The ADA and Michigan Persons with Disabilities Civil Rights Act – Differences Matter!


By: Claudia D. Orr, Attorney, Plunkett Cooney 


The ADA and Michigan Persons with Disabilities Civil Rights Act – Differences Matter!

We often lump together state and federal civil rights laws but there are some major differences. For example, I recently advised readers that the US Court of Appeals for the Sixth Circuit just held that the tender back rule does not apply to federal civil rights claims. But that doctrine is still valid under state civil rights laws. As a reminder, the tender back rule requires the return of the consideration given for a release of claims at or before the time the release is challenged and a lawsuit if filed.  I am still upset with the 6th Circuit’s ruling, but I digress.

Other differences include whether there can be individual liability (state yes, federal no) or punitive damages which are intended to punish (state no, federal yes), whether an administrative charge must first be filed with a civil rights agency (state no, federal yes), whether you can shorten the limitations period by contract (state yes, federal maybe if it is drafted correctly) and some of the prima facie cases/burdens of proof, to name a few.

Today’s case, Cook v DTE Energy Corp Serv, LLC, an unpublished decision of the Michigan Court of Appeals released this month, demonstrates some differences when it comes to state and federal disability civil rights laws. Let’s look at what happened and then I will tell you what caught my eye in this case.

Plaintiff Cook began working for Mich Con in 1980 and became a DTE employee after the merger. She was a business support specialist and was expected to submit weekly production schedules documenting her work. Specialists are evaluated based on their productivity (90-120% “fully meets expectations”, 80-89% “meets many”, below 80% “does not meet”). The ratings are calculated based on days the specialist actually worked and did not reflect time off.  In addition, Cook constantly failed to turn in her production reports (which also adversely affected her production numbers), and this became a major issue.

Cook also had a history of taking time off from work. She had intermittent leave under the Family and Medical Leave Act (“FMLA”) in 2010 and 2011 to care for her father, and she had various injuries and illnesses that caused her to take additional time off during periods when she did not have an active, approved FMLA leave.

From late 2013 through October or November 2014 Cook missed over 150 hours during the “rolling” 12 month period, which burdened other employees. Cook was instructed she should minimize her sick time. After Cook had been given a coaching and a documented verbal warning for attendance, she wrote on the warning notice that she would pursue an intermittent FMLA leave for her absences.

Following her evaluation for 2013, Cook was placed on a performance improvement plan because her production reports failed to provide sufficient detail. By April 2014, Cook showed improvement in her production, but still failed to provide sufficient detail in her production reports.  Cook successfully completed the performance improvement plan in July 2014, but was warned that if she failed to maintain her level of performance, she could be terminated. Cook failed to do so. Her mid-year performance review in September 2014 indicated that Cook’s production had already dropped to 36% the very next month following the performance improvement plan and she had stopped submitting her production reports.  Cook’s 2014 evaluation indicated that she was “at risk” and “off track”.

In September 2014, Cook suffered three strokes and was hospitalized. Because of confusion and vision impairment, her doctor said she was not fit for work.  Cook took a leave of absence from work.  The leave was extended through December 2014, and her doctor provided a tentative return to work date of March 2, 2015. While her doctor opined that she was totally disabled, an independent medical examination on January 13, 2015, determined that there were no medical conditions that would prevent her from returning to work. DTE sent Cook a letter asking her to return to work on January 27, 2015 and she returned on February 3, 2015.

Cook failed to report to work on March 3, 2015.  Cook said she thought she had informed “someone” that she was not going to be in on that day, but DTE terminated her employment determining that this absence was a no call/no show.

Cook initiated a lawsuit under the Michigan Persons with Disabilities Civil Rights Act (“MPDCRA”) in March 2016.  We can only assume that she sued under state law because she had failed to timely assert a charge with the Equal Employment Opportunity Commission within 300 days as required under the Americans with Disabilities Act.

There were various claims asserted under MPDCRA (discrimination because of disability or perceived disability), harassment and hostile work environment because of disability and retaliation for taking medical leave. What puzzles me though is why a claim under FMLA was not pursued.  Cook also alleged that DTE failed to promote her because of her race in violation of the Elliott-Larsen Civil Rights Act, but she later voluntarily dismissed that claim (perhaps because of her documented performance issues). Eventually, all of her claims were dismissed when the trial court granted DTE’s Motion for Summary Disposition finding Cook failed to prove one or more elements of each claim.

