Michigan Litigation Law
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Employment

Simple Explanation of Michigan's Civil Rights Law Relating to Employment

Employment Regulation Under Michigan's Civil Rights Act

Under the ELCRA, employers, employment agencies, and labor organizations may not discriminate against employees, individuals, members, or applicants on the basis of membership in one of the enumerated protected groups. MCL 37.2202–.2204. The act protects employees from discrimination in all aspects of the employment relationship, including, but not limited to, hiring, training, demotion, transfer, promotion, discipline, compensation, and discharge. It also protects employees from harassment on the basis of protected status. See Malan v General Dynamics Land Sys, 212 Mich App 585, 538 NW2d 76 (1995) (nothing in ELCRA suggests that prohibition against harassment extends only to harassment of sexual nature).

Employers who have one or more employees are covered, as are the state, its subdivisions, and its agencies, including counties, cities, villages, townships, and school districts. MCL 37.2103(g), (h), .2201(a).

An agent of an employer may be individually sued under the ELCRA. Elezovic v Ford Motor Co, 472 Mich 408, 697 NW2d 851 (2005).

Protection under the ELCRA does not extend to independent contractors. McCarthy v State Farm Ins Co, 170 Mich App 451, 453, 428 NW2d 692 (1987). However, in McClements v Ford Motor Co, 473 Mich 373, 702 NW2d 166, amended, 474 Mich 1201, 704 NW2d 68 (2005), an ELCRA case, the supreme court held that a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker’s employment. On a motion for rehearing, the court amended its previous opinion by replacing the phrase “the terms, conditions or privileges” with “a term, condition, or privilege,” and the phrase “alter the terms and conditions of employment” with “affect an individual’s employment.”

What is the Bona Fide Occupational Qualification?

An employer may be exempt from the prohibitions of the ELCRA if it can show “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 or enterprise.” MCL 37.2208. Such an exemption may be obtained from the MCRC, which will grant an exemption “[u]pon sufficient showing.” Id. An employer who has not obtained an exemption from the MCRC bears the burden of proof in any litigation “that the qualification is reasonably necessary to the normal operation of the business.” Id.; see also Micu v Warren, 147 Mich App 573, 382 NW2d 823 (1985) (remand necessary to determine whether height restriction reasonably necessary to normal operation of fire department).

The U.S. Supreme Court held in a Title VII case that the BFOQ exception was meant to be an “extremely narrow exception to the general prohibition of discrimination.” Dothard v Rawlinson, 433 US 321 (1977).

In Reed v County of Casey, 184 F3d 597 (6th Cir 1999), plaintiff female deputy was involuntarily transferred from first shift to third shift because of a state regulation requiring that a female deputy be present whenever a female inmate was lodged at the jail. Rather than accept the transfer, plaintiff quit and filed a sex discrimination suit. The Sixth Circuit held that the decision to transfer plaintiff was justified as a BFOQ because the county was obligated to abide by the state regulation requiring the presence of a female deputy. Defendant also established that other alternatives, such as transporting third-shift female prisoners to other jails or calling plaintiff in as needed, were not reasonable.

In Everson v Michigan Dep’t of Corr, 391 F3d 737 (6th Cir 2004), the Sixth Circuit held that the female gender was a BFOQ for certain positions in housing units at female prisons because barring males would(1) significantly enhance security at the facilities, (2) decrease the likelihood of sexual abuse, and (3) protect the female inmates’ privacy rights.

What is the Difference Between Disparate Treatment and Disparate Impact?

To prove disparate treatment, a plaintiff must show by a preponderance of evidence that the defendant intentionally discriminated against him or her. To prove disparate impact, a plaintiff need not prove intent; rather, the plaintiff must show that employment practices that are facially neutral concerning different groups in fact fall more harshly on one group than on another and that this disparate impact cannot be justified by business necessity. Smith v Consolidated Rail Corp, 168 Mich App 773, 776, 425 NW2d 220 (1988).

In Duranceau v Alpena Power Co, 250 Mich App 179, 646 NW2d 872 (2002), the court of appeals described the difference between disparate treatment and disparate impact as follows:

Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially-neutral employment policy has a discriminatory effect on members of a protected class.

