • Limiting, segregating, or classifying an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position;
  • Failing or refusing to hire, recruit, or promote an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job;
  • Discharging or taking other discriminatory action against an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job;
  • Failing or refusing to hire, recruit, or promote an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job;
  • Discharging or taking other discriminatory action against an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job;
  • Requiring an individual to submit to a genetic test or to provide genetic information as a condition of employment or promotion.
  • Discriminate against individual because of a disability in admission to, or employment or continuation in, a program established to provide apprenticeship or other training. +MCLS § 37.1202 and +MCLS § 37.1205.

This section does not apply to the employment of an individual by his or her parent, spouse or child. +MCLS § 37.1202.

Advertisements

Employers are prohibited from printing or publishing a notice or advertisement relating to employment indicating a preference, limitation, specification or discrimination based on a disability that is unrelated to the individual's ability to perform the duties of a particular job or position. +MCLS § 37.1206.

Applications

Employers are prohibited from using any written or oral inquiry or form of application that elicits or attempts to elicit information concerning the disability of a prospective employee or that expresses a preference, limitation or specification based on a disability of a prospective employee for reasons contrary to the provisions or purposes of this act. +MCLS § 37.1206.

Records

Employers are prohibited from making or keeping records of information or disclosing information concerning the disability of a prospective employee for reasons contrary to the provisions of this act. +MCLS § 37.1206.

Definition of Disability

A disability relating to employment is defined as follows:

  • A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's qualifications for employment or promotion. +MCLS § 37.1103.

Genetic Information

Employees may voluntarily provide to the employer genetic information that is related to the employee's health or safety in the workplace. Employers do not violate DCRA if they use such information to protect an employee's health or safety. +MCLS § 37.1202.

Unless provided by this section, employers are prohibited to have access, directly or indirectly to the genetic information of an employee or applicant or member of their family. +MCLS § 37.1202.

Permissible Employer Practices

Employers are permitted to do any of the following:

  • Establish policies, programs, procedures or work rules regarding the use of alcohol or illegal drugs;
  • Apply different standards of compensation or different terms, or conditions or privileges of employment pursuant to a bona fide seniority or merit system, transfer system, scheduling system, assignment system, or attendance plan if those standards are not subterfuge to evade the purposes of DCRA; or
  • Establish uniform policies requiring employees who have been absent from work because of illness or injury to submit evidence of the ability to return to work.

Employers may do one of the following:

  • Prohibit an employee who is being compensated under the workers' disability compensation act of 1969 +MCLS § 418.101 to +MCLS § 418.941 for an injury arising out of and in the course of his or her employment with that person from returning to work; or
  • Require an employee who is being compensated under the workers' disability compensation act +MCLS § 418.101 to +MCLS § 418.941 for an injury arising out of and in the course of his or her employment with that person to return to work as provided by law if that person accommodates the employee pursuant to DCRA. +MCLS § 37.1211.

Employer

DCRA defines an employer as a person who has 1 or more employees or a person who as a contractor or subcontractor is furnishing material or performing work for the state or a governmental entity or agency of the state and includes an agent of such person. +MCLS § 37.1201.

Employee

DCRA does not cover employees employed in the domestic service of any person. +MCLS § 37.1201.

Reasonable Accommodation

Employers must accommodate an employee with a disability for the purposes of employment unless the person demonstrates that the accommodation would impose an undue hardship. +MCLS § 37.1102.

Generally an employee has the burden to prove that an employer can accommodate his or her disability. If the employee meets his or her initial burden, the employer must then show that the reasonable accommodation would impose an undue hardship on the employer. Finally, the employee may rebut this claim by showing that there is no undue hardship on the employer. +MCLS § 37.1210.

Undue Hardship

DCRA provides guidelines for employers to follow in order to determine if the cost of the accommodation is an undue hardship. For example, if an employer with fewer than 4 employees is required to purchase equipment to accommodate a person with a disability and the total purchase price required to be paid by the employer is more than the average state of Michigan weekly wage, than the purchase of that equipment imposes an undue hardship on the employer. +MCLS § 37.1210.

Employers employing a temporary employee with a disability are permitted to reduce by 50% any statutory limitation on what is considered an undue hardship under DCRA. +MCLS § 37.1210.

Employers with 15 or fewer employees are not required to restructure a job or alter the schedule of an employee as an accommodation. If an employer is required to restructure or alter the schedule, it will only be for minor or infrequent duties relating to the particular job held by the employee with the disability. +MCLS § 37.1210.