Cook appealed and the Michigan Court of Appeals in a detailed analysis affirmed the trial court’s dismissal of each claim for various reasons.  But those reasons are not what this article is about.

Two things caught my attention in this case and reminded me of some basic differences between the MPDCRA and the ADA. First, the appellate court found that, while Cook had shown she had various medical conditions, she failed to prove she had a “disability”. This required a showing that she was substantially limited in her ability to perform some major life activities. The court noted that while Cook had discussed the fact that she had suffered strokes causing her to be unable to return to work for a period of time, the appellate court found that she failed to make this argument in “that portion of her response in which she argued that … she had a qualifying disability” under the act.

Second, the court also emphasized that a disability must not prevent the employee from performing the duties of her position, with or without an accommodation.  MCL 37.1103.  The court found that DTE had plenty of documentary evidence (from Cook’s physician, the Social Security Administration and the Unemployment Agency) showing that Cook was disabled and unable to work during the “relevant time period”.

So, think about this.  While the court recognized that Cook had medical conditions, it found that she failed to prove she had a disability, but the court also found she was “disabled” and unable to work during the “relevant time period.”

Would a court’s focus and findings on these two issues be the same under the Americans with Disabilities Act (“ADA”)? Probably not today.  Back in the “good ole days” before the ADA was amended, the act required plaintiffs to walk a fine line between being sufficiently incapacitated to rise to the level of a disability, but not so disabled that the person could not perform the essential functions of their position with or without a reasonable accommodation. This was a very difficult balance to achieve for plaintiffs.

But the amendment to the ADA in 2008 changed this.  Now, the EEOC and some courts find temporary injuries (such as a torn tendon) rise to the level of “disability” under the ADA. In addition, when an employee is unable to perform the essential functions of their position even with an accommodation, the employer must now consider whether a leave of absence to permit the employee time to recover is a reasonable accommodation.

This combination is very difficult for employers. The ADA was passed with the intent of removing barriers for individuals with disabilities (such as being blind, deaf or paraplegic) so that they could perform the essential functions of their job. Now, a person who is injured and unable to walk temporarily may be entitled to a leave of absence under the ADA.

But there is hope for employers. Recently, the US Court of Appeals for the Seventh Circuit reaffirmed that the ADA is not a law intended to provide an employee with a leave of absence but assistance to disabled workers so they can work. Severson v Heartland Woodcraft, Inc, 872 F3d 476 (CA 7, 2018).  Granting an extended leave does not enable an employee to perform all of the essential functions of his job, but rather enables the person to avoid performing all of the functions.  An occasional or short term leave may be permitted under the ADA when, for example, an employee needs time off for a flare up of lupus so painful that the employee must stay home. But, “[l]ong-term medical leave is the domain of the FMLA… recognizing that employees will sometimes be unable to perform their job duties….In contrast, ‘the ADA applies only to those who can do the job.’”  Id at 481. Please keep in mind that this is not the rule in our federal circuit. This split in the federal circuits may eventually set the issue up for a ruling by the US Supreme Court.

Contrast that to the MPDCRA.  Because Cook was unable to perform the essential functions of her position during “the relevant time” (even with reasonable accommodation), she did not have a disability under the MPDCRA.  Since 1999, providing a leave of absence, or a “reasonable time to heal”, has not been required under our state law.  Lamoria v Health Care & Retirement Corp, 233 Mich App 560 (1999)

In addition, under the ADA, “accommodations” are only limited by imagination and the employer’s ability to prove an “undue hardship” (which becomes more difficult to prove as the employer’s financial and human resources increase).  However, our state law lists the specific accommodations that are required and, based on the size of the workforce, indicates the amount that must be spent by the employer before it is an undue hardship.

So, what should an employer do?  First, make sure that the employment application gives notice to applicants (and future employees) that requests for accommodations under the MPDCRA must be made in writing within 182 days of the day the need was known (or should have been known).

Second, make sure the employment application contains a 180-day limitations period that is properly worded to avoid being struck as to federal claims which must start with a charge at the EEOC.

