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Know Your Rights

employment discrimination

This page is for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation. 

Below we have included everything you need to know to protect yourself against discrimination. The Your Discrimination Rights section describes what your right to a workplace free of discrimination entails. Below this, we have summarized the legal framework for discrimination claims so that you can know whether you may a viable discrimination claim.  

your discrimination rights

What laws govern employment discrimination?

Discrimination based on race, color, religion, sex and national origin is prohibited by federal law under Title VII of the Civil Rights Act. Courts have interpreted the prohibition on sex discrimination under Title VII to include pregnancy discrimination, sexual orientation discrimination, and gender identity discrimination.

Discrimination based on race, color, religion, sex, and national origin is also prohibited by Michigan law under the Elliot-Larsen Civil Rights Act. In addition, the Elliot-Larsen Civil Rights Act also prohibits discrimination based on height, weight, familial status, marital status and age.

Age Discrimination is also prohibited by the Age Discrimination in Employment Act on the federal level.

Disability discrimination is prohibited by federal law under the Americans with Disabilities Act and by Michigan law under the Persons with Disabilities Civil Rights Act. 

FMLA Discrimination is prohibited by the Family and Medical Leave Act. 

What are MY RIGHTS under the discrimination laws?

Title VII of the Civil Rights Act, Michigan’s Elliot-Larsen Civil Rights Act, the American with Disabilities Act, its Michigan counterpart, the Persons with Disabilities Civil Rights Act, and the federal Age Discrimination in Employment Act combine to prohibit employment discrimination based on race, color, religion, sex, pregnancy, sexual orientation, gender identity, national origin, age, disability, height, weight, familial status, and marital status. A class for which discrimination is prohibited are referred to as protected classes.

These acts prohibit:

  • Discrimination in hiring
  • Discrimination in firing
  • Discrimination in promotions
  • Discrimination in compensation and benefits
  • Discrimination in other material terms or conditions of employment
  • Sexual harassment
  • Utilization of polices or practices that have a negative effect on a protected class unless the employer can demonstrate the discriminatory policies or practices are related to the job and necessary for the operation of the business
  • Failures to provide reasonable accommodations for religious beliefs or disability
  • Requesting genetic or medical information, except in limited circumstances
  • Harassment of an employee because of a protected class
  • Retaliation against an applicant, employee, or former employee for opposing or reporting discrimination, or participating in an investigation in connection with a charge of discrimination.

Is discrimination based on PERSONALITY CONFLICT prohibited?

Probably not. The civil rights statutes do not prohibit discrimination, harassment, and retaliation based on personality conflicts or class not enumerated in the statutes. Therefore, you cannot bring a discrimination claim if the employer is solely taking an adverse action against you because there is a personality conflict. 

However, if the personality conflict arises because you engaged in protected activity, you may have a workplace retaliation claim.

Examples of protected activity include:

  • Opposing or reporting discriminatory conduct, or participating in an investigation of such. 
  • Reporting a violation of the law to the government. 
  • Exercising a legal right, such as requesting FMLA. 
  • Refusing to violate the law. 

What does the prohibition on RACE/COLOR discrimination cover?

While they often overlap, color is different from race in that the prohibition against color refers to the pigmentation of skin. Race and color discrimination are both prohibited in most employment decisions. 

The prohibition against race discrimination prohibits discrimination against all races. 

The prohibition against race discrimination extends to associational discrimination, such as discrimination because a person is married to, or has adopted, a person of another race. Lastly, the prohibition on race discrimination also extends to characteristics associated with race, such as hair texture and certain facial features. 

What does the prohibition on SEX discrimination cover?

The prohibition on sex discrimination has been held to cover sex discrimination in employment decisions, sexual harassment, pregnancy discrimination, sexual orientation and gender identity discrimination.  

Is SEXUAL ORIENTATION discrimination and GENDER IDENTITY discrimination prohibited?

In case you missed it above, courts have interpreted Title VII’s prohibition on sex discrimination to include sexual orientation discrimination and gender identity discrimination. Thus, sexual orientation discrimination and gender identity discrimination are prohibited and you may be able to sue an employer who discriminates on these basis in federal court under federal law.

Moreover, a recent Michigan Supreme Court decision held that Michigan’s Elliot-Larsen Civil Rights Act prohibits sexual orientation discrimination under Michigan law. This ruling may also extend to gender identity discrimination. Thus, a victim of sexual orientation discrimination or gender identity discrimination may also bring a lawsuit under Michigan’s anti-discrimination statutes.  

