I. Title VII The Federal Bar Association's Basics Of Employment Discrimination Law Pro Se Clinic Monday, November 15, 2010 1:00 p.m. Room 115 Title VII is a federal employment discrimination act that prohibits employment discrimination based on race, color, religion, national origin and sex (including pregnancy). Sex discrimination includes sexual harassment discrimination. Title VII is the oldest and broadest of the modern federal civil rights laws; judicial constructions of Title VII are often applied to other federal, state and local employment discrimination laws. Title VII applies to federal, state and local governments and to private employers, labor organizations and employment agencies. In order to be covered an employer must be a "person" (including a corporation, partnership or any other legal entity) "engaged in an industry affecting commerce" who has 15 or more employees for each working day for 20 or more calendar weeks in the current or preceding calendar year. 42 U.S.C. 2000e-(b). See Walters v. Metropolitan Educational Enterprises, Inc., 117 S. Ct. 660 (1997). In order to establish a claim under Title VII, you can present direct evidence of discrimination. Direct evidence of discrimination, however, is rarely available in most cases. Where there is no direct evidence of intentional discrimination, a plaintiff may establish a "prima facie" case through circumstantial evidence by proving the following four elements: 1. You are a member of a protected group; 2. You were subjected to an adverse employment decision; 3. You were qualified for the position; and 4. You were replaced by a person outside the protected class, or similarly situated employees outside the protected class were treated more favorably. Amini v. Oberlin College, 440 F.3d 350 (6th Cir. 2006); Logan v. Denny's Inc., 259 F.3d 558 (6th Cir. 2001). Prima Facie ("on its face") cases eliminate the most common non-discriminatory reasons for the plaintiff's rejection and raises an inference of discrimination because the acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible (discriminatory) factors. Direct Evidence is an employment practice that is discriminatory on its face (e.g. a policy refusing to hire women or minorities for particular jobs, or a policy of providing lesser fringe benefits to female or minority employees). Direct evidence can also consists of comments, 1
writings, actions, etc. that are discriminatory on their face (e.g. the use of abusive/discriminatory names or unwanted sexual advances) Protected Group is a group of people qualified for special protection under the law. Protected groups include those based on race or color, national origin, sex and religion. II. The Civil Rights Act of 1866, 42 U.S.C. 1981 (as reenacted by the Civil Rights Act of 1870 and amended by the Civil Rights Act of 1991) The Civil Rights Act of 1866 (" 1981") states that "all persons shall have the same right to make and enforce contracts as is enjoyed by white citizens " The term "make and enforce contracts", "includes the making, performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. 1981(b). 1981 applies to private employment "contracts"; 1981 prohibits only "racial" discrimination; it does not prohibit discrimination based on sex, religion, age, citizenship, or any other characteristic. However, "race" is broadly defined under 1981 to mean identifiable classes of persons based on their ancestry or ethnic characteristics. Thus, 1981 prohibits racial discrimination not only against blacks but also against Jews, Iraqis, Latinos and Caucasians.; 1981 differs from Title VII's prohibition of intentional discrimination because of race or color in that (1) it applies to all employers regardless of size; and (2) it is enforced only through private lawsuits, without administrative enforcement.; There is a four-year statute of limitations for 1981 claims. There is no requirement to file with the EEOC or administrative agencies before filing a 1981 action in court.; State courts have concurrent jurisdiction with federal district courts when addressing 1981 claims.; 1981 permits successful plaintiffs to obtain a jury trial at which both equitable and legal relief, including compensatory and under certain circumstances, punitive damages may be awarded.; 2
III. The Age Discrimination in Employment Act The Age Discrimination in Employment Act ("ADEA") prohibits discrimination in hiring, promotion, assignment, compensation and discharge based on age. In order to establish a claim under ADEA, you can present direct evidence of discrimination. Direct evidence of discrimination is rarely available in most cases. Instead, you will likely need to establish the following four elements: 1. You were at least forty years old at the time of the alleged discrimination; 2. you were subject to an adverse employment action; 3. you were qualified for your position; and 4. you were either replaced by a younger individual or were somehow treated differently than similarly-situated younger employees. Barnett v. Department of Veterans Affairs, 153 F.3d 338 (6th Cir. 1998). To prevail in a disparate treatment case under the ADEA, a plaintiff must prove that age played a role or was a factor in the adverse decision. The ADEA does not prohibit age distinctions applied to persons under the age of 40; Unless justified by a statutory exception or defense, any fixed retirement age (50, 65, 70, etc.) is a violation of the ADEA; It is unlawful under the ADEA to imposer on members of the protected age group requirements or conditions not imposed on members of other age groups (e.g., an employer may not require employees over the age of 55 to take physical or mental tests not given to employees under the age of 55). IV. Michigan Elliott Larsen Civil Rights Act The Michigan Elliott Larsen Civil Rights Act ("ELCRA") is a state statute that prohibits employment discrimination because of religion, race, color, national origin, age, sex, weight or martial status. Sex discrimination includes sexual harassment. 3