Third, seek advice from an experienced employment attorney (such as the author) as disability issues arise.  Whether state or federal law is involved, these are the most complex legal issues faced by employers.  An attorney can advise concerning such things as how to lawfully seek further information about the disability and engage in the interactive process, and how to structure severance payments so that a release of claims will be honored despite the new tender back rule issue. There are differences between the state and federal disability civil rights laws and knowing how to properly navigate the legal mine field with both is key to avoiding liability.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at or at (313) 983-4863. For further information go to:    

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. October 2018.

United States, Canada and Mexico Reach Agreement on New Trade Pact; Labor Mobility Provisions Are Largely Unchanged


By: Alexandra LaCombe, Fragomen, Del Rey, Bernsen & Loewy LLP


United States, Canada and Mexico Reach Agreement on New Trade Pact; Labor Mobility Provisions Are Largely Unchanged

At a glance

The labor mobility provisions of the United States-Mexico-Canada Agreement are expected to be implemented consistent with existing practices under NAFTA, though each country continues to have the authority to interpret the agreement with respect to the cross-border movement of businesspersons, professionals, intracompany transferees, traders and investors.

 A closer look

Canada, Mexico and the United States have reached agreement on a new trilateral trade pact to replace the North American Free Trade Agreement (NAFTA). The agreement will be known as the United States-Mexico-Canada Agreement, or USMCA.

The labor mobility provisions of the new pact – which ease the cross-border movement of businesspersons, certain professionals, intracompany transferees, traders and investors – are largely the same as those of NAFTA.  Canada’s agreement late on Sunday, September 30, 2018 to join the pact negotiated by Mexico and the United States earlier in September ensured that the mobility system established by NAFTA could continue.

What’s next for the USMCA

The leaders of the three countries are expected to sign the agreement within 60 days.  It must be ratified by the legislatures of the three countries before it can take effect.  Ratification is expected to take place in 2019.

What the revised agreement means for employers and foreign nationals

The three countries are expected to implement the labor mobility provisions of the USMCA consistent with existing practices under NAFTA.  Until the new agreement takes effect, the NAFTA mobility provisions are expected to remain in place without interruption.

This should put to rest the concerns of the U.S. employers that they are in danger of losing their Canadian and Mexican employees who hold the TN visa status.  The TN is a visa category under which citizens of Canada and Mexico have been able to work in the U.S. in certain specific professional categories which primarily require a Bachelor degree.  Many of these categories are in the STEM fields.

Each country maintains the authority to interpret the provisions of the USMCA, and country-specific policies and application procedures related to businesspersons, intracompany transferees, professionals, traders and investors cannot be ruled out.  For example, Canada currently requires intracompany transferees to be currently employed with a foreign subsidiary outside Canada, in addition to having been employed for one year within the previous three years for that entity.  The United States recently announced a pilot program to test new intracompany transferee procedures for certain Canadian applicants and imposed stricter interpretations of the TN Economist category.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. October 2018.




By: Claudia D. Orr

It seems there are always lawsuits for unpaid commissions.  This one caught my eye because the employer proved several breaches of the agreement, but was not awarded any damages. Let’s look at Waalkes v Resource Communications, Inc, a newly issued unpublished opinion of Michigan Court of Appeals.

In October 2010, Resource Communications, Inc. (RCI) entered an employment contract with Jon Waalkes to work full-time selling its products. Under the agreement, Waalkes would be paid 50% of gross profits on the sales he made. When Waalkes reached a financial goal of $750,000, gross profits, the contract would terminate.

By September, 2015, Waalkes was quickly approaching the goal and gave written notice of his intent to leave the company and to start working in a similar capacity with the same customer and vendor base for his newly formed company Design Create Solve, LLC. The parties began the separation process and determined that $705K gross profit had already been attained and another $30K had been invoiced/ordered and was in process.  There was a discussion about the remaining $15K being offset against amounts that would be paid to Waalkes in commissions.

Instead of entering a written modification of the agreement, RCI sent Waalkes a notice that his plans were in violation of their agreement.  RCI locked Waalkes out of the computer system making it impossible for him to access customer files or issue any further “computerized” purchase orders. Waalkes continued to hand write purchase orders and transmit them to RCI via photos sent via his cell phone. This creative means of transmitting orders resulted in a time sensitive order being mishandled. In October 2015, Waalkes began working for his new company.

