Nick Roumel & Associates

Do I Have a Case?

Most employment in Michigan is "at will." In other words, there is nothing illegal about an employer taking an adverse action against you for any reason, for no reason, or for an unfair reason.

What is an "adverse action?" An employee doesn't have a case without it. Being fired, demoted, denied a promotion, or not being hired may fit the bill. Merely being treated unfairly, or being given a bad performance review, is generally not enough. However, if it rises to the level of a "hostile work environment" that may satisfy the requirement of an adverse action. (See the Harassment Claims section.)

1. Discrimination Claims

   An employee must be able to establish that there was something more than unfair treatment on the basis of the following "protected characteristics":

   Race, color, sex, marital status, age, religion, height, weight, or national origin. (Note: while sexual orientation or gender identity are not protected characteristics, in limited circumstances, you may be able to prove it was sex discrimination.)

   Proving discrimination requires showing:

   1. That you were a member of a protected class;
   2. That you were qualified for the position;
   3. That the employer took an adverse employment action against you;
   4. That the adverse employment action was because of unlawful discrimination, and that the employer's stated reason for the adverse employment action was not the real reason, or "pretext."

   Element (d) is by far the hardest element to prove in a discrimination case. This can be proved by direct evidence (e.g., "I think you're too old for the job, and I'm terminating your employment"). Usually one has to prove it by indirect evidence - for example, an African American worker may be able to show that he is treated differently from his white counterparts, if he is fired for being late on one occasion but white workers get three warnings before they are fired for tardiness. Also, for a fired worker, one would also have to generally prove that they were replaced by someone who is not from the protected class (for example, the fired African American worker in the previous example may be able to show that he was replaced by a white worker).

   Discrimination is also forbidden in the areas of public accommodations, housing, and education.

   There are volumes of cases interpreting civil rights statutes, and the short summary above is by no means intended to be exhaustive or complete - just by way of illustration. Ultimately, every case rests on its own facts.

2. Disability Claims

   An employer may not discriminate against a "qualified person with a disability." This person who, with or without reasonable accommodations, can perform the essential functions of the job the person holds or seeks.

   "Disability" means a person with a physical or mental impairment who is substantially limited in one or more "major life activities." It can also mean a person with a record of such impairment, or who is regarded as having such an impairment. However, simply having a medical condition, or being under a doctor's care, is often not enough to establish a disability.

   Disabled workers are entitled to reasonable accommodations at work and may not be discriminated against or retaliated against for being disabled, requesting accommodations, or making complaints.

   Disability discrimination cases are fact-intensive and require strong medical evidence. They are the most difficult to prove of all employment discrimination cases. Unfortunately, the courts have interpreted the disability statutes to make it much more difficult for disabled workers to show either that they are legally disabled, or that they can perform the essential functions of the job. For example, a person who can control their condition, with medication or otherwise, may have difficulty proving a case.

3. Harassment Claims

   Harassment has no place at work. However, whether it is illegal is another question.

   Sexual harassment is illegal if it is a condition of obtaining or keeping employment, or getting some other tangible job benefit. It is also illegal if it creates a "hostile environment" that is "severe or pervasive" and substantially interferes with one's employment.

   Hostile environments are also illegal if on the basis of race, national origin, or any of the other "protected characteristics" covered by discrimination claims, including disability. Occasionally and rarely, legal retaliation claims (see above) can be premised on "retaliatory harassment" instead of a firing or negative job action.

   It is important that victims of hostile environments report that conduct to their employer to give them an opportunity to take appropriate, remedial action. If the conduct is not reported, or the employer has taken adequate steps, they may not be liable.

   Harassment or hostile environments are not illegal if they are not on the basis of a protected characteristic. In other words, while personality conflicts or bad supervisors can certainly make work life miserable, being a jerk is not yet illegal.

4. Retaliation Claims

   Under certain circumstances, if an employee makes a complaint, they may not face retaliation by their employer. Not all complaints are protected. For example, complaints to one's boss or Human Resources that the employee is merely being treated unfairly are not sufficient. The types of complaint that are protected are as follows:

   • Good faith complaints of discrimination or harassment on the basis of a "protected characteristic" (see "Discrimination Claims", "Disability Claims", and "Harassment Claims", above)
   • Complaints to a governmental agency, including the Department of Civil Rights, the Equal Employment Opportunity Commission, the Department of Labor, concerning discrimination or a pay dispute
   • Complaints to a governmental agency regarding suspected illegal or unethical conduct at your worksite, including safety issues
   • Certain activity protected by the First Amendment, including one's political actions and communications on issues of public concern (note: usually only applies to governmental employers and there are many limitations)

   If at any time an employee has sufficient evidence to believe in good faith that he or she is a victim of illegal discrimination, a formal, written complaint should be made to HR or the appropriate party. Not only should the employer investigate the complaint, but it will help protect the employee who may not be retaliated against for the complaint.

   An employee also is protected if he or she is retaliated against for refusing to act illegally or unethically, or for asserting certain "well-established" legal rights in the workplace.

5. Contract Claims

   It used to be that an employee could point to an employee handbook, or other evidence of workplace rules, and make an argument that they were fired illegally, because the employer broke their own policy. No more. Almost all those handbooks are now made irrelevant by "at will" policies.

   However, in extremely rare circumstances, the facts may show that an employee was made a firm and undeniable written or oral promise of continued employment on certain conditions. These types of cases may still be actionable.

6. FMLA (Family Medical Leave Act)

   An employer (generally at least 50 employees) is obligated to can't punish an employee who takes time off under the FMLA by taking an adverse employment action, from firing to a less desirable job assignment.

7. ERISA (Employee Retirement Income Security Act)

   This involves noncompete clauses and other statutory claims.

In closing, I would like to provide you with some standard advice about pursuing any discrimination case in a timely fashion. In doing so, I make no representation as to what a court would consider as the starting point for "running the clock" - generally it's the date of a firing - but it can also be a discriminatory act other than a firing. Perhaps, without saying for certain, it may be the date you were placed on a PIP.

There is a statute of limitations that requires you to file your claim of employment discrimination with the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights (MDCR) within 300 days after the last incident of discrimination occurred to preserve your rights to later file a lawsuit under federal law. Alternatively, you must file your lawsuit under Michigan state law no later than three years after the last incident of discrimination occurred, if you have elected not to file a complaint with the EEOC or MDCR. If you fail to comply with these statutes of limitation dates, you will be precluded from advancing your claim in the future. You may wish to go to www.eeoc.gov for more information.

What to do if you're having trouble on the job?

See a lawyer. By far the best thing for a person with a job to do - especially in this economy - is to keep it. Finding a new job after you are fired - especially after suing a former employer - is a very difficult thing to do.