What is covered by the prohibition on AGE discrimination?

Age discrimination is also prohibited by federal law under the Age Discrimination in Employment Act (ADEA). However, the ADEA only prohibits age discrimination against applicant’s or employees who are 40 years of age or older. Moreover, the ADEA does not prohibit an employer from giving preference to an older employee. 

In addition, legitimate seniority systems for determining compensation and benefits is not prohibited. 

In contrast, the Elliot-Larsen Civil Rights Act prohibits age discrimination against an individual of any age. This means that if you are the victim of age discrimination and you are under the age of 40, you may not bring a discrimination claim in federal court under the Age Discrimination Employment Act, but you can bring an age discrimination claim under the Michigan Elliot-Larsen Civil Rights Act.

What is covered by the prohibition on RELIGIOUS Discrimination?

Title VII’s prohibition indisputably prohibits religious discrimination based on traditional, organized religion such as Christianity, Judaism, Islam, and Buddhism.

However, Title VII’s prohibition against religious discrimination is broad, and also covers religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. Whether a particular non-traditional belief or set of beliefs is religious, and therefore protected, may be subject to a case-by-case analysis, and courts may look at whether those beliefs concern “ultimate ideas” about “life, purpose, and death.”

The law also prohibits discrimination against applicant who are married to someone of a particular religious, and thus, if the religious discrimination is because of this, the applicant would satisfy the protected class requirement.

What is covered by the prohibition on discrimination based on NATIONAL ORIGIN?

Title VII’s prohibition against discrimination based on national origin includes treating people unfavorably because they are from a particular part of the world, and includes prohibitions against discrimination based on ethnicity or accent, or because the person appears to be of a certain ethnic background.

National origin discrimination can also involve discriminating against a person married to a person of a different national origin if the basis for the discrimination is the association.

What is covered by the prohibition on discrimination based on MARITAL and FAMILIAL status?

The prohibition against discrimination based on marital status prohibits an employee from discriminating because the applicant or employee is married or single. This prohibition could also potentially extend to discrimination based on nontraditional marital arrangements. 

The prohibition against discrimination based on familial status primarily prohibits discrimination because the applicant or employee either has children or does not have children. 

Are policies that appear to be neutral but have a discriminatory impact illegal?

Policies that appear neutral but have a discriminatory impact may be illegal and actionable under a disparate impact discrimination theory, sometimes referred to as unintentional discrimination. (This page addresses intentional discrimination.) 

To succeed on a disparate impact theory, an employee must be able to point to a specific policy or practice that results in a significant disparity of outcomes for a protected class. However, there are many defenses to a disparate impact theory claim that make the claim difficult to succeed on. One such defense is the business necessity defense, in which the employer asserts that the policy is needed for business reasons. If the employee cannot demonstrate that the policy is not in fact needed for business reasons, the claim will be unsuccessful.  

What can I do I am being discriminated against?

Often the first step for many employees is to report the discrimination to the employer and hope they will stop it. But in situations where the employer refuses to act, or is the one perpetrating the discrimination, the victim does not have this option.

In this circumstance, the employee has two options. First, the employee can file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights. The EEOC will investigate free of charge. However, absent convincing evidence, the EEOC rarely brings a case. In fact, only about 2% of EEOC complaints result in penalties.  

IF WISH TO FILE AN EEOC DISCRIMINITION, HARASSMENT, OR RETALIATION COMPLAINT, YOU MUST FILE THE COMPLAINT WITH THE EEOC WITHIN 180 DAYS OF THE ALLEGED VIOLATION

Your second option is to contact an attorney and pursue a lawsuit. It should be noted that you may have to file an EEOC complaint and be issued a right to sue before bringing a discrimination, harassment, or retaliation claim in federal court under Title VII. This is not a prerequisite under Michigan law. At Fett Law, we will evaluate your case free of charge, and, if we agree to take your case, file the EEOC complaint for you.  

Additional Resources

do i have a discrimination claim?

Not all employment discrimination results in a viable discrimination claim. The law imposes certain requirements that the employee’s discrimination claim must satisfy in order to be successful, called elements. For instance, one discriminatory remark may or may not form the basis for a viable discrimination claim, depending on a variety of facts. 

