WORK DISCRIMINATION LAWYERS

SEXUAL HARASSMENT AND SEX DISCRIMINATION

Under Michigan law, sexual harassment is 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 IN MICHIGAN

Michigan’s Elliot-Larsen Civil Rights Act identifies two broad categories of sexual harassment:

• "Quid pro quo" harassment
• Hostile work environment harassment

 

According to Section 103 (h) of this law, sexual harassment means unwelcome sexual advances, requests for sexual favors, and/or 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 laws to real-life situations is complicated. If you or a loved one has experienced employment discrimination, contact us to decide the best course of action.

"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 sexual activity in an employment setting is illegal.

Quid Pro Quo sexual harassment may be the most explicit form of harassment. An example of this would be when, 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.

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 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 promptly report it to management to give the employer notice and an opportunity to investigate the problem.

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

THE VICTIMS

Types of sexual harassment include:

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

 

Sexual harassment victims range from young to old, from executives to unskilled workers, and from married to single. Often, it is unclear why a certain person is singled out. From a legal standpoint, the aggressor’s reason for targeting a victim is irrelevant. The harassment is unacceptable — and illegal.

PREGNANCY DISCRIMINATION

Both State and federal laws protect the rights of the pregnant woman in the workplace. Because pregnancy is a condition unique to women, disparate treatment because of pregnancy denies women’s rights solely because of their sex.

MICHIGAN LAW

The Elliott-Larsen Civil Rights Act prohibits discrimination based on sex, including pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. An employer may not terminate a woman’s employment because of her pregnancy.

FEDERAL LAW

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. This law requires an employer to treat workers temporarily disabled by pregnancy, childbirth, or related medical conditions, in the same manner as workers temporarily disabled by other non-work-related medical conditions or injuries.

An employer cannot force a worker to begin or end maternity leave at a predetermined time. Instead, the woman may follow the advice of her doctor on these issues.

If you or a loved one has experienced pregnancy discrimination, contact us as soon as possible.

FAMILY AND MEDICAL LEAVE ACT (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law that enables workers to take unpaid leave to meet certain family and medical needs, without losing their job. The law also requires continuation of some benefits and provides mechanisms to enforce compliance.

PROTECTIONS AND RIGHTS

According to the FMLA an employer must allow eligible employees up to 12 work-weeks of unpaid leave in a 12-month period to care for:

• A newborn child
• A newly-placed adopted or foster child
• A seriously ill child, spouse or parent, or
• An employee’s own serious health condition that prevents the individual from performing the functions of his or her job

 

The employer also must:

• Continue the employee’s health coverage under any group health insurance plan, and
• Restore the employee to his or her original job, or an equivalent position, upon return to work

 

The FMLA prevents an employer from:

• Interfering with, restraining, or denying the exercise of any FMLA rights
• Discharging, or discriminating against, any person for opposition to a practice prohibited by FMLA or for involvement in any proceeding related to FMLA

 

WHO IS COVERED UNDER FMLA?

FMLA protects approximately 60% of all Michigan workers. Employees are eligible if they meet the following criteria:

• The employee has worked for that employer for at least 52 weeks and at least 1,250 hours over the previous 12 months
• The employer has 50 or more employees who work within 75 miles of the work site

 

FMLA applies to both private and public employers, including state, local, and federal agencies, as well as local education systems.

If you believe that your employer violated your FMLA rights, contact us as soon as possible.

RACE DISCRIMINATION

MICHIGAN RACE DISCRIMINATION LAW

The Elliott-Larsen Civil Rights Act (ELCRA) 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 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.

If you or a loved one has experienced workplace racial discrimination, contact us as soon as possible.

AGE DISCRIMINATION

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

MICHIGAN LAW

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. If the employer used wage rates as an excuse, but just wanted to get rid of older workers, it violated 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.

If you or a loved one has experienced workplace age discrimination, contact us as soon as possible.

DISABILITY DISCRIMINATION

MICHIGAN LAW

The Persons With Disabilities Civil Rights Act (PWDCRA) 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 learns of the need for the accommodation.

FEDERAL 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 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, like 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 workplace disability discrimination, contact us as soon as possible.

RELIGIOUS DISCRIMINATION

MICHIGAN LAW

The Elliott-Larsen Civil Rights Act (ELCRA) is the Michigan law that prohibits discrimination based upon religion. 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 religion."

FEDERAL LAW

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The law applies to employers with 15 or more employees, including federal, state, and local government agencies, employment agencies, and labor organizations.

BIASED TREATMENT

Employers may not treat employees or job applicants less favorably — or more favorably — because of their religious beliefs or practices. For example, an employer may not refuse to hire individuals of a certain religion, may not set stricter promotion requirements for persons of a certain religion, and may not impose different or higher job performance standards, based on an employee’s religious beliefs or practices.

Moreover, an employer may not force a worker to participate — or not to participate — in religious activity.

REASONABLE ACCOMMODATIONS

An employer must reasonably accommodate a worker’s sincerely held religious beliefs or practices, unless doing so would impose an undue hardship on the employer.

A reasonable religious accommodation is any adjustment in the work environment, which allows a worker to practice his or her religion.

Some ways an employer might avoid interference with a worker’s beliefs or practices:

• Flexible scheduling,
• Voluntary job substitutions or swaps,
• Job reassignments, lateral transfers, and
• Changes in workplace practices, policies, or procedures

 

On the other hand, an employer is not required to make an accommodation that imposes an undue hardship on its legitimate business interests. To show undue hardship, the employer must have evidence that the requested accommodation of an employee’s religious practices would require extraordinary administrative costs, diminish efficiency in other jobs, infringe on other employees’ job rights or benefits, impair workplace safety, cause co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or conflict with another law or regulation.

RELIGIOUS EXPRESSION IN THE WORKPLACE

An employer must permit a worker to engage in religious expression if employees are permitted to engage in other forms of personal expression at work, unless the religious expression would impose an undue hardship on the employer. Thus, an employer may not place more restrictions on religious expression than on other expression with a similar effect on workplace efficiency.

HARASSMENT

Employers must take steps to prevent religious harassment of their employees. This may be accomplished by implementing an anti-harassment policy and having an effective procedure for reporting, investigating, and eliminating harassing conduct.

RETALIATION

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

If you or a loved one has experienced workplace religious discrimination, contact us as soon as possible.