Michigan Employment Disability Discrimination

The Persons With Disabilities Civil Rights Act (PWDCRA) is the Michigan law that prohibits discrimination against an individual based on disability.

In the employment context, the legal definition of disability is:

• A determined physical or mental characteristic that may result from disease, injury, congenital condition of birth, or functional disorder
• If the characteristic:
  
  • Substantially limits one or more major life activities, and
  • Is unrelated to the individual’s ability to perform the essential functions of the job.
    

However, the PWDCRA does not protect a person whose only disability is lack of the skill or knowledge to perform a particular job. Instead, the law covers an individual with a substantial impairment in handling activities that have central importance to daily life. In other words, the person must have a disability in daily life, as well as in the workplace.

Under state law, an employer must accommodate a worker with a disability, unless doing so would impose an undue hardship. Determining whether a requested accommodation would be an undue hardship, is based on a formula, which factors in that employer’s total number of employees and the state average weekly wage.

A worker must give his or her employer a written request for an accommodation within 182 days of time that the worker knows of the need for the accommodation.

Applying these legal protections to the unique situation of a individual with a specific disability can be complicated. If you or a loved one has experienced disability discrimination, it is important to talk with a Michigan employment discrimination lawyer with experience in Michigan and federal employment law.

Federal Disability Discrimination Law
Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, or other terms, conditions, and privileges of employment.

The ADA covers private employers with 15 or more employees, state and local governments, employment agencies, and labor organizations. The federal Rehabilitation Act provides that ADA non-discrimination standards also apply to federal government agencies.

Under the ADA, an individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities,
• Has a record of such an impairment, or
• Is regarded as having such an impairment.
  

An employee or applicant with a disability is considered qualified for a job, if he or she can perform the essential functions of that job, with or without reasonable accommodation.

A reasonable accommodation includes:

• Making existing workplace facilities readily accessible to and usable by a persons with a disability.
• Restructuring of a job, modifying a work schedule, or reassigning to a vacant position.
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
  

An employer is required to make a reasonable accommodation for the known disability of a qualified applicant or employee, if the change would not impose an undue hardship on the operation of the employer's business. The ADA defines undue hardship as an action requiring significant difficulty or expense, when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to accommodate a worker with a disability by lowering quality or production standards, or by providing personal use items, such as eyeglasses or hearing aids.

Medical Examinations and Inquiries
An employer may not ask a job applicant for information about the existence, nature, or severity of a disability. However, it may ask about the applicant’s ability to perform specific job functions. In addition, an employer may make a job offer, conditioned on the results of a medical examination, if it requires all prospective employees in similar jobs to have examinations. The scope of any medical examination must be job-related and consistent with the employer's business needs.

Drug and Alcohol Abuse
The ADA does not cover employees or job applicants who currently use illegal drugs, and it does not prohibit drug tests. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

Retaliation
It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability, for filing a discrimination charge, or for testifying, or participating in any way in an ADA investigation, proceeding, or lawsuit.

If you or a loved one has experienced disability discrimination, it is important to talk with a Michigan employment discrimination lawyer with experience in Michigan and federal employment law.

Michigan Race Discrimination Law

The Elliott-Larsen Civil Rights Act (ELCRA) is the Michigan law that prohibits discrimination based upon race, color, national origin, as well as other factors. The law, MCL 37.2202, states:

An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . race, color, [or] national origin.

Federal Racial Discrimination Law – Title VII
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination based on race or color, as well as national origin, sex, or religion. This law applies to employers with 15 or more employees, including federal, state, and local government agencies, employment agencies, and labor organizations.

An employer violates Title VII by discriminating against any employee or job applicant based on the individual’s race or color, in hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment.

No employment decision can be based on stereotypes or assumptions about the abilities, traits, or the performance of members of a particular racial group. Title VII also prohibits intentional discrimination and neutral policies unrelated to the job, which disproportionately exclude minorities.

In addition, an employer cannot deny equal employment opportunity, because of a person’s marriage to, or association with, an individual of a different race; because of membership in, or association with, ethnic based organizations or groups; or because of attendance or participation in schools or places of worship generally associated with a certain minority group.

Race-Related Characteristics and Conditions
Federal law prohibits discrimination based on a characteristic often associated with persons of a particular race, such as skin color, hair texture, or facial features, even though not all members of that race have the same characteristic.

Under most circumstances, an employer may not discriminate because of a condition that generally affects one race. Thus, most employers could not exclude all individuals with sickle cell anemia (which predominantly affects African-Americans), or prevent workers from having beards (which could be a greater hardship for African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps)). However, these types of employment rules would be lawful, if and only if, the employer can show that different treatment for persons with the condition is job-related and essential for business operations.

Harassment
Harassment based on race, color, or national origin violates Title VII. Ethnic slurs, racial "jokes," offensive or negative comments, pictures, or graffiti, or other verbal or physical workplace conduct based on race or color, constitutes unlawful harassment, if the conduct creates an intimidating, hostile, or offensive working environment or interferes with an individual's work performance.