Both the ELCRA and Title VII also recognize harassment as a form of disparate treatment. See Harris v Forklift Sys, 510 US 17 (1993); Malan v General Dynamics Land Sys, 212 Mich App 585, 538 NW2d 76 (1995).

What is Disparate Treatment Under Michigan's Civil Rights Act?

A plaintiff who proceeds under the disparate treatment theory must prove that his or her membership in a protected group was a motivating factor in the challenged employment decision, i.e., one of the things that made a difference in the employer’s decision. “The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.” International Bhd of Teamsters v United States, 431 US 324, 335 n15 (1977). Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Id. Disparate treatment may be established by direct or indirect evidence. Harrison v Olde Fin Corp, 225 Mich App 601, 606, 572 NW2d 679 (1997).

You must show that you were treated differently from similarly situated employees, i.e., employees who are similar to the plaintiff in “all relevant aspects.” In Louzon v Ford Motor Co, 718 F3d 556 (6th Cir 2013), the Sixth Circuit ruled that plaintiff was not required to show that he and his comparators reported to the same supervisor. The Sixth Circuit held that “[s]uch a requirement would render any plaintiff’s burden virtually impossible, even at the prima facie stage.” Id. at 564.

Similarly, in Bobo v UPS, 665 F3d 741 (6th Cir 2012), the Sixth Circuit explained that the controlling standard is this: a plaintiff must “show only that he and his proposed comparators were similar in all relevant respects and that he and his proposed comparators engaged in acts of comparable seriousness.” 665 F3d at 751 (citations omitted).

What is Direct Evidence Under Michigan's Civil Rights Act?

Direct evidence is evidence that, if believed, would prove the existence of the employer’s unlawful motive without benefit of presumption or inference. Direct evidence means facts requiring a conclusion that unlawful discrimination was at least one motivating factor for the employer, such as discriminatory remarks made in connection with an adverse employment decision. Generally, courts do not consider stray, isolated, or vague comments to be sufficient to constitute direct evidence of discrimination.

Where there is direct evidence of discrimination, the plaintiff need not establish a prima facie case within the framework of McDonnell Douglas Corp v Green, 411 US 792 (1973). Instead, the case should proceed as an ordinary civil matter. De Brow v Century 21 Great Lakes, Inc(After Remand), 463 Mich 534, 620 NW2d 836 (2001).

What if There is No Direct Evidence?

In the absence of direct evidence, Michigan courts generally apply the “shifting burden” analysis adopted by the U.S. Supreme Court in McDonnell Douglas Corp v Green, 411 US 792 (1973). Under this analysis, plaintiff may establish a prima facie case by proving that he or she:

  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 a person who was not a member of the protected class.
    • The final element may also be established by showing that for the same or similar conduct, plaintiff was treated differently than similarly situated employees who were not members of plaintiff’s protected class.

Employment actions that are de minimis are not actionable under Title VII. Bowman v Shawnee State Univ, 220 F3d 456, 462 (6th Cir 2000). To prevent lawsuits based on trivial workplace dissatisfactions, courts require that a plaintiff prove the existence of an “adverse employment action.” Hollins v Atlantic Co, 188 F3d 652, 662 (6th Cir 1999). A plaintiff claiming employment discrimination must show that she suffered “a materially adverse change in the terms of her employment”; a “mere inconvenience or an alteration of job responsibilities” or a “bruised ego” is not enough. Kocsis v Multi-Care Mgmt, 97 F3d 876, 885–886 (6th Cir 1996) (citations omitted).

If you can satisfy this test, the burden then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason” for its actions. McDonnell Douglas Corp, 411 US at 802.

The McDonnell Douglas shifting burden analysis does not require a plaintiff to establish his or her qualifications for employment relative to the successful candidate in order to establish a prima facie case of discrimination. The qualification portion of the analysis requires only that the plaintiff show he or she was qualified for the position. Hazle v Ford Motor Co, 464 Mich 456, 628 NW2d 515 (2001). When the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision, the defendant may offer evidence of the various candidates’ qualifications to show why the successful candidate was chosen. Id.

What is a Pretext for Discrimination Under Michigan's Civil Rights Act?