Waalkes filed a complaint seeking a court’s declaration of the parties’ rights. RCI (and its owner) filed a counter claim to protect the client base.  The parties agreed that Waalkes eventually sold $751K in gross profits, but RCI argued that Waalkes’ work with it ended prematurely because some of the invoices were still “in process” at the time of his departure and he did not meet the sales goal until February 2016, long after he left RCI. Waalkes asserted that being locked out of the computer system delayed his ability to meet the financial goal sooner, but that he actually eventually exceeded the goal that had been established.

The trial court found that Waalkes, in fact, had breached the employment agreement by engaging in competitive business activities prior to reaching the goal, but also found that RCI was not harmed by the breaches because it had received $750K in sales.  The court, however, enjoined Waalkes from soliciting business from RCI’s customers as prohibited by the employment agreement.

RCI appealed the damages ruling. On appeal, the court found that RCI had received the benefit of its bargain and did not suffer any compensable damages.

This case shows that even if you can prove your employee breached his employment agreement, you may not be entitled to damages unless you can prove you were harmed.  While it may not have changed the outcome of this case, sometimes a liquidated damages clause can be the answer. Commission agreements are tricky to write.

The agreement should address the event that causes the commission to be earned (i.e.,  when the product order is signed by the customer, the product is shipped, the payment is made or perhaps 30 days after payment is received assuming the customer has not returned the order).  The terms of the agreement were not stated in the case discussed above,  but the agreement may have lacked this term because work invoices were still “in progress” at the time Waalkes left the company.

A commission agreement should also reflect how soon after the commission is earned that it is to be paid (i.e., within 30 days, at the end of the following month, at the end of the quarter, 30 days after the fiscal year, etc.). Also, it doesn’t hurt to have the parties expressly disavow any application of the procuring cause doctrine which can be used by the sales person to argue for commissions for the life of the customer or product.

Better yet, if your company is selling goods, consider creating a bonus program instead of paying sales commissions so that you will not be subject to the sales representative statute in Michigan.  This is far safer for the company and allows it to determine whether to pay commissions that become due after termination of employment.  What’s the difference and how do yo do this?  This is one of the topics that will be addressed during DSHRM’s webinar on October 23, 2018 entitled “What’s new and what to do about it”.  Register now to save your “seat”.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at or at (313) 983-4863. For further information go to:  

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2018.




By: Carol G. Schley, Clark Hill PLC

            In a recent decision, the U.S. District Court for the Eastern District of Michigan ruled that a former employee’s claim that she was terminated in retaliation for reporting workplace harassment could proceed to a jury trial, and denied the employer’s motion to have the case dismissed on summary judgment.  While the details of the case are quite involved and are only briefly summarized below, the main focus of this article is on the lessons the case teaches.

            In the case, Shelley Garrett was initially hired by DaimlerChrysler AG, but due to several corporate mergers and spin-offs, she later worked for Mercedes-Benz Financial Services.  The employment application Ms. Garrett signed when she was first hired included a 6 months statute of limitations provision.  During the course of her employment, Ms. Garrett had positive annual reviews.

            In October 2013, Donald Berry became Ms. Garrett’s supervisor.  In October 2014, Ms. Garrett reported to HR instances of “inappropriate behavior” by Mr. Berry, including him calling women “bitches.” The employer investigated Mr. Berry’s conduct, during which it was learned that he had slapped or placed his hand near the rear end of a female employee, Dawn Carpenter, during a work function.  Mr. Berry was given a written warning about his conduct.  Subsequently, several employees reported to the employer that Mr. Berry and Ms. Carpenter were involved in a romantic relationship.  The employer asked Ms. Carpenter and Mr. Berry about this alleged relationship and they both denied it.  The employer took them at their word and did not investigate further, although a much later investigation by the company’s attorney established that they were in a relationship and had lied when previously asked about it.