In order to establish a claim under the ELCRA, you can present direct evidence of discrimination. Direct evidence of discrimination is not always available in these cases. Therefore, you will likely need to establish the following four elements: 1. You are a member of a protected group; 2. you were subjected to an adverse employment decision; 3. you were qualified for the position; and 4. you were replaced by a person outside the protected class, or similarly situated employees outside the protected class were treated more favorably. Lytle v. Malady, 458 Mich. 153 (1998); Dubey v. Stroh Brewery Co., 185 Mich. App. 561 (1990). Sexual harassment is specifically defined by ELCRA 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 such 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. Protected Group is a group of people qualified for special protection under the law. Protected groups include those based on race or color, national origin, sex, and religion. Adverse Employment Decision are ultimate employment decisions, such as hiring, firing, V. The Americans with Disabilities Act The Americans with Disabilities Act ("ADA") prohibits employment discrimination based on a disability or a perceived disability. The ADA also requires an employer to provide reasonable accommodation, unless providing the accommodation would cause an undue hardship to the employer. In order to establish a claim under the ADA, you can present direct evidence of discrimination. If you are unable to produce direct evidence, you need to establish the following three elements: 4
1. You are an individual with a disability; 2. who is otherwise qualified for his/her job; and 3. you were subjected to a materially adverse employment decision solely by reason of your disability. Brohm v. JH Properties, Inc., 149 F.3d 517, 520 (6th Cir. 1998). Disability under the ADA can be established with any one of the following: 1. a physical or mental impairment that substantially limits a major life activity; 2. a record of such an impairment; or 3. being regarded as having such an impairment. Otherwise Qualified is an employee who can perform the duties of his or her job with reasonable accommodations. An Undue Hardship occurs when the act of accommodating the plaintiff becomes unduly costly to the business, disruptive to the work environment or business operations or would fundamentally alter the nature or operation of the business. Major Life Activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Regarded as having such an impairment means the individual establishes that he or she has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. This does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. VI. Michigan's Persons with Disabilities Civil Rights Act The Michigan's Persons with Disabilities Civil Rights Act ( PWDCRA"), formerly the Michigan Handicappers' Civil Rights Act (MHCRA), MCL 37.1101, et. seq., is a state statute that prohibits employment discrimination because of an individual s disability or perceived disability. In addition, the Act requires the accommodation of a person with a disability unless the accommodation would pose an undue hardship on the employer. 5
Michigan courts will look to case law established under the ADA in construing the PWDCRA. Michigan courts have confirmed that cases interpreting the ADA are pertinent to the analysis of the PWDCRA, yet caution that differences in the language of the two statutes precludes automatic application of the ADA principles to PWDCRA. For example: The PWDCRA defines an employer as a person who has one or more employees the term includes the employer's agent. This definition is broader, however than the definition of a covered entity under the ADA, which is a person that employs 15 or more employees. Thus, an employer under the Michigan Act technically can include a company with only one employee. In order to establish a claim under the PWDCRA, you can present direct evidence of discrimination, or produce circumstantial evidence which establishes the following three elements: 1. You are an individual with a disability; 2. who is otherwise qualified for his/her job; and 3. you were subjected to a materially adverse employment decision solely by reason of your disability. Michalski v. Reuven Bar Levav, 463 Mich. 723 (2001). Disability under the PWDCRA can be established with any one of the following: 1. a determinable physical or mental characteristic that substantially limits a major life activity and is unrelated to the individual s ability to perform the duties of a particular job or unrelated to an individual s qualifications for employment or promotion; 2. a history of a determinable physical or mental characteristic described in part 1; or 3. being regarded as having a determinable physical or mental characteristic described in part 1. Otherwise Qualified is an employee who can perform the duties of his or her job with reasonable accommodations. Unrelated to the individual's ability means that with or without accommodation, an individual's disability does not prevent the individual from doing the duties of a particular job. 6
As with the ADA, the PWDCRA requires that to be perceived as disabled, an individual must be regarded as being disabled as defined by the statute. In other words, to establish a claim that the defendant regarded the plaintiff as disabled under the PWDCRA, the plaintiff must show: (1) that the defendant perceived the plaintiff as having a determinable physical or mental characteristic; (2) that the defendant perceived the characteristic as substantially limiting one or more major life activities, and (3) that the characteristic was perceived by the defendant as unrelated to the plaintiff's job duties. VII. Retaliation claims Under Title VII, the ADA, the ADEA, ELCRA, and PWDCRA, you can bring a lawsuit for retaliation. In order to establish a claim of retaliation under Title VII, the ADEA, the ELCRA, the ADA, or the PWDCRA, you must establish the following four elements: 1. you engaged in a protected activity; 2. the exercise of protected rights was known to your employer; 3. you were affected by an adverse employment decision; and 4. there is a causal connection between your protected activity and the employer's adverse employment action. Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367 (6th Cir. 2002). Protected Activity includes making a complaint of discrimination to your employer, filing a charge of discrimination with the Equal Employment Opportunity Commission, acting as a witness for an individual making a complaint of discrimination or assisting in the investigation of a discrimination complaint. DETROIT 99999-400 1182647 7