If the defendant articulates legitimate nondiscriminatory reasons for its decision, the burden shifts back to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant … were a pretext for discrimination.”

The plaintiff may establish pretext by showing that:

  1. The reasons the defendant gave had no basis in fact;
  2. If the reasons had a basis in fact, they were not the factors that motivated the decision; or
  3. If they were the factors, they were insufficient to justify the decision.

By far the most common proof of pretext is evidence that the plaintiff was treated less favorably than similarly situated employees who were not in the plaintiff’s protected group.

What is Same-Actor Inference Under Michigan's Civil Rights Act?

Where the same individual hires or promotes and subsequently terminates or disciplines an employee, an inference is raised that discrimination was not the motivating factor. The same-actor inference provides a defense to a plaintiff’s pretext rebuttal.

However, one court has cautioned that although the same-actor inference may be appropriate at trial, “for the Court to do the same at the summary judgment stage would be contrary to the rule that all ‘inferences to be drawn from the underlying facts … must be viewed in the light most favorable to the party opposing the motion,’ which in this case is Plaintiff.” Ruffin v Schupan & Sons, Inc, No 97-CV-73532-DT, 1998 US Dist LEXIS 20103 (ED Mich Nov 20, 1998).

What is a Mixed Motive Under Michigan's Civil Rights Act?

Where plaintiff introduces direct evidence of discrimination, but the employer establishes that it would have made the same adverse employment decision absent the prohibited motivation, the employer may avoid liability. Unlike many other courts, the Sixth Circuit and Michigan courts apply this test to liability rather than only to relief and remedy. Note that the Sixth Circuit has held that a plaintiff must give proper notice when bringing a mixed-motive claim. Spees v James Marine, Inc, 617 F3d 380 (6th Cir 2010) (complaint provided notice of mixed-motive claim, as did plaintiff’s motion for summary judgment and response to defendant’s summary judgment motion).

Currently, under Title VII, an unlawful employment practice is established when the complaining party establishes that race, color, national origin, or sex was a motivating factor for any employment practice, even if other factors also motivated the practice. 42 USC 2000e-2(m). If an employer can demonstrate that it would have taken the same action in the absence of the impermissible motivating factor, the plaintiff’s relief is limited to injunctive and declaratory relief, costs, and attorney fees. 42 USC 2000e-5(g)(2)(B)(i).

In Michigan, an employer may avoid liability altogether by proving that it would have taken the same adverse employment action in the absence of discrimination.

What is a Disparate Impact Under Michigan's Civil Rights Act?

Under the disparate impact theory, a plaintiff challenges an employment practice that is neutral on its face on the ground that it burdens a protected class more harshly than other employees. Farmington Educ Ass’n v Farmington Sch Dist, 133 Mich App 566, 572, 351 NW2d 242 (1984).

A plaintiff need not prove the defendant’s discriminatory motive in a disparate impact case.

A plaintiff must establish that an employment policy that appeared neutral actually had a substantial adverse impact on a protected group. Rowe v Cleveland Pneumatic Co, Numerical Control, Inc, 690 F2d 88 (6th Cir 1982). If a plaintiff establishes this impact, the defendant has the burden of proving that the negative impact was due to job relatedness or was required as a matter of business necessity. Id. If the defendant carries this burden, the focus of the case shifts to whether there were less restrictive alternatives. Albemarle Paper Co v Moody, 422 US 405, 425 (1975).

A classic example of a prima facie case of disparate impact is a hiring or promotion test that affects people of one race more harshly than others. In that case, the plaintiff must show:

  • “‘that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.’” Smith, 168 Mich App at 776 (quoting Albemarle Paper Co, 422 US at 425).

If the plaintiff meets this standard, the employer must show the exams:

  • “have a ‘manifest relationship to the employment in question.’” Id.

In Donajkowski v Alpena Power Co, 219 Mich App 441, 556 NW2d 876 (1996), aff’d, 460 Mich 243, 596 NW2d 574 (1999), the court reversed summary disposition for the employer where plaintiff presented evidence that a reclassification and wage freeze affected women more harshly than men.