            Subsequently, Mr. Berry’s employment was terminated and Ms. Carpenter became Ms. Garrett’s supervisor. There was evidence that several people in the office, including Ms. Carpenter, knew that Ms. Garrett had previously reported Mr. Berry’s alleged harassing conduct.  In 2016, Ms. Garrett had a workplace disagreement with a co-worker, Lisa Sesny.  As a result, Ms. Carpenter placed Ms. Garrett, but not Ms. Sesny, on a Performance Improvement Plan (“PIP”), which she successfully completed.  After another workplace disagreement between Ms. Garrett and Ms. Sesny, the employer terminated Ms. Garrett’s employment.  This decision was made after a meeting that included representatives of HR, senior management and Ms. Carpenter.  While they considered issuing a written warning to Ms. Garrett pursuant to the company’s written policy, they determined, based upon input from Ms. Carpenter, that Ms. Garrett “was not going to change and that she was hurting team morale.”  Ms. Garrett subsequently filed a lawsuit alleging she was terminated in retaliation for her reporting Mr. Berry’s harassing conduct.

            There are numerous takeaways from the court’s 45 page decision in this case, including the following:

  1. Review your documents frequently and revise as necessary – When Ms. Garrett commenced employment, she signed an application that said she was required to assert any claims against “Chrysler Corporation or any of its subsidiaries” within 6 months. However, her employment (at least initially) was with DaimlerChrysler AG, and she never worked for Chrysler Corporation. Finding that “Daimler Chrysler AG was in a better position to avoid confusion about which entities the time bar applied to,” the court refused to apply the 6 month statute of limitations to Ms. Garrett’s claims.  If the employment application Ms. Garrett signed correctly and broadly identified her employer, her claims may have been found to be time barred, allowing her employer to prevail on its summary judgment motion.  This is a reminder that employers must frequently review its key employment documents to ensure they remain accurate in light of changing circumstances.
  1. When you investigate, do a thorough job – In deciding whether Ms. Garrett could proceed to trial on her claims, the court noted that the employer conducted only a superficial investigation into whether Mr. Berry and Ms. Carpenter were in a relationship. The court also noted that no investigation was conducted by the employer in connection with the allegations that Mr. Berry had touched or slapped Ms. Carpenter’s rear end during a work function.  Both of these situations should have triggered a thorough investigation by the employer to determine their veracity and to ensure appropriate corrective action, if necessary.
  1. Document your decisions – The court took note that the employer’s stated reason for terminating Ms. Garrett (her alleged disruptive behavior and inability to get along with co-workers) conflicted with the positive performance reviews she received throughout her 16 years of employment. The court also noted that the employer failed to document the reasons for Ms. Garrett’s termination.  Contemporaneous and thorough documentation of work-related decisions, especially when it involves employment termination or other adverse employment actions, is necessary to help prove that the employer’s decision was thorough, reasoned and lawful.
  1. Train and re-train your employees on your policies – A manager who participated in the decision to terminate Mr. Berry testified at his deposition that he did not know whether the company had policies regarding sexual harassment and retaliation or whether these issues were covered by Michigan law. The company also admitted that prior to Ms. Garrett’s complaint, it had never investigated sexual harassment, gender discrimination or retaliation.  Employers must ensure that their managers and anyone else in a decision-making role are well-versed and periodically and thoroughly trained on company policies and the law regarding harassment and retaliation.  Such employees need to be able to recognize employees’ complaints that may involve unlawful conduct, and must be able to know how to effectively investigate complaints, whether it’s the first complaint or the 100th complaint the company has received.
  1. Follow established policies with consistency – In deciding that there were issues of fact on whether the employer’s termination of Ms. Garrett constituted unlawful retaliation, the court noted the employer failed to follow its progressive discipline policy. That policy provided that an employee with behavioral issues be provided a verbal warning, a written warning and a final written warning prior to being terminated.  In this case, Ms. Garrett never received a written or final warning. In addition, while Ms. Garrett was placed on a PIP by Ms. Carpenter, her co-worker, Ms. Sesny, who engaged in similar conduct, was not.  These inconsistencies, according to the court, were “evidence of pretext for the jury to consider.”

            The overall lesson this case teaches is that when tricky issues arise in the workplace that may implicate anti-discrimination laws, it is always best to proceed with the advice and assistance of legal counsel.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at or (248)530-6338.                                 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  September 2018

NLRB’s Proposed Rule for Joint Employer Relationships


By:  Claudia D. Orr

The National Labor Relations Board (“the Board”) is comprised of five members, appointed by the president, who serve for five years.  One member’s term expires each year. As the composition of the Board changes, so do some of its positions.  The Board’s position on “joint employers” has changed again, and this time employers can celebrate.

