FEPA Discrimination Charge and Right-to-Sue Procedure — Michigan

FEPA Discrimination Charge and Right-to-Sue Procedure (Michigan)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

TO: [________________________________] (Complainant)
FROM: [________________________________] (Attorney)
DATE: [__/__/____]
RE: Eligibility to File MDCR Charge / ELCRA Civil Action — Michigan

1. Threshold Eligibility Questions

2. Substantive Analysis

a. Protected Class. Complainant is a member of the following ELCRA-protected class(es) under MCL § 37.2202: [________________________________].

b. Adverse Employment Action. [________________________________].

c. Causal Connection / Evidence.

[____________________________________________________________]

d. SOL & Continuing-Violation Analysis. ELCRA claims accrue on the date of the discriminatory act and the 3-year SOL is not tolled by the continuing-violation doctrine for discrete acts under Garg v. Macomb County Community Mental Health Services, 472 Mich. 263 (2005). Hostile-environment claims may rely on acts within the limitations period.

e. Damages Snapshot. ELCRA permits compensatory damages, including economic loss, emotional distress, humiliation, and exemplary damages where the defendant's conduct is willful and wanton. Attorneys' fees recoverable under MCL § 37.2802. Title VII caps (42 U.S.C. § 1981a(b)(3)) do NOT apply to ELCRA claims.

3. Strategic Recommendation

☐ File MDCR charge (administrative track; preserves federal cross-filing)
☐ File EEOC charge (dual-designated with MDCR)
☐ Skip administrative filing and file directly in Michigan circuit court within 3-year SOL
☐ Combine: MDCR/EEOC dual filing + circuit-court suit after EEOC right-to-sue
☐ Decline representation — claim untimely or non-viable

Recommended Action: [________________________________]

Part B — Charge of Discrimination (MDCR Filing)

MICHIGAN DEPARTMENT OF CIVIL RIGHTS
COMPLAINT OF DISCRIMINATION

Basis of Discrimination (check all that apply — ELCRA + PWDCRA)

☐ Race (including hair texture and protective styles per CROWN Act)
☐ Color
☐ Religion
☐ National origin
☐ Sex (including pregnancy)
☐ Sexual harassment
☐ Sexual orientation
☐ Gender identity / expression
☐ Age (any age, with limited statutory exceptions)
☐ Height
☐ Weight
☐ Marital status
☐ Familial status
☐ Disability (PWDCRA)
☐ Arrest record (employment only)
☐ Retaliation
☐ Other: [________________________________]

Particulars (Narrative Statement)

I, [________________________________], state as follows:

1. I am a member of the protected class(es) checked above. Specifically: [________________________________].

2. I was employed by Respondent as [________________________________] from [__/__/____] until [__/__/____] (or, if still employed, "to the present").

3. Discriminatory Acts. On or about [__/__/____], Respondent took the following adverse action(s) against me: [____________________________________________________________].

4. Comparators. Similarly situated employees outside my protected class were treated more favorably as follows: [____________________________________________________________].

5. Direct Evidence. [Name/title] made the following statement(s): [________________________________].

6. Internal Complaints. I [☐ did ☐ did not] complain internally. Details: [________________________________].

7. Retaliation (if applicable). After I engaged in protected activity on [__/__/____], Respondent retaliated by [________________________________].

8. I believe I was discriminated against because of my [protected class] in violation of the Elliott-Larsen Civil Rights Act, MCL § 37.2202 (and, where applicable, the Persons with Disabilities Civil Rights Act, MCL § 37.1202, and Title VII / ADA / ADEA).

Verification:

I declare under penalty of perjury under the laws of the State of Michigan that the foregoing is true and correct to the best of my knowledge.

Signed: ______________________________ Date: [__/__/____]

(Notarization not required by MDCR but recommended for EEOC cross-filing.)