However, in Williams v Ford Motor Co, 187 F3d 533 (6th Cir 1999), plaintiffs alleged that defendant discriminated against African-American applicants for unskilled hourly employment by using a preemployment test that measured reading comprehension, math skills, vision, and manual dexterity. Applying the EEOC’s Uniform Guidelines on test validity, the court held that the employer’s selection procedure was manifestly job-related and nondiscriminatory.

What is Harassment Under Michigan Civil Rights Act?

Both the ELCRA and Title VII recognize harassment as a form of disparate treatment. See Harris v Forklift Sys, 510 US 17 (1993); Malan v General Dynamics Land Sys, 212 Mich App 585, 587, 538 NW2d 76 (1995). There are five elements to establish an actionable claim of workplace harassment:

  • The employee belongs to a protected classification;
  • The employee was subject to unwelcome harassment;
  • The harassment complained of was based on membership in a protected classification;
  • The harassment complained of affected a term, condition, or privilege of employment;
  • Respondeat superior.

In a hostile work environment case, the test is whether the workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment. Harris (applying Title VII). This is not a mathematically precise test, and no single factor is required. One must look at all the circumstances, including:

  1. The frequency of the discriminatory conduct;
  2. Its severity;
  3. Whether the conduct was physically threatening;
  4. Whether it unreasonably interfered with the employee’s work performance;
  5. Its effect on the employee’s psychological well-being. Id. at 22–23.

The employee need not show that the harassment seriously affected the employee’s psychological well-being or resulted in injury. Rather, the employee need only show that the environment “would reasonably be perceived, and is perceived, as hostile or abusive.”

In Vance v Ball State Univ, ___ US ___, 133 S Ct 2434 (2014), a racial harassment case, the Supreme Court clarified the standard for determining who is a “supervisor” for purposes of vicarious liability (respondeat superior) under Title VII. To qualify as a “supervisor,” the employee must be “empowered by the employer to take tangible employment actions against the victim,” i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. 2437 (citation omitted). It is not sufficient for the harassment plaintiff to prove that the employee exercised direction over the plaintiff’s daily activities.

The U.S. Supreme Court has enunciated an affirmative defense for employers to avoid Title VII liability for harassment by supervisors, where the harassment has not culminated in a tangible adverse employment action such as discharge, demotion, or undesirable reassignment. Where there has been a tangible job detriment, an employer will be held strictly liable for a supervisor’s harassment. Burlington Indus v Ellerth, 524 US 742, 759 (1998). In Faragher v City of Boca Raton, 524 US 775, 806–809 (1998), the Supreme Court explained that in cases where the employee has not suffered a tangible job detriment, an employer may avoid liability upon proving a two-pronged defense:

  1. That it acted reasonably to prevent and correct the harassment and
  2. That the employee unreasonably failed to complain.

In Chambers v Trettco, Inc, 463 Mich 297, 614 NW2d 910 (2000), the supreme court held that the principles announced by the U.S. Supreme Court in Ellerth and Faragher do not apply to actions for sexual harassment brought under Michigan’s ELCRA.

What is Racial Harassment Under Michigan's Civil Rights Act?

The elements and burden of proof that a plaintiff must meet are the same for racially charged harassment as for sexually charged harassment. Harrison v Metropolitan Gov’t, 80 F3d 1107, 1117–1118 (6th Cir), cert denied, 519 US 863 (1996). To establish a claim of racial harassment, a plaintiff must prove:

  1. That the plaintiff was a member of a protected class;
  2. That the plaintiff was subjected to unwelcome racial harassment;
  3. That the harassment complained of was based on race;
  4. That the harassment had the effect of unreasonably interfering with the plaintiff’s work performance and creating an intimidating, hostile, or offensive work environment; and
  5. Respondeat superior.

The Sixth Circuit has held that in racial harassment cases, the plaintiff must show that:

  1. He or she was subjected to “repeated slurs” and
  2. The employer tolerated or condoned the harassment.

Davis v Monsanto Chem Co, 858 F2d 345, 349 (6th Cir 1988), cert denied, 490 US 1110 (1989).

The district court must consider the “totality of the circumstances.”

What is Age Harassment?