Segregation and Classification of Employees
An employer violates Title VII by segregating or physically isolating workers of a particular race or color from other employees or customers. In addition, employers may not assign workers according to race or color. For example, Title VII prohibits assigning primarily African-Americans to predominantly African-American establishments or geographic areas.

It is also illegal to exclude members of one group from particular jobs, or to group or classify positions or employees, so that members of the protected group generally are placed in certain jobs. The practice of coding applications or resumes to designate an applicant's race or color, by either an employer or an employment agency, also is evidence of unlawful discrimination.

Pre-Employment Inquiries
Asking job applicants for information that indicates race or color strongly suggests that an employer will use it as a basis for hiring. Therefore, if members of minority groups were excluded from employment, the request for this pre-employment information could be evidence of discrimination.

It is possible that an employer legitimately wants information about the race or color of employees or job applicants, to use for affirmative action purposes. In that situation, the employer can guard against improper use of the information with "tear-off sheets" with the identification of an applicant's race. After the applicant completes the entire job application, the employer should remove the “tear-off sheet” and use the remainder of the application form in the hiring process.

Retaliation
Finally, it is unlawful for anyone to retaliate against an individual for opposing discriminatory employment practices, for filing a discrimination charge, or for testifying, or participating in any way in a Title VII investigation, proceeding, or lawsuit.

Employment Age Discrimination

Age discrimination occurs when an employer treats an individual less favorably because of their age. Unfortunately, age discrimination is an increasing problem in American workplaces.

Both Michigan and federal law prohibit age discrimination and provide damages for its victims. The application of these laws is complex and you should consult with an attorney experienced in Age Discrimination Law.

In Michigan, the Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based upon age. This law, MCL 37.2202, states:

An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age.

Federal Law
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. ADEA protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is also unlawful for an employer to retaliate against an individual for opposing employment practices that discriminate based on age, for filing an age discrimination charge, or for testifying or participating in any way in an ADEA investigation, proceeding, or litigation.

However, the law does allow an employer to force retirement based on age, in certain job categories, like law enforcement officers, firefighters, and highly paid corporate executives.

The ADEA applies to employers with 20 or more employees, including federal, state, and local governments, employment agencies, and labor organizations.

Advertisements
The ADEA prohibits job notices or advertisements, which include age preferences, limitations, or specifications, unless age clearly is a bona fide occupational qualification (BFOQ), or reasonably necessary to the essence of the business.

Pre-Employment Inquiries
Although the ADEA does not specifically prohibit an employer from asking a job applicant's age or date of birth, these questions are subject to close legal scrutiny because they may discourage older workers from applying for work. Thus, an employer must be able to show that it has a legitimate reason for knowing the age of a job applicant.

Benefits
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA, to specifically prohibit employers from denying benefits to older workers. An employer may reduce benefits based on age, only if its cost of reduced benefits for older workers is the same as the cost of regular benefits for younger workers.

Waivers of ADEA Rights
At an employer's request, an individual may agree to give up, or waive, rights or claims under the ADEA. To be valid and legally enforceable, a waiver agreement must meet specific standards, including:

• Be in writing and be understandable
• Specifically refer to ADEA rights or claims
• Not waive rights or claims that may arise in the future
• Be in exchange for valuable consideration
• Advise the individual in writing to consult an attorney before signing the waiver; and
• Provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.

The requirements for an ADEA waiver are stricter, if an employer requests it in connection with an exit incentive or early retirement program.

Age Discrimination and Replacement of Higher-Wage Earners
The law does not prohibit an employer from ever replacing workers making higher wages with workers who will make less, based on lower seniority. At the same time, this often involves replacement of older workers with younger ones. An employer who uses wage rates as an excuse, but just wants to get rid of older workers, is violating the law. In an ADEA legal action, the worker must show that it really was age, rather than wages, which motivated the firing of older workers.

Sexual Harassment and Sex Discrimination – Overview of Michigan Law

Under Michigan law, sexual harassment is considered a form of illegal discrimination. It usually occurs when someone - man or woman - makes an unwelcome sexual advance. This offensive and unwanted conduct creates an uncomfortable, intimidating, and "hostile" workplace environment.

Legal Definition of Sexual Harassment

Michigan’s Elliot-Larsen Civil Rights Act identifies two broad categories of sexual harassment – quid pro quo and hostile work environment.

According to Section 103 (h) of this Michigan law, sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

1. Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
2. Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing.
3. Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public service, education, or housing environment.

Applying these employment discrimination laws to real-life situations is complicated. If you or a loved one has experienced employment discrimination, it is important to talk with a Michigan employment discrimination lawyer with experience in Michigan and federal employment law.

Sexual Harassment - Quid Pro Quo Harassment

Quid Pro Quo is a Latin phrase meaning “this for that.” In other words, it involves an exchange or bargain between two parties. Under Michigan law, any exchange that involves sex in the employment setting is illegal.

Quid Pro Quo sexual harassment may be the most explicit form of harassment. Frequently, an employer or supervisor with authority over a worker demands that she or he provide sexual favors in exchange for continued employment and/or promotion.

Obviously, this creates a terrible situation for the worker. No one should be treated in this way. You need an attorney who will fight to protect your rights.