State of Michigan, County of [____________] ss.
Subscribed and sworn to before me this ____ day of __________, 20__.
______________________________
Notary Public

Part C — Right-to-Sue / Withdrawal Demand Letter

[Date]

Michigan Department of Civil Rights
Attn: Complaint Processing
Cadillac Place
3054 W. Grand Blvd., Suite 3-600
Detroit, MI 48202

Via Certified Mail and MDCR Online Portal

Re: Withdrawal of MDCR Complaint and Election to Proceed in Circuit Court
Complaint No.: [____________]
Complainant: [________________________________]
Respondent: [________________________________]

Dear MDCR Complaint Processing:

Pursuant to Complainant's election under MCL § 37.2801 to pursue a direct civil action in Michigan Circuit Court, Complainant hereby withdraws the above-referenced MDCR complaint and respectfully requests:

1. A written confirmation of the withdrawal and case closure;
2. If the matter has been cross-designated with the EEOC, that MDCR notify EEOC and request issuance of an EEOC Notice of Right to Sue under 29 C.F.R. § 1601.28; and
3. Confirmation that MDCR will preserve the investigative file pending litigation discovery requests.

Complainant intends to file suit in the Circuit Court of [____________] County, Michigan, within the 3-year statute of limitations set forth in MCL § 600.5805(10) and Garg v. Macomb County Community Mental Health Services, 472 Mich. 263 (2005).

Sincerely,

______________________________
[Complainant Name]
[Address]
[Phone] | [Email]

cc: [Respondent / Respondent's counsel]; EEOC Detroit District Office (if dual-filed)

Part D — Pre-Suit Civil Complaint (Template)

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF [____________]

Case No.: [____________]-CD
Hon.: [____________]

COMPLAINT AND JURY DEMAND

NOW COMES Plaintiff, [________________________________], by and through undersigned counsel, and for Plaintiff's Complaint against Defendant states:

I. Parties, Jurisdiction, and Venue

1. Plaintiff is a resident of [____________] County, Michigan.

2. Defendant is [a Michigan corporation / foreign corporation authorized to do business in Michigan / LLC] with its principal place of business at [________________________________].

3. Defendant is an "employer" within the meaning of MCL § 37.2201(a) because it employs one or more persons.

4. This Court has subject-matter jurisdiction under MCL § 600.605 and MCL § 37.2801.

5. Venue is proper in [____________] County under MCR 2.222 because the discriminatory acts occurred in this county and/or Defendant resides or conducts business here.

6. No administrative exhaustion is required for an ELCRA claim. MCL § 37.2801; Marsh v. Dep't of Civ. Serv., 173 Mich. App. 72 (1988).

II. Factual Allegations

7. [____________________________________________________________]

8. [____________________________________________________________]

9. [____________________________________________________________]

III. Count I — Discrimination in Violation of the Elliott-Larsen Civil Rights Act, MCL § 37.2202

10. Plaintiff incorporates the preceding paragraphs.

11. Plaintiff is a member of a protected class under MCL § 37.2202, namely [protected class].

12. Defendant subjected Plaintiff to adverse employment action because of Plaintiff's [protected class] in violation of MCL § 37.2202.

13. As a direct and proximate result, Plaintiff has suffered lost wages and benefits, emotional distress, humiliation, and damage to professional reputation.

IV. Count II — Disability Discrimination, MCL § 37.1202 (PWDCRA) [if applicable]

14. Plaintiff incorporates the preceding paragraphs.

15. Plaintiff is a person with a disability within MCL § 37.1103(d).

16. Defendant failed to accommodate and/or terminated Plaintiff because of Plaintiff's disability.

V. Count III — ELCRA Retaliation, MCL § 37.2701 [if applicable]

17. Plaintiff engaged in protected activity by [________________________________].

18. Defendant retaliated against Plaintiff by [________________________________].

VI. Count IV — Hostile Work Environment, MCL § 37.2103(i), § 37.2202 [if applicable]

19. Plaintiff was subjected to a hostile work environment based on [protected class], including [________________________________].