Unlike the federal ADEA, which protects only those individuals who are 40 years of age or older, the ELCRA has no age limits, either maximum or minimum, for coverage. In Zanni v Medaphis Physician Servs Corp, 240 Mich App 472, 612 NW2d 845 (2000), the Michigan Court of Appeals found the protection of workers discriminated against on the basis of their youth was consistent with the purposes of the ELCRA—the elimination of the effects of offensive or demeaning stereotypes. “Just as an older worker may be inaccurately perceived as less energetic and resistant to new ideas, a younger worker may be unfairly viewed as immature and unreliable, without regard for individual merits.” Id. at 477. The ELCRA, therefore, protects younger employees from discrimination in favor of older workers.

A prima facie case of intentional age discrimination may be established by evidence that the plaintiff was qualified for the position and that the defendant had a pattern of discharging older employees and filling their positions with younger employees. However, replacement by a younger employee, without more, does not support a claim of age discrimination. Barnell v Taubman, 203 Mich App 110, 512 NW2d 13 (1993).

ADEA plaintiffs may rely on direct or circumstantial evidence to persuade the jury that they were discriminated against because of age.

What is But For Cause?

In Lewis v Humboldt Acquisition Corp, 681 F3d 312 (6th Cir 2012), an en banc decision, the Sixth Circuit held that an ADA plaintiff need not prove that he or she was discharged “solely” because of disability. Instead, the ADA, like the ADEA, prohibits “discrimination that is a ‘but-for’ cause of the employer’s adverse decision.” 681 F3d at 321 (quoting Gross, 557 US at 167).

In Burrage v United States, 134 S Ct 881 (2014), a criminal case, the Supreme Court construed the meaning of “but-for” causation across the entire body of federal law, including employment discrimination law. The Supreme Court clarified its own precedents to hold that there can be more than one “but-for” cause.

In De Brow v Century 21 Great Lakes, Inc(After Remand), 463 Mich 534, 620 NW2d 836 (2001), the supreme court held that summary disposition was improper because plaintiff presented direct evidence of unlawful age discrimination. Plaintiff testified that during the conversation in which he was fired, his supervisor told him that he was “getting too old for this [s---].” Considered in the light most favorable to plaintiff, this remark could be taken as a literal statement that plaintiff was “getting too old” for his job and that this was a factor in the decision to terminate him.

The discriminatory reason “does not have to be the only reason, or even the main reason, but it does have to be one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Id. (quoting M Civ JI 105.02).

Sexual Harassment

The sex discrimination provisions of the ELCRA are similar to those under Title VII. 42 USC 2000e et seq. Therefore, federal cases interpreting sex discrimination claims under Title VII are persuasive authority in cases brought under the ELCRA.

The gravamen of a sex discrimination case is that similarly situated people have been treated differently because of their sex. However, ELCRA and Title VII protections do not extend to characteristics that are not inherently immutable such as different grooming standards for the sexes.

The U.S. Supreme Court has held that sex stereotyping based on a person’s gender nonconforming behavior is unlawful discrimination. Price Waterhouse v Hopkins, 490 US 228 (1989). In Smith v City of Salem, 378 F3d 566, 574 (6th Cir 2004), plaintiff alleged that he was a victim of discrimination because of his identification as a transsexual and because of his gender nonconforming conduct. The Sixth Circuit found both bases of discrimination actionable pursuant to Title VII. The court reasoned:

After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.

Sexual Orientation and Protections for Lesbian, Gay, Bisexual, and Transgender People

In Obergefell v Hodges, ___ US ___, 135 S Ct 2584 (2015), the Supreme Court held that the right to marry is a fundamental aspect of the personal liberty promised by the Fourteenth Amendment and thus that the due process and equal protection clauses of the Fourteenth Amendment prohibit states from denying same-sex couples the right to marry or to have their marriages, lawfully performed in another state, given full recognition.

Federal and state courts have not yet taken a uniform position regarding the scope of protection for lesbian, gay, bisexual, and transgender people under existing sex discrimination law. The Seventh Circuit has held that Title VII prohibits discrimination on the basis of sexual orientation, creating a circuit split on the issue. Hively v Ivy Tech Cmty Coll of Indiana, No 15-1720, 2017 US App LEXIS 5839 (7th Cir Apr 4, 2017).

Is There Pregnancy Discrimination Under Michigan Law?