The concept of joint employers is important under the National Labor Relations Act (“NLRA”) and has real consequence to employers. In 2015, a divided Board in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), overruled long time precedent making it significantly easier to find a joint employment relationship. A petition for review was filed and, in December 2017, a new Board majority restored the prior more stringent standard.  But, this change was short lived. In February 2018, that decision was vacated, reverting back to the more relaxed standard for imposing a joint employment relationship. Currently, there is an appeal pending before the US Court of Appeals for the District of Columbia Circuit, challenging the Board’s authority in adopting the easier standard.

This makes a girl’s head spin.  But the dance is not over.  The Board now proposes to adopt the more stringent standard through rulemaking and issued its Notice of Proposed Rulemaking and Request for Comments concerning the Standard for Determining Joint-Employer Status on September 14, 2018.  

So what are the two standards?  Under the more stringent, traditional standard, there must be evidence that the putative joint employer actually exercised ‘“direct and immediate’ control over the essential working conditions of another company’s workers.” Under the Browning-Ferris majority’s relaxed standard, “a company could be deemed a joint employer even if its ‘control’ over the essential working conditions of another business’s employees was indirect, limited and routine, or contractually reserved but never exercised.”

Why does it matter?  When a joint-employer relationship is found, the Board can compel the putative “joint employer” to engage in good faith bargaining with the union that represents the employees who work for the other employer.  Also, both employers can be found jointly and severally liable for unfair labor practices regardless of who committed the act. Additionally, picketing may occur lawfully at the putative joint employer (whereas if it was not so deemed, the picketing would be unlawful). In short, which standard applies will matter to your company if it, although a non-union employer, is deemed a joint employer with all of the obligations of a union shop and the liabilities for the unfair labor practices of its joint employer.

After 27 pages of background and miscellaneous information, the Board’s notice sets out the new proposed rule as follows:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.  A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

Following the proposed rule are a dozen examples which include situations where employers hire contractors via business contracts, employers use temporary staffing agencies, companies supply line workers to manufacturers, franchisors and franchisees relationships etc. Comments on the proposed rule may be submitted to the Board on or before November 13, 2018.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at or at (313) 983-4863. For further information go to:   

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2018.


By: Carol G. Schley, Clark Hill PLC

            A recent decision from the federal Sixth Circuit Court of Appeals (which includes Michigan) is a reminder to employers that even small steps taken to reasonably accommodate an employee’s disability can avoid significant liability down the road.

            In E.E.O.C. v. Dolgencorp., LLC, Linda Atkins was a sales associate for a Dollar General store. During her employment, she received pay raises and a promotion to lead sales associate. Ms. Atkins had type II diabetes which required her to quickly consume glucose when she experienced low blood sugar in order to avoid seizing or passing out.  Because of her condition, Ms. Atkins asked her supervisor if she could keep orange juice at her cash register, but this request was denied.  Subsequently, she experienced two diabetic attacks while at work.  For each attack she consumed orange juice from the store’s cooler, and then reimbursed the store for the cost of the juice.

            In 2012, two managers investigated employee theft and “shrinkage” issues at the store.  When she was interviewed, Ms. Atkins informed the managers of the two circumstances where she suffered a diabetic attack and reimbursed the store for orange juice she consumed.  The managers informed Ms. Atkins that her conduct violated Dollar General’s “grazing policy” (which said employees could not consume store food before paying for it) and they fired her on the spot.

            Ms. Atkins filed a charge with the EEOC, which proceeded to file a lawsuit on her behalf asserting that Dollar General violated the Americans with Disabilities Act (“ADA”).  The jury found in favor of Ms. Atkins, awarding her $27,565 in back pay, $250,000 in compensatory damages, and $445,322 in attorney’s fees.  Dollar General appealed.