20. The harassment was severe or pervasive and altered the conditions of Plaintiff's employment.

21. Defendant knew or should have known of the harassment and failed to take prompt and effective remedial action.

VII. Prayer for Relief

WHEREFORE, Plaintiff prays for judgment against Defendant for:

a. Back pay, front pay, and lost benefits;
b. Compensatory damages for emotional distress, humiliation, and reputational harm;
c. Exemplary damages for willful and wanton conduct;
d. Reinstatement or front pay in lieu thereof;
e. Reasonable attorneys' fees and costs under MCL § 37.2802;
f. Pre-judgment and post-judgment interest under MCL § 600.6013;
g. Injunctive and equitable relief; and
h. Such other and further relief as the Court deems just and equitable.

JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.

Respectfully submitted,

______________________________
[Attorney Name] (P[________])
[Firm Name]
[Address]
[Phone] | [Email]
Attorney for Plaintiff

Part E — Pre-Filing Checklist

☐ Calendar 180-day MDCR administrative filing deadline
☐ Calendar 300-day EEOC cross-filing deadline (Title VII / ADA / ADEA)
☐ Calendar 3-year ELCRA / PWDCRA civil-action SOL under MCL § 600.5805 (Garg)
☐ Confirm employer coverage (ELCRA: 1+; Title VII: 15+; ADEA: 20+)
☐ Identify all protected classes under ELCRA § 37.2202 and PWDCRA § 37.1202
☐ Preserve all documentary evidence (emails, texts, performance reviews, pay records, comparator data)
☐ Determine forum strategy: MDCR-only, EEOC-only, dual-file, or direct circuit-court suit
☐ Note ELCRA does NOT require administrative exhaustion (MCL § 37.2801)
☐ Draft MDCR complaint (and EEOC Form 5 if dual-filing)
☐ File via MDCR portal or regional office
☐ If withdrawing MDCR complaint for direct circuit-court suit, prepare withdrawal letter (Part C)
☐ Calendar 90-day window after any EEOC Notice of Right to Sue for federal claims
☐ Confirm venue under MCR 2.222
☐ Note Title VII damages caps do NOT apply to ELCRA — uncapped compensatory and exemplary damages
☐ Issue litigation hold to client; preservation demand letter to employer
☐ Prepare jury demand
☐ Evaluate whether to add PWDCRA disability count and/or hostile-environment count

Sources and References

• Elliott-Larsen Civil Rights Act, MCL § 37.2101 et seq.: https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-Act-453-of-1976
• MCL § 37.2101 (short title): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-37-2101
• MCL § 37.2202 (unlawful employment practices): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-37-2202
• MCL § 37.2801 (civil action): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-37-2801
• Persons with Disabilities Civil Rights Act, MCL § 37.1101 et seq.: https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-Act-220-of-1976
• MCL § 600.5805 (3-year personal-injury SOL): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-600-5805
• Michigan Department of Civil Rights: https://www.michigan.gov/mdcr
• MDCR Jurisdiction: https://www.michigan.gov/mdcr/enforcement/investigation/jurisdiction
• MDCR Filing a Complaint: https://www.michigan.gov/mdcr/contact/file-a-complaint
• EEOC Detroit District Office: https://www.eeoc.gov/field-office/detroit/location
• Garg v. Macomb Cnty. Cmty. Mental Health Servs., 472 Mich. 263 (2005) (3-year SOL; no continuing-violation tolling for discrete acts)
• Hazle v. Ford Motor Co., 464 Mich. 456 (2001) (McDonnell Douglas framework under ELCRA)
• Marsh v. Dep't of Civ. Serv., 173 Mich. App. 72 (1988) (no exhaustion required)
• Rouch World v. Dep't of Civ. Rights, 510 Mich. 398 (2022) (ELCRA "sex" covers sexual orientation)
• 2023 PA 6 (codifying sexual orientation and gender identity in ELCRA)
• Bostock v. Clayton County, 590 U.S. 644 (2020)