The ELCRA’s prohibition of discrimination based on sex includes pregnancy and childbirth. MCL 37.2201(d). “[B]ecause pregnancy is a condition unique to women, any distinction drawn on the basis of pregnancy denies women valuable rights solely on account of their sex.” Department of Civil Rights ex rel Peterson v Brighton Area Sch, 171 Mich App 428, 437, 431 NW2d 65 (1988).

Federal law also prohibits pregnancy discrimination. In Kocak v Community Health Partners of Ohio, Inc, 400 F3d 466 (6th Cir Ohio 2005), a case decided under the federal Pregnancy Discrimination Act (PDA), the Sixth Circuit held that whether one is or is not pregnant at the time does not control whether one can allege pregnancy discrimination. The PDA’s protection extends to the whole range of matters concerning the childbearing process and prohibits an employer from discriminating against a woman “because of her capacity to become pregnant.” 400 F3d at 469 (citation omitted).

A school district’s policy of prohibiting teachers from taking consecutive pregnancy disability and infant care leaves of absence violated the ELCRA. Although teachers could use sick days with pay to recover from disabilities caused by pregnancy, they could not do so and then take an unpaid infant care leave of absence. Because this policy only affected women, a plaintiff could recover under a disparate impact theory.

In a federal PDA case, Young v UPS, ___ US ___, 135 S Ct 1338 (2015), the Supreme Court held that an employee can establish a prima facie case of pregnancy discrimination by showing that others similarly situated “in their ability or inability to work” were accommodated. An employee can establish pretext by showing the employer accommodated a large percentage of nonpregnant workers (for example, by offering light-duty work) while not accommodating pregnant workers. Thus, an employer who accommodates employees with disabilities or work-related injuries must also provide comparable accommodations to pregnant employees.

Sexual Harassment

Title VII does not identify sexual harassment as an actionable employment practice. However, the EEOC’s 1980 guidelines on sex discrimination, 29 CFR 1604.11, and decades of federal appellate caselaw, recognize sexual harassment as a form of sex discrimination. The ELCRA expressly prohibits sexual harassment in employment, which is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:

  1. Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment… .
  2. Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment… .
  3. The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment … or creating an intimidating, hostile, or offensive employment … environment.

MCL 37.2103(i).

The ELCRA does not proscribe harassment or discrimination based on a person’s sexual orientation. However, an allegation of specific sexual advances directed at an employee by a supervisor of the same sex can form the basis of a claim under the ELCRA. Barbour v Department of Soc Servs, 198 Mich App 183, 497 NW2d 216 (1993).

In Robinson v Ford Motor Co, 277 Mich App 146, 744 NW2d 363 (2007), the court of appeals held that the ELCRA prohibits same-gender sexual harassment. Id. at 152. The court held that the male plaintiff established a triable question of fact on his hostile environment claim where a male coworker subjected him to “conduct and communication [that] inherently pertained to sex” in violation of the Michigan Civil Rights Act. Id. at 155.

What Does Quid Pro Quo Mean?

Under the quid pro quo theory of sexual harassment, unlawful sexual harassment is established where

  • “the employer or employee in a supervisory position encourages or demands sexual favors in return for some employment benefit.”

That an employee “voluntarily” engaged in sexual relations with a supervisor is no defense to a sexual harassment claim if the sexual advances were unwelcome.

To establish a prima facie case of quid pro quo sexual harassment under Title VII or the ELCRA, the plaintiff must prove:

  1. That the employee was a member of a protected class;
  2. That the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
  3. That the harassment complained of was based on sex;
  4. That the employee’s submission to the unwelcome conduct was an express or implied condition for receiving job benefits or that the employee’s refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and
  5. Respondeat superior.

Michigan courts impose strict liability on employers for quid pro quo harassment by a supervisor “even absent proof that higher management knew or should have known of the sexual harassment.”

What is a Hostile Work Environment?

In a hostile work environment case, the test is whether the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment. Harris v Forklift Sys, 510 US 17 (1993) (applying Title VII).

In hostile environment cases, unlike quid pro quo cases, the employer is not automatically liable, even if the harassers are supervisors. A plaintiff must prove:

  1. That the employee belonged to a protected group;
  2. That the employee was subjected to communication or conduct on the basis of sex;
  3. That the employee was subjected to unwelcome sexual conduct or communication;
  4. That the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and
  5. Respondeat superior.