            On appeal, Dollar General argued that the jury erred in finding that it failed to accommodate Ms. Atkins’ disability.  On this issue, the court noted that Dollar General faced “a steep hill.”  First, Dollar General asserted that there were other ways that Ms. Atkins could have addressed her diabetic episodes (e.g., by consuming glucose tablets or eating honey, candy or peanut butter crackers) and, therefore, Dollar General had no obligation to allow her to keep orange juice at her register.  The court rejected this argument, finding that because Dollar General failed to fulfill its duty under the ADA to explore alternative reasonable accommodations with Ms. Atkins when she first asked to keep orange juice at her register, it could not now claim her disability could be accommodated in different ways.  “The store manager categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.  That was Dollar General’s problem, not Atkins’ – or at least a reasonable jury could conclude.”  Second, the court of appeals found that Ms. Atkins presented sufficient evidence at trial for the jury to conclude that the alternatives to orange juice proposed by Dollar General were not reasonable.

            The Court of Appeals also upheld the jury’s determination that Dollar General terminated Ms. Atkins because of her disability.  Dollar General claimed it had a non-discriminatory basis for terminating her, i.e., her violation of the “grazing policy.”  However, the court held that, “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him.”  The court held that Dollar General’s failure to provide any accommodation to Ms. Atkins presented direct evidence of discrimination in violation of the ADA.  “Atkins never would have had a reason to buy the store’s orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.”

            This case boils down to what appears to be no recognition by Dollar General’s managers that Ms. Atkins’ situation implicated the ADA.  Both the manager who rejected her request to keep orange juice at her register, and the two managers who fired her after she revealed she consumed orange juice from the store cooler, made no attempts to engage in the interactive process with her as required under the ADA.   Had Dollar General granted Ms. Atkins’ request to keep orange juice at her register, or granted her a reasonable exception to the “grazing policy,” it most likely would not have been found liable for over $700,000 in damages and attorney’s fees.  The takeaway is that an employer must have a clear and comprehensive written disability accommodation policy, and managers must be knowledgeable of the policy and thoroughly trained so that they can competently recognize, report and handle ADA issues that arise in the workplace.  Finally, it is important to engage legal counsel to assist with such issues to avoid potential mistakes and costly liability.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at or (248)530-6338.


Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  September 2018

Is There Any Value Left To The Tender Back Doctrine?


By: Claudia D. Orr

The United States Court of Appeals for the Sixth Circuit just ruled that the tender back doctrine does not apply to claims brought under Title VII or the Equal Pay Act. See McClellan v Midwest Machining, Inc.  What is the tender back rule and why does it matter so much?

The tender back rule is a legal concept related to release agreements.  For example, if you pay a former employee money (often severance at time of termination) in exchange for a release of all claims and she changes her mind and wants to sue, the former employee can, provided at or before the time of filing the lawsuit the former employee “tenders back” the money paid in consideration of the release.

I have used the tender back rule many times to obtain dismissal of lawsuits.  I have even had release agreements enforced by the court when the former employee failed to sign the agreement or wrote “refused” on the signature line but then kept the money that had been paid.  Ah, good times for a defense attorney. You can’t keep the money paid for the release and file suit without returning it.

So now that you know what the tender back rule is, let’s look at the case at issue. Plaintiff Jena McClellan began working for Defendant Midwest Machining, Inc. (“MMI”) in 2008. In August 2015, after McClellan announced she was pregnant, her supervisor allegedly began making negative comments and showed annoyance at her absences for prenatal appointments. Three months later, McClellan was fired.

At the termination meeting, McClellan was handed an agreement that provided severance in exchange for a release of all past, current and future claims. McClellan later testified she felt bullied at the meeting and pressured to sign when she did not have a clear understanding of which claims were being released.  McClellan signed the agreement and accepted the payments totalling $4000.

Three quick learning points:  First, you cannot release future claims, so that reference makes no sense to me. Second, the agreement should specifically mention state and federal civil rights laws so there is no confusion that they are within the scope of the release.  Third, never force the individual to make their decision at the meeting or the agreement may be set aside due to coercion or duress.  Always provide a couple of days and state the deadline in the agreement.

After releasing all claims, McClellan filed a charge with the Equal Employment Opportunity Commission and received her notice of right to sue. McClellan filed suit in the United States District Court for the Western District of Michigan, alleging MMI paid her less than male coworkers because of her sex (in violation of the Equal Pay Act) and that she was discharged because of her pregnancy (in violation of Title VII, as amended by the Pregnancy Discrimination Act). McClellan also alleged the same wrongdoing under Michigan’s Minimum Wage Law and the Elliott-Larsen Civil Rights Act.