An Employee alleging a violation by an employer to accommodate must notify the employer in writing of the need for the accommodation within 182 days after the date the employee with the disability knew or reasonably should have known that an accommodation was needed. +MCLS § 37.1210. Employers must post notices or use other appropriate means to provide all employees and job applicants with notice of the above requirements. +MCLS § 37.1210.

Public Employers and Nonprofit Organizations 501(c)(3)

Generally, all of the accommodation and undue hardship provisions in +MCLS § 37.1210 that provide bright line rules as to what is and what is not an undue hardship are not applicable to public employers and nonprofit organizations. This means that that the examples provided based on employer size and the average weekly wage are not used to determine whether an accommodation is reasonable or an undue hardship on an employer. +MCLS § 37.1210.

Government Contracts

Contracts in which the state, or a political subdivision, or an agency of this state or a political subdivision of this state is a party shall contain a covenant by the contractor and any subcontractors not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of a disability that is unrelated to the individual's ability to perform the duties of a particular job or position. +MCLS § 37.1209. Any breach of this covenant shall be considered a material breach of the contract.

Training

The Michigan Department of Civil Rights offers education and training programs to employers to assist employers in understanding the requirements of the DCRA. +MCLS § 37.1212.

Equal Pay

Michigan has several laws that prohibit discrimination in the payment of wages to an employee.

Wage Discrimination Under the Workforce Opportunity Wage Act

The Workforce Opportunity Wage Act applies to employers with two or more employees. Under Michigan's Workforce Opportunity Wage Act, an employer shall not discriminate between employees within an establishment on the basis of sex by paying wages to employees in the establishment at a rate less than the rate at which the employer pays wages to employees of the opposite sex for equal work on jobs, the performance of which requires equal skill, effort, and responsibility and that is performed under similar working conditions, except if the payment is made pursuant to a seniority system, merit system, a system that measures earnings by quantity or quality of production or a differential based on a factor other than sex. An employer that is paying a wage differential that violates this shall not reduce the wage rate of an employee to comply. Any amount owing to an employee that has been withheld in violation of this is considered unpaid minimum wages.+MCLS § 408.423.

An employee may the recover the difference between the amount paid and the amount that, but for the violation, would have been paid the employee under this act and an equal additional amount as liquidated damages together with costs and such reasonable attorney's fees as may be allowed by the court. Additionally, an employer can face a civil fine of not more than $1,000. +MCLS § 408.419.

An employee has 3 years from the dates of the violation to bring a civil cause of action for under this section.

Wage Discrimination Under the ELCRA

ELCRA prohibits an employer from discriminating against an employee with respect to employment compensation because of that employee's religion, race, color, national origin, age, sex, height, weight, or marital status. +MCLS § 37.2202.

Wage Discrimination Under Restraint of Trade and Trusts Law

Michigan also prohibits employers of labor employing both males and females from discriminating in the payment of wages as between sexes who are similarly employed. Wage differences based on factors other than sex do not violate this section. Employers in violation of this section are guilty of a misdemeanor. +MCLS § 750.556.

The law requires that no female employee be assigned a task that is disproportionate to her strength, nor employed in any place detrimental to her morals, her health or her potential capacity for motherhood. +MCLS § 750.556.

Wage Disclosure

Michigan employers may not require that employees refrain from discussing or disclosing their wages as a condition of employment or require employees to sign a waiver or other document waiving their right to discuss wages. Similarly, an employer may not discharge, discipline or discriminate against employees who disclose their wages. +MCLS § 408.483a.

Family Medical Leave Act

The State of Michigan does not have its own family medical leave act. Instead, Michigan implements the federal version of the family medical leave act. This means that generally employers with 50 or more employees are required to provide 12 weeks of leave to employees who have previously worked 1,250 hours and are suffering from a serious health condition. See Woodman v. Miesel Sysco Food Service, Co., +254 Mich.App. 159 (2002).

Lactation/Breastfeeding Protections and Accommodations

The Breastfeeding Antidiscrimination Act specifically prohibits public accommodations from discriminating against women who breastfeed. The law applies to all employers and will protect nursing mothers from discrimination and harassment in the workplace. It permits individuals whose rights have been violated to bring a civil action for injunctive relief as well as actual or presumed damages in addition to attorneys' fees and costs. +MCLS § 37.232.

Prohibition Against Discrimination in State Contracts

Contracts in which the state, a political subdivision, or an agency thereof is a party shall contain a covenant by the contractor and his subcontractors not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex, height, weight, or marital status. Any breach of this clause may be regarded as a material breach of the contract. +MCLS § 37.2209.