Sexual Harassment - Hostile Work Environment

Hostile environment sexual harassment happens in a workplace, when an employer, supervisor, or co-worker does or says things that make the victim feel very uncomfortable because of his or her sex. The harassment occurs, even if no one makes a specific demand for sexual favors. Instead, the victim suffers harassment because she or he has to try to work in an intimidating, hostile, or offensive environment.

To prove a claim for hostile work environment, the harassment must be severe and persistent. Evidence of an occasional offensive remark or sexual joke is not enough. Courts often treat these infrequent comments as just “stray remarks.”

An employer is legally responsible for the harm caused by a hostile work environment, if the employer failed to take prompt and adequate remedial action, after it had reasonable notice of the harassment. Generally, the victim of harassment should report it to management promptly, to give the employer notice and an opportunity to investigate the problem.

Complex legal issues arise in claims for hostile environment caused by sexual harassment. However, you do not have to put up with this form of workplace discrimination.

Sexual Harassment – The Victims

Although the majority of victims are women harassed by men, other types of unlawful sexual harassment include:

• Men sexually harassed by women
• Women sexually harassed by women
• Men sexually harassed by men

Sexual harassment victims range from young to old, from executives to unskilled workers, from married to single, and from attractive to unattractive. Often, it is unclear why a certain person is singled out. From a legal standpoint, the aggressor’s reason for targeting a victim is not relevant. The harassment is unacceptable -- and illegal.

Sexual harassment victims subjected to any type of unlawful workplace harassment should talk with a Michigan employment discrimination lawyer with experience in Michigan and federal employment law.

Federal Job Discrimination Laws and Employment Discrimination Protections

Employment Discrimination Protections in the United States Constitution The U.S. Constitution prohibits job discrimination by federal, state, or local government. Federal employment discrimination laws prohibit employers from discriminating based on race, sex, religion, national origin, physical disability, or age. The laws protect workers from unlawful discrimination, bias, or prejudice, in the following areas of employment:

• Hiring
• Harassment
• Promotion
• Job assignment
• Termination
• Compensation

The Fifth Amendment to the Constitution states that the federal government may not deprive an individual of life, liberty, or property, without due process of law. It also assures each person of the right to equal protection under the law.

The Fourteenth Amendment to the Constitution explicitly prohibits states from violating an individual's right to due process and equal protection. In employment, the right to due process requires a government employer to provide a fair procedural process, before deciding to fire a worker, if the termination relates to a "liberty interest" (like the right to free speech) or a "property interest" (like the right to retain a position, if dismissal or demotion is only allowed for "just cause".)

The right to equal protection prevents state and local governments from discriminating, by treating employees, former employees, or job applicants unequally, because of membership in a protected group (such as race or sex).

Federal Statutes Federal laws prohibit various types of discrimination in private sector employment.

The Equal Pay Act prohibits the establishment of different wage rates for the same tasks, based on the gender of the employees. This law requires that workers doing jobs involving "equal skill, effort, and responsibility and performed under similar working conditions," must be provided equal pay.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination in many more aspects of the employment relationship. An employer may not treat workers differently, based on race, color, religion, national origin, or sex (including pregnancy, childbirth, or related medical conditions). Title VII prohibits discrimination in hiring, termination, discipline, compensation, or terms, conditions, and privileges of employment. Employment agencies cannot discriminate in hiring or referring job applicants. Labor organizations may not base membership, classification, or other union privileges, on race, color, religion, sex, or national origin.

The Federal Civil Rights Act of 1991 provides a worker with the right to file a lawsuit against his or her employer, and seek financial compensation for having suffered job discrimination.

The Age Discrimination in Employment Act (ADEA) prevents an employer from discriminating, based on the age of a worker who is 40 years or older. The prohibited practices are nearly the same as those outlawed in Title VII. The ADEA explicitly applies to pension, retirement, and benefit plans.

The Americans with Disabilities Act (ADA) prevents an employer from discriminating against an individual, because of his or her disability. In addition, the law requires that an employer make certain accommodations in the workplace for a person with a disability, who is otherwise qualified and eligible to do the job.

The Purpose of the Rehabilitation Act is to "promote and expand employment opportunities in the public and private sectors for handicapped individuals," through elimination of discrimination and through affirmative action. This law applies to federal government agencies, contractors, and other programs receiving federal financial assistance.

The Federal Equal Opportunity Employment Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The agency's enforcement powers are in section 2000e-5 of Title 42 of the United States Code, and its regulations and guidelines are in Title 29 of the Code of Federal Regulations, part 1614.

For victims of job discrimination, both federal and state laws provide protections, rights, and remedies. If the employer is a government agency or the government took significant steps to foster the discriminatory practice of a private employer, the U.S. Constitution, may protect the worker.

Unfortunately, an act of unlawful discrimination may be only the beginning of the emotional and financial hardships for the employment discrimination victim and his or her family. While struggling to cope with job discrimination, a victim may not realize that time is running out to protect his or her rights. Do not make this mistake. Employment discrimination laws are complex. If you or a loved one has experienced employment discrimination, it is important to talk with an employment discrimination lawyer with federal employment law experience.