What is Retaliation Under Michigan's Civil Rights Act?

The ELCRA prohibits retaliation or discrimination

“against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.” MCL 37.2701(a).

Thus, two activities are protected under the ELCRA:

Participation in a proceeding regarding an ELCRA violation (participation clause) and
Opposition to an ELCRA violation (opposition clause).

The retaliation provisions prohibit coercing, threatening, or otherwise interfering with any person exercising protected rights or aiding or encouraging another person in his or her exercise of protected rights. MCL 37.1602(f).

The U.S. Supreme Court clarified the federal standard for proving retaliation claims in Burlington Northern & Santa Fe Ry v White, 548 US 53 (2006). In Burlington, the Court held that to establish a retaliation claim under Title VII, a plaintiff must demonstrate:

A materially adverse retaliatory action, which is defined as an action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 77.

Because Title VII’s antiretaliation provision covers a broad range of employer conduct, an employer is subject to a retaliation claim for firing the fiancé of another employee who filed a sex discrimination claim against that employer. Thompson v North American Stainless, LP, 562 US 170 (2011). In Thompson, the Court declined to state a categorical rule concerning third-party retaliation but noted that, under Burlington, firing a plaintiff’s close family member would almost always be considered retaliation because a reasonable worker would likely be dissuaded from making or supporting a charge of discrimination if they knew that such activity would result in retaliation against the close family member. On the other hand, absent special circumstances unique to each particular case, inflicting lesser retaliation on a mere acquaintance might not satisfy the standard.

The Court reiterated that these questions will have to be resolved case by case under the unique facts and circumstances in each case.

What Does a Plaintiff Need to Prove to Establish Retaliation?

In the absence of direct evidence, the plaintiff establishes a case of retaliation by showing that:

He or she was engaged in a protected activity;
The defendant knew about it;
The defendant took an employment action adverse to the plaintiff; and
The protected activity caused the adverse employment action.

The plaintiff must show that his or her participation in a protected activity was a significant factor in the employer’s decision, and that a causal link existed between participation in the protected activity and the adverse employment treatment complained of. After the plaintiff establishes a prima facie case, courts use the shifting burden of proof analysis from McDonnell Douglas Corp v Green, 411 US 792 (1973). See above.

What is a Protected Activity in Michigan?

In McLemore v Detroit Receiving Hosp & Univ Med Ctr, 196 Mich App 391 , 493 NW2d 441 (1992), the Michigan Supreme Court specifically rejected the restrictive approach applied by the federal courts, and held that an employee who suffers adverse action as a result of “raising the spectre of a discrimination complaint” has a retaliation claim, even where no formal complaint was actually filed. Moreover, an employee need not prove that the practice being opposed was, in fact, unlawful, as long as the employee entertained a good-faith belief that the practice was illegal. See Moore v Northwest Airlines, Inc, No 89-1074, 1989 US Dist LEXIS 18008 (ED Mich Dec 4, 1989).

What is an Adverse Action?

The EEOC has interpreted “adverse employment action” in the context of a Title VII retaliation claim to mean

“any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity.” EEOC Compliance Manual §8, “Retaliation,” P 8008 (1998).

A materially adverse retaliatory action, which is defined as an action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 77.

The Court applied a substantive discrimination offense, i.e., that the challenged action must “[result] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” 548 US at 60 (citation omitted).

Following Burlington, the Sixth Circuit has held that a transfer to a different room that resulted in plaintiff working a more inconvenient shift in a position that was less challenging and that required fewer qualifications may constitute an adverse employment action for purposes of a retaliation claim. Spees v James Marine, Inc, 617 F3d 380 (6th Cir 2010).

Causal Connection Requirement

Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection.

But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causation.

Retaliatory Harassment

The Sixth Circuit enunciated a new standard for proving Title VII retaliation in Morris v Oldham County Fiscal Court, 201 F3d 784 (6th Cir 2000), recognizing for the first time a cause of action for “retaliatory harassment.”

In Morris, plaintiff lodged an internal complaint regarding offensive conduct by her immediate supervisor. Subsequently, the supervisor was transferred out of plaintiff’s work area but continued to harass her by making frequent telephone calls and personal visits, following her home from work, throwing roofing nails onto her home driveway, and other acts.

The court found that the supervisor’s posttransfer conduct did not constitute sexual harassment because it was not based on sex. However, the court held that the conduct could be actionable as retaliatory harassment, subject to the proof requirements and affirmative defense set forth by the U.S. Supreme Court in Burlington Indus v Ellerth, 524 US 742 (1998), and Faragher v City of Boca Raton, 524 US 775 (1998).

Thus, a plaintiff may establish retaliatory harassment by proving that

He or she engaged in activity protected by Title VII;
This exercise of protected rights was known to the defendant;
The defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and
There was a causal connection between the protected activity and the adverse employment action or harassment.

Retaliation