In Haynie v State, 468 Mich 302, 664 NW2d 129 (2003), the Michigan Supreme Court held that conduct or communication that is gender-based, but not sexual in nature, does not constitute sexual harassment under the ECLRA. The proper recourse for conduct or communication that is gender-based, but not sexual in nature, is a sex-discrimination claim, not a sexual harassment claim.

The phrase “of a sexual nature” does not necessarily mean behavior that inherently pertains to sexual relations. There can be behavior of a sexual nature between members of the same sex where the perpetrator is heterosexual and the conduct does not involve any type of sexual advances or desire. On the other hand, conduct that inherently pertains to sex is not necessarily “because of sex.”

A hostile environment claim must be gender-based. For example, a plaintiff might establish a hostile environment claim based on same-gender harassment:

  1. Where the harasser making sexual advances is acting out of sexual desire; or
  2. Where the harasser is motivated by general hostility to the presence of men in the workplace; or
  3. Where the plaintiff offers “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”

Although it is rare, a single incident of sexual harassment may constitute a hostile work environment. Radtke, 442 Mich 368. In most cases, a plaintiff must prove that the employer failed to rectify a problem after adequate notice and that either a continuous problem existed or a repetition was likely. In Radtke, however, recourse to the employer was fruitless because the harasser was the employer. This fact, combined with the nature of the incident (attempts to caress and kiss plaintiff), created a question of fact for the jury.

When submission to or rejection of unwelcome sexual conduct or communication was not factored into an employment decision, but a hostile work environment was created because unwelcome sexual conduct or communication substantially interfered with the plaintiff’s employment, the violation is attributable to the employer only if the employer failed to take prompt and adequate remedial action after having received reasonable notice of the harassment.

In Sheridan v Forest Hills Pub Sch, 247 Mich App 611, 637 NW2d 536 (2001), the court of appeals found that plaintiff had failed to present evidence that defendant employer knew or should have known that another employee had sexually assaulted plaintiff. Although the assaults occurred over a two- to three-year period, plaintiff failed to notify anyone with hiring and firing authority about the incidents or to complain when specifically questioned about “problems” with the harasser. Therefore, the employer did not have actual or constructive notice of sexual harassment.

The court in Sheridan concluded that a plaintiff must notify “higher management” of harassing behavior to provide the employer with actual knowledge of the harassment. It defined the term “higher management” as “someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining of the offensive employee.” Id. at 622. In other words, management employees are those “who have actual authority to effectuate change in the workplace.” Id. at 623. Plaintiff’s statement to the head custodian that the coemployee “bothered” her was insufficient to impute knowledge to defendant because the head custodian was neither a manager nor plaintiff’s recognized supervisor.

Employer Defenses to Harassment Claims in Michigan

The U.S. Supreme Court has enunciated an affirmative defense for employers to avoid Title VII liability for harassment by supervisors, where the harassment has not culminated in a tangible adverse employment action such as discharge, demotion, or undesirable reassignment. Where there has been a tangible job detriment, an employer will be held strictly liable for a supervisor’s harassment. Burlington Indus v Ellerth, 524 US 742, 759 (1998). However, in cases where the employee has not suffered a tangible job detriment, an employer may avoid liability upon proving a two-pronged defense:

  1. That it acted reasonably to prevent and correct the harassment and
  2. That the employee unreasonably failed to complain.

Faragher v City of Boca Raton, 524 US 775, 806–809 (1998).

In Pennsylvania State Police v Suders, 542 US 129 (2004), the U.S. Supreme Court resolved the disagreement among the circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher. The high court held that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the constructive discharge; absent such a “tangible employment action,” however, the defense is available to the employer whose supervisors are charged with harassment, even if the employee claims constructive discharge.

In Chambers v Trettco, Inc, 463 Mich 297, 614 NW2d 910 (2000), the Michigan Supreme Court held that the principles announced by the U.S. Supreme Court in Ellerth and Faragher do not apply to actions for sexual harassment brought under Michigan’s ELCRA.

