Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based on an individual’s race, color, sex, age, religion, national origin, height, weight, or marital status. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, sex, color, religion, or national origin. The Age Discrimination in Employment Act of 1967, the Michigan Persons with Disabilities Civil Rights Act, and the Americans with Disabilities Act of 1990 also prohibit discrimination.

Regardless of which statutory cause of action is pleaded, causes of action under the Michigan and federal antidiscrimination statutes proceed under two basic theories: disparate treatment or disparate impact. Under these theories, the plaintiff has the initial and the ultimate burden of proof.

Where a disparate-treatment theory of employment discrimination is alleged, the plaintiff is required to prove that he or she was harmed as a result of the employer’s discriminatory intent. This is in contrast to the disparate-impact theory, which does not require the plaintiff to prove intent. Rather, the disparate-impact theory examines results. Unlawful discrimination occurs under the disparate-impact theory when an employer uses a neutral policy or practice that falls more harshly on a protected group, and the policy or practice cannot be justified by business necessity. Both theories may be advanced in the same lawsuit.

Ultimately, it is the employee’s burden to prove he or she has been the victim of discrimination in an employment action by utilizing direct or circumstantial evidence. Rarely will the employer expose direct evidence — evidence that is itself discrimination (e.g., we don’t hire African Americans).

Most often, the employee has a more difficult burden to prove that there is no other reason for the decision other than illegal discrimination. It will ultimately come down to whether the employer’s explanation of the employment action is denounced as pretext — (1) the employer’s explanation had no basis in fact; (2) if the reason had a basis in fact, it was not the actual reason motivating the decision; or (3) if the reason was a motivating factor, it was insufficient to justify the decision. Each case has its own distinct fact pattern, but generally this can be proven by the employer’s shifting reasoning, comparator evidence, statistics, similar treatment of others in the protected class, deviation from practice or policy without explanation, or lack of actual performance data to justify the action.

If you are the victim of discrimination, you do not have to suffer or “deal with it.” Our employment discrimination attorneys will explain all of your rights, explore every option, and provide you with aggressive representation when needed. We have a proven track record of achieving successful outcomes inside and outside of the courtroom. Contact us today by filling out the form here or by calling us at (248) 729-2414 for more information.