Employment discrimination claims can be some of the more complex claims in the practice of law. The legal framework for discrimination claims varies depending on the protected class, type of adverse action (i.e. failure to hire, termination, failure to promote, etc.), and type of evidence. Therefore, it is important that you contact an experienced attorney specializing in employment law for a definitive answer.

However, in general, the employee must demonstrate: the discrimination was based on a protected class; the employer took a materially adverse action, such as failure to hire, failure to promote, or termination; and the adverse action was taken because of the employee’s protected characteristic. 

Below is a summary of the legal framework for discrimination claims to help you understand whether the violation of your anti-discrimination rights can form the basis of a viable discrimination lawsuit. 

legal framework

An intentional discrimination claim is brought as a disparate treatment claim under Title VII of the Civil Rights Act and the Michigan Elliot-Larsen Civil Rights Act. The law imposes certain requirements to be successful on a discrimination claim, referred to as elements. The applicant has the burden of proving these elements by a preponderance of evidence, that is, that it is more likely than not.

The elements generally applicable to all intentional discrimination claims are: 1.) the employee or applicant is a member of the protected class; 2.) the employee or applicant suffered an adverse action; and 3.) the adverse action was because of the employee or applicant’s protected status. 

The law may impose additional elements depending on the employee or applicant’s protected class and type of adverse action. For example, in a failure to hire discrimination claim, the applicant must also demonstrate he/she/they were qualified for the position which they were denied. 

An applicant may establish the elements of a discrimination claim under two different frameworks, a direct evidence discrimination framework and an indirect evidence discrimination framework.

direct evidence discrimination framework

Direct Evidence demonstrating discrimination is evidence that does not require the fact-finder to draw any inferences. It is evidence that, if believed, demonstrates that unlawful discrimination was a motivating factor in the decision to take the adverse action. Direct evidence must establish both that the decisionmaker was predisposed to discriminate, and that the decisionmaker did in fact discriminate against the employee or applicant in the challenged employment decision. 

Direct evidence is rarely established in discrimination cases, and courts are not likely to hold that stray, isolated, or vague discriminatory comments suffice.

An example of direct evidence of racial discrimination is when the decisionmaker tells the applicant or another that the applicant was not hired because of applicant’s race.

If there is direct evidence of discrimination, the employee or applicant simply needs to prove the elements of the discrimination claim, which again vary depending on protected class and adverse action, but generally are: 1.) the applicant is a member of the protected class; 2.) the employer took an adverse action; and 3.) adverse action was because of illegal discrimination. Explanations of these elements can be found below. 

If the court makes a preliminary determination that a jury could find that the employee or applicant has satisfied these elements by a preponderance of evidence, the case will proceed to trial, where the trier of fact will decide whether the applicant has met its burden of proving race discrimination was the reason for the adverse action.

indirect evidence discrimination framework

Recognizing that employers rarely overtly state they engaged in discrimination, courts have developed a burden-shifting framework to allow discrimination victims to prove their discrimination claim by other means. This framework allows an applicant to present circumstances that give rise to the inference of discrimination. The employer is then afforded the opportunity to provide a nondiscriminatory explanation for its actions. If the applicant can raise questions as to the validity of the explanation, the court will permit the applicant to present its evidence to the trier of fact and let a jury decide whether the explanation given by the employer was a pretext for discrimination, i.e., it is a lie to cover up the discrimination.

The legal framework for indirect discrimination claims varies depending on protected class and adverse action, but the common elements in each framework are as follows:

  1. The employee or applicant has the burden of establishing a prima facie case of intentional discrimination by demonstrating:
    • The employee or applicant is a member of a protected class
    • The employee or applicant suffered an adverse employment action
    • The adverse action was taken under circumstances giving rise to an inference of discrimination.
  2. The burden then shifts to the employer to produce a nondiscriminatory explanation for the alleged discrimination.
  3. The burden then shifts back to the applicant to show the proffered nondiscriminatory explanation is merely a pretext for discrimination.   

If the employee establishes a prima facie case of discrimination and is able to raise a question of fact as to whether the employer’s nondiscriminatory explanation is really a pretext for discrimination, the court will permit the case to go to trial, where the finder of fact will determine whether the employer took the adverse action for discriminatory reasons. If the employee or applicant is unable to establish a prima facie case or rebut the employer’s explanation, the case will be dismissed.  

