When you’re employed, it’s generally understood that if you suffer a workplace injury, you don’t normally have to sue your employer to recover for losses suffered: your medical bills and a percentage of your wages are covered by the Michigan Workers’ Disability Compensation Agency system. But what if you are treated unfairly due to your sex, race, age, or other legally protected category? Can you still sue?
In most cases, the answer is yes, but there are often steps you have to take first. Let’s look at employment discrimination as an example.
Filing a Discrimination Claim in Michigan
You can file a charge of discrimination with either the Michigan Department of Civil Rights (MDCR) or the Equal Employment Opportunity Commission (EEOC). The latter enforces federal law, which only covers companies with 15 or more employees (for most categories of discrimination), so if you work for a smaller employer, the MDCR is your best option. You must file a complaint with the MDCR within 180 days of the date you believe you experienced discrimination, while you may have up to 300 days to file with the EEOC.
It is important to recognize that the agency investigation process is not about whether your claim has merit; it is to see if the agency wants to investigate the claim themselves, or just allow you to go to court and handle it. It has nothing to do with whether you have a good claim.
With an MDCR complaint, you must file a formal complaint, a copy of which will be provided to your employer. An employer typically has 14 days to agree to mediation or come to a mutually acceptable agreement. If they refuse to mediate, the MDCR will continue to process the complaint by conducting an investigation. If the investigator concludes that there’s not enough evidence to back your complaint, the case will be dismissed, although you may file a petition for reconsideration.
If the MDCR believes that your accusations are supported by the evidence, a conciliation conference will occur. This is rare, because they handle a large number of files at any given time. A conciliator will offer a proposed solution and if your employer accepts, then the complaint can be closed. If they don’t, the MDCR may order a public hearing, after which the Civil Rights Commission will either dismiss the complaint or impose remedial actions on your behalf.
If you file a charge with the EEOC, it will send a notice to your employer within 10 days and do one of the following: invite you and your employer to mediate your dispute or ask the employer to provide a written answer to your complaint before your case goes to an investigator.
If EEOC investigators determine that discrimination did not occur (the most common result, again, given the large number of cases they handle), you will receive a ‘Notice of Right to Sue,’ which allows you to proceed with a civil lawsuit. On the other hand, if the EEOC finds evidence of discrimination, it will seek to reach a voluntary settlement with your employer.
What if Your Employer Refuses to Settle?
In cases where a settlement cannot be reached, your case will be referred to the EEOC’s legal staff (in some cases the Department of Justice may get involved), who will decide whether to file a lawsuit. If they decline, they will give you a ‘Notice of Right to Sue,’ so you can proceed with your claim in court. This is called ‘exhaustion’ of your administrative remedy. Under Michigan state law, discrimination claims do not require exhaustion, so if you complained to the MDCR, you can go on to sue your employer if the agency fails to resolve your case.
What if Your Employment Agreement Has an Arbitration Provision?
If your employer has a valid arbitration provision in its employment agreements, your discrimination claim may be subject to arbitration, so review your contract before filing any lawsuit. Even if there is an agreement that you signed just before or when you started your job, that does not mean it’s enforceable. Arbitration provisions also do not prevent an employee from filing a complaint with MDCR or EEOC, however.
Although you can sue your employer in Michigan, there may be administrative steps you need to take first. Your best option is to discuss your case with a Detroit employment attorney who can advise you on how to proceed and provide representation aimed at getting best results for your claim.
Carla D. Aikens, P.L.C.
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