Marital Status

Under the ELCRA, an employer may not discriminate against an employee based on whether or not the employee is married. However, there is no claim for marital status discrimination when differential treatment is based merely on the identity of the spouse. Thus, courts have held that antinepotism policies, like those prohibiting spouses from working together, do not violate the ELCRA.

In Veenstra v Washtenaw Country Club, 466 Mich 155, 645 NW2d 643 (2002), the supreme court found that while the ELCRA prohibits adverse employment action on the basis of the protected statuses enumerated in the act, such as marital status, the act does not protect an employee from discharge for conduct such as adultery.

What is Religious Discrimination?

The elements of a prima facie case in an age, race, or gender discrimination case have been extended to a claim of religious discrimination.

Religious discrimination cases usually involve either disparate treatment or an employer’s failure to reasonably accommodate the employee’s religious beliefs.

As in other forms of discrimination under the ELCRA, an employee may rebut an employer’s articulated business reason for its action by establishing pretext. For example, a Michigan court held that a Muslim employee who had been discharged for alleged destruction of company property had established a jury question with respect to pretext by presenting testimony that he had been discharged for throwing a scrap automobile cylinder head into a divider and that others engaging in similar conduct were not discharged. Plaintiff also established that he was a productive and capable worker, the head was not destroyed, the plant floor was not damaged, and the supervisor had harassed him in the past concerning his religion.

By contrast, in Lawrence v Syms Corp, 969 F Supp 1014 (ED Mich 1997), a non-Jewish employee failed to establish pretext where the employer established that his performance was substandard and there were no open positions in his market area. The employer was therefore not liable for religious discrimination despite the employee’s allegation that Jewish employees whose performances were substandard were transferred instead of terminated. Id.

Employers may avoid liability for religious discrimination where the requested accommodation of the plaintiff’s religion would impose an “undue hardship” on the operation of the employer’s business. Undue hardship can be established where the proposed accommodation, in the form of a scheduling preference or change, would violate a bona fide seniority system or otherwise conflict with the contractual rights of the plaintiff’s coworkers.

In Virts v Consolidated Freightways Corp, 285 F3d 508 (6th Cir 2002), plaintiff truck driver was terminated after he refused an overnight “sleeper” run with a female driver because of his religious convictions. Plaintiff argued that excusing him from such runs was a reasonable accommodation of his religious beliefs, but the court held that excusing plaintiff constituted an undue hardship on the employer because it violated the seniority provisions of the parties’ collective bargaining agreement and affected the shift and job preferences and contractual rights of other employees. EEOC v Geo Group, Inc, 616 F3d 265 (3rd Cir 2010), held that permitting female Muslim employees of a prison to wear khimar head covering as an exception to the dress policy would cause undue hardship by compromising safety.

In EEOC v Abercrombie & Fitch Stores, Inc, ___ US ___, 135 S Ct 2028, 2034 (2015), the Supreme Court clarified that Title VII goes beyond demanding “mere neutrality with regard to religious practices.” Instead, the law gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of such individual’s’ ‘religious observance and practice.’” Id.

What is Reverse Discrimination?

The Michigan Supreme Court has rejected the notion that a higher burden of proof applies in reverse discrimination cases.

In Yeager v GMC, 265 F3d 389 (6th Cir 2001), cert denied, 535 US 928 (2002), plaintiff, a white male, sued defendant for race and sex discrimination after he was passed over for placement in an apprentice program. The court held that plaintiff failed to establish a prima facie case of reverse discrimination because 80 percent of the apprenticeships in plaintiff’s selected trades were awarded to white men and there was no evidence that defendant was the unusual employer that discriminates against the majority.

What is Affirmative Action?

As a general rule, it is unlawful to consider race or gender for purposes of hiring or recruiting. However, under both the ELCRA and Title VII, an employer may implement an affirmative action plan (AAP) to ensure equal opportunity and to eliminate the present effects of past discrimination.

Under the ELCRA, AAPs must be filed with and approved by the MCRC. MCL 37.2210. However, employment decisions made pursuant to an unapproved plan are not unlawful if:

  1. The plan’s purposes are “similar to the purposes of Title VII”;
  2. The plan does not unnecessarily trammel the rights of nonminorities; and
  3. The plan is temporary in nature.