Veterans Preference

Under the Private Employer's Veterans' Preference Policy Act, Michigan private employers are permitted, but not required, to adopt policies that provide a preference for hiring, promoting or retaining a veteran over another equally qualified job applicant or employee. +2014 Mi. ALS 508. See Recruiting: Michigan. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.

State Militia Status

An employer may not discriminate against an employee or applicant based on their membership in the state militia. +MCLS § 750.398.

Medical Marijuana

Michigan permits medical marijuana use for patients with debilitating medical conditions. Qualifying patients may possess up to two-and-a-half ounces of the drug. Included among the qualifying conditions are:

  • Alzheimer's disease;
  • Cancer;
  • Crohn's disease;
  • Glaucoma;
  • HIV or AIDS;
  • Hepatitis C; and
  • Lou Gehrig's disease (ALS).

However, the Michigan Medical Marijuana Act (MMMA) does not require an employer to accommodate marijuana use in any workplace. +MCLS § 333.26427. In Casias v. Wal-Mart Stores Inc., the federal Sixth Circuit Court of Appeals, interpreting Michigan law, held that the MMMA does not excuse a failed drug test that results from medical marijuana use. +695 F.3d 428.

Additionally, employers should not authorize employees who are under the influence to perform duties that may constitute a safety hazard.

Recreational Marijuana

Under the Michigan Regulation and Taxation of Marihuana Act (the Act), it is legal for an adult 21 or over to possess, process, consume, or give to another adult up to 2.5 ounces of marijuana and, in his or her residence, to possess up to 10 ounces and grow and process up to 12 plants.

The Act, however, prohibits a person from consuming marijuana in a public place, except for any areas designated for such consumption that are not accessible to a minor under the age of 21. A person is also prohibited from operating a motor vehicle while consuming or under the influence of marijuana.

The Act also does not:

  • Require an employer to permit or accommodate marijuana use in the workplace or on employer property;
  • Prevent an employer from refusing to hire, firing, disciplining, or otherwise taking an adverse employment action against a person who violated a workplace drug policy or was working while under the influence of marijuana; or
  • Prevent a person who owns, occupies, or manages property from prohibiting or regulating the consumption, cultivation, distribution, processing, sale, or display of marijuana and marijuana accessories on that property.

See Employee Health: Michigan.

Local Requirements

Ann Arbor Discrimination

Similarly, in Ann Arbor, it is illegal for an employer to discriminate against an employee based on a condition of pregnancy, physical or mental limitation, source of income, family responsibilities, educational association, sexual orientation, gender identity or HIV status of another person or that person's relatives or associates. +Ann Arbor, Michigan Code of Ordinances Sec. 9:151; +Ann Arbor, Michigan Code of Ordinances Sec. 9:155.

Detroit Discrimination

For example, in Detroit, it is not only illegal to discriminate against an employee based on compensation, religion, race, color, national origin, age, sex, height, weight, familial status or marital status, but also sexual orientation, or gender identity or expression. +Detroit, Michigan Code of Ordinances Sec. 27-3-1; +Detroit, Michigan Code of Ordinances Sec. 27-2-10.

Grand Rapids Discrimination

The City of Grand Rapids recognizes and declares to be a civil right the opportunity to obtain employment without discrimination based on race, color, creed, religion, national origin, ancestry, age, gender, marital status, disability, height, weight, sexual orientation or gender identity. Further, it is against the public policy of the City for an employer to refuse to hire or otherwise discriminate based on a protected characteristic, unless the decision is based on a bona fide occupational qualification. +Grand Rapids, Michigan Code of Ordinances Sec. 1.347.

Lansing Discrimination

Lansing's Human Rights Ordinance makes it unlawful for an employer with five or more employees to discriminate based on a person's actual or perceived race, color, religion, national origin, sex, age, height, weight, marital status, physical or mental disability, family status, sexual orientation, gender identity or expression, veteran status or HIV status, source of income, ancestry, student status, housing status, political affiliation or belief, or service in armed forces +Lansing, Michigan Code of Ordinances Sec. 297.01; +Lansing, Michigan Code of Ordinances Sec. 297.02; +Lansing, Michigan Code of Ordinances Sec. 297.03; +Lansing, Michigan Code of Ordinances Sec. 297.08.

Future Developments

There are no new developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > EEO - Discrimination

Michigan Department of Civil Rights