Establishing Prima facie case of discrimination

Protected Class: In an intentional discrimination claim, the first element of the employee or applicant’s prima facie case, that he/she/they are a member of a protected class, is always met. Everyone is a of a sex, gender, race, religion, etc.. 

Adverse Action: In addition, for an intentional discrimination claim to be viable, the action the employer took must be what the law refers to as a “materially adverse action.” For discrimination claims, this includes denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, and a few other actions. If the adverse action is not considered materially adverse by the court, the case will be dismissed, regardless of whether there was a discriminatory motive. An example of an action taken by an employer which does not meet the standard for a viable discrimination claim is if an employer moved the employee’s office down the hall.   

Causation: Lastly, the employee or applicant must establish circumstances giving rise to an inference of discrimination. The methods to proving this element will vary depending on the type of adverse action. One example, however, in a racial discrimination failure to hire claim, is to show that the position was awarded to an applicant of a different race. In many types of claims, the court may also require you to establish that you were treated differently than another outside your protected class who was similarly situated to you. 

The Employer’s Burden of Producing a Nondiscriminatory Explanation

If the employee or applicant establishes a prima facie case demonstrating circumstances that give rise to an inference of discrimination, the employer may come forward with a nondiscriminatory explanation for the adverse action. For example, in a racial discrimination in hiring claim, the employer may state the successful candidate was more qualified. Thus, while there are circumstances that give rise to an inference of race discrimination, the employer’s decision, if believed, was nondiscriminatory in that it was based on qualifications.

Burden of Demonstrating Pretext of Nondiscriminatory Explanation

If the employer is able to come forward with a nondiscriminatory explanation for the adverse action, the employee or applicant then has the burden of demonstrating that the employer’s explanation is merely a pretext for discrimination.

An employee or applicant can establish pretext in three general ways: 1.) demonstrate that the explanation had no basis in fact; 2.) if they have a basis in fact, they were not the actual factors motivating the decision; or 3.) if they were factors, they were not sufficient to justify the decision.

Take our example above, where the employer’s explanation is that the successful candidate was more qualified. If the applicant is able to demonstrate that he/she/they were in fact more qualified than the successful candidate, the applicant has successfully rebutted the employer’s nondiscriminatory reason and a question of discriminatory motive is created. 

Discrimination Claim Goes to Trial

If the court finds at a preliminary hearing, called a motion for summary judgment, that the applicant has established a prima facie case for discrimination and raised a question about the legitimacy of the employer’s explanation for its failure to hire, the court will allow the case to go to trial, where a jury or judge will decide any questions of fact, including whether to believe the employer or whether the failure to hire was the result of discrimination.   

do i have a discrimination lawsuit?

In Summary, whether you have a viable discrimination lawsuit depends on whether you will be able to meet the above legal requirements for a discrimination claim.

If the employer has directly stated the reason for the adverse action is discrimination, you must demonstrate that you are a member of a protected class, that the employer’s action were materially adverse, and that the employer’s actions were motivated by illegal discrimination, in addition to any additional requirements imposed in your specific discrimination claim (e.g. for discrimination in hiring, that you were qualified for the position).

If the employer did not specifically state the action was motivated by discrimination, you will have to show that you were a member of a protected class, that the employer took an adverse action against you, and that the adverse action occurred under circumstances that give rise to an inference of discrimination. Depending on the type of claim, there may be additional requirements. (e.g. discrimination in hiring claim requires a showing that the applicant was qualified). You will also have to rebut the reason the employer provides by demonstrating it is pretext for discrimination. 

In both types of cases (direct and indirect evidence), if the applicant or employee can raise genuine issues of material fact as to all the legal requirements, the court will permit the case to go to trial, where the trier of fact (jury or judge) will determine whether the employer took the adverse action with discriminatory motive, in addition to any other factual questions. 

Even if you are able to establish these legal requirements for a discrimination claim, the employer may have defenses available that you will have to overcome. Additionally, not all discrimination claims that meet the legal requirements are worth pursuing. The damages you may recover must justify the time and expense of bringing a discrimination lawsuit. (Visit our Know Your Rights, Case Valuation page for information on how much your lawsuit may be worth). Only an experienced attorney specializing in employment law can tell you whether you have a viable discrimination lawsuit. If you think your case satisfies the legal requirements above, contact Fett Law and we would be happy to review your case for free of charge. 

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