Elliott-Larsen Civil Rights Act
The Elliott-Larsen Civil Rights Act, MCLS § 37.2101 et seq., protects a person from discrimination in employment, housing, and public accommodations. MCLS 37.2102(1). Each of these types of discrimination require the discriminated individual to prove different elements to prevail on an Elliott-Larsen claim.
This article will address the elements required to establish a prima facie case of each of the different types of discrimination prohibited by the Elliott-Larsen Civil Rights Act.
When analyzing claims under the Eliot Larsen Civil Rights Act, where no direct evidence of bias can be found, Michigan courts employ the framework for analyzing discrimination claims articulated by the United States Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-803; 93 S Ct 1817; 36 L Ed2d 668 (1973). Hazle v. Ford Motor Co, 464 Mich. 456, 462; 628 NW2d 515 (2001). Under the traditional McDonnell Douglas burden-shifting test, the plaintiff first has an obligation to present a prima facie case from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination. This requires the plaintiff to present evidence that: (1) he belongs to a protected class, (2) he suffered an adverse employment action, (3) he was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. Hazle, 464 Mich. at 463. If a plaintiff has sufficiently established a prima facie case, a presumption of discrimination arises. Id. The defendant then has the opportunity to rebut the presumption created by the plaintiff's prima facie case by producing evidence that its employment decision was made for a legitimate, nondiscriminatory reason. Id. at 464. If the employer makes such an articulation, the presumption created by the McDonnell Douglas prima facie case drops away and in order to survive a motion for summary disposition the plaintiff must then "demonstrate that the evidence in the case, when construed in the plaintiff's favor, is ‘sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff.'" Id. at 465.
The Elliott Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., defines sexual harassment to mean "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature" when submission to such conduct is a factor in employment decisions or when such conduct substantially interferes with an individual's employment. See, generally, MCL 37.2103(i)(i)-(iii); MSA 3.548(103)(i)(i)-(iii). There are two types of actionable sexual harassment under the Elliott-Larsen Civil Rights Act: (1) quid pro quo; and (2) hostile work environment.
Quid Pro Quo: Quid pro quo sexual harassment occurs when an employee suffers an unwelcomed sexual advance that leads to a direct adverse employment decision by the employer. To establish a claim of quid pro quo sexual harassment, a plaintiff must demonstrate, by a preponderance of the evidence, that (1) he or she was subjected to unwelcome sexual conduct or communications as described in the statute, and (2) that the employer or employer’s agent used submission to or rejection of the proscribed sexual conduct as a factor in an employment decision. Diamond v. Witherspoon, 265 Mich. App. 673, 688-689; 696 N.W.2d 770 (2005).
Hostile Work Environment: The second type of sexual harassment is the “hostile environment”. A hostile environment occurs when the prevalence of intimidating and sexual behavior—either words or conduct--rises to a level that interferes’ with an employee’s ability to do his or her job. In order to establish a claim for hostile work environment sexual harassment, a plaintiff must prove: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior—that the person causing the harassment is an employee of the employer. Radtke v Everett, 442 Mich. 368, 382-383; 501 NW2d 155 (1993).
Age Discrimination: Under the Elliott-Larsen Civil Rights Act, an employer is not permitted to “[f]ail or 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." MCLS § 37.2202(1)(a). To establish a prima facie case of age discrimination, an aged discriminated against must prove that he or she: (1) belongs to a protected class, (2) suffered an adverse employment action, (3) was qualified for the position, and (4) the job was given to another person [*12] under circumstances giving rise to an inference of unlawful discrimination. Hazle v. Ford Motor Co, 464 Mich. 456, 462; 628 NW2d 515 (2001).
Racial Discrimination: Under the Elliot-Larsen Civil Rights Act a prima facie case of race discrimination can be made by showing either intentional discrimination, disparate treatment, or disparate impact. Reisman v Regents of Wayne State University, 188 Mich. App 526, 538-539; 470 NW2d 678 (1991). In an intentional discrimination case, the plaintiff must demonstrate: (1) that he or she was a member of the affected class; (2) that he or she was discharged; (3) that the person who discharged him or her was predisposed to discriminate against persons in the affected class; and (4) that person actually acted on that disposition in discharging him or her. Id.
A claim of disparate treatment requires the plaintiff to prove: (1) that he or she was a member of the class entitled to protection under the act; and (2) that, for the same or similar conduct, he or she was treated differently than one who was a member of a different race.
The disparate impact theory is one recognized by the Michigan Appellate Courts but is seldom, if ever, utilized for a successful recovery by a discriminated person. Farmington Education Ass'n v Farmington School Dist., 133 Mich. App. 566, 573-574; 351 NW2d 242 (1984). The Michigan Court of Appeals has said: “Although there currently exist no holdings by the Michigan appellate courts which embrace the disparate impact theory, for several reasons we believe that this theory is available to litigants pressing claims under the Elliot-Larsen Civil Rights Act.” Id. While a claim of disparate impact may be recognized by the Michigan Appellate Courts, we are left to conjecture as to the elements needed to be proven.
Housing and Public Accommodations
The Elliott-Larsen Civil Rights Act prohibits discrimination in housing and public accommodations, too. A prima facie housing discrimination case is shown when the plaintiff proves: (1) that he or she is a member of a racial minority, (2) that he or she applied for and was qualified to rent or purchase certain property or housing, (3) that he or she was rejected, and (4) that the housing or rental property remained available thereafter. Ln Real Estate, LLC v. Kingdom Living Church, Mich. App. Unpub. No. 333208 (November 28, 2017).
Whether you have suffered discrimination at work or in obtaining housing, Arnold E. Reed & Associates, P.C., can successfully sue those who have wrongfully hurt you. Contact us—you will not be disappointed.