Defense counsel for MMI advised McClellan’s attorney of the release agreement. In response, her attorney sent a letter “rescinding” the agreement and enclosing a check for $4000. MMI’s attorney mailed the check back and filed a motion to dismiss based on the release and failure to tender back the payment at or before the time suit was filed.

While the district court found there were genuine issues of material fact concerning whether McClellan “knowingly and voluntarily” signed the agreement, it nonetheless granted MMI’s motion to dismiss because McClellan had failed to tender back the consideration she had been paid.  On appeal, the Sixth Circuit reversed, concluding that “the tender-back doctrine does not apply to claims brought under Title VII and the Equal Pay Act…”

The appellate court first noted that the district court failed to recognize that the tender back rule is grounded in state contract law. Thus, agreements tainted by “mistake, duress, or even fraud are voidable at the option of the innocent party,” but “before the innocent party can elect avoidance, she must first tender back any benefits received under the contract.”  “If she fails to do so within a reasonable time after learning of her rights…she ratifies the contract and so makes it binding.”

The court reviewed its prior unpublished decisions addressing the tender back rule’s application to claims brought under other federal statutes and found that many of its unpublished decisions upheld the tender back rule. The only published opinion by the court held that the plaintiff was not required to tender back the consideration before pursing a claim under the Age Discrimination in Employment Act (“ADEA”).

That decision had relied upon the Supreme Court’s ruling in the context of the Federal Employers Liability Act. In addition, in 1998, a highly divided Supreme Court found the tender back rule inapplicable to claims brought under the ADEA in Oubre v Entergy Operations, in part because the release at issue failed to comply with the requirements for a valid release of ADEA claims.

After reviewing opinions from other circuits, the Sixth Circuit concluded that the tender back rule should not apply to claims under Title VII or the Equal Pay Act. Thus, as with the ADEA, any sums paid for the release “shall be deducted from any award determined to be due to the injured employee.” The appellate court also concluded that, even if applicable, McClellan attempted to tender back the $4000 and there is no requirement that it occur before filing suit, as long as it is returned “within a reasonable time after learning of her rights”.

The dissent found the tender back doctrine to be centuries old in the common law and applicable to claims under Title VII and the Equal Protection Act because Congress failed to specifically to over ride it and displace it when passing these laws. The dissent also distinguished releases of ADEA claims given the specific detailed requirements for such releases as required by the Older Worker Benefit Protection Act. The dissent (Judge Thapar) has become my new hero, but unfortunately his opinion is not the one that now is binding on us.

 So, we have long known there was an issue with the tender back rule when it came to claims under the Age Discrimination in Employment Act (“ADEA”).  But I had hoped that this quirk was because of the protections afforded to the older worker. Sorry, but as someone who is now in her early 60s, I find it offensive that Congress believed it necessary to provide those 40 and older with 21 days to think about whether to sign a release agreement (because apparently us “older” workers need that much time to understand what we are reading, if we can even find our readers during that 3 weeks) and then another 7 days to revoke it (so that when our kids see what we have signed and say “hell no” there is still a chance to get us out of the agreement) and a warning that “you should see an attorney before you sign this”! Sorry, I digress. Seriously, I just thought (or lived under the delusion) that the inapplicability of the tender back rule to ADEA claims was more protectionism afforded us “seniors”.

So, knowing that a release of claims under the ADEA had to tell the former employee to see a lawyer before they sign it (and no good ever comes of that), I would often suggest to clients that we not add all of the bells and whistles to have a valid ADEA release if the amount of consideration was relatively small and the strength of such a claim relatively weak.

After all, what are you really buying if the former employee can still sue, use the severance you paid to fund the lawsuit and, after defending against the claims for a couple of years, the court may consider offsetting the amount against a judgement.  When you consider that most lawsuits are either dismissed or settled, is the previously paid amount truly offset against the settlement?  The plaintiff just demands more and the employer tries to offer less and it all gets lost in the negotiation. So, again I ask, what are you buying if you don’t get the freedom from suit? This is a game changer. Always work with an experienced employment attorney, such as the author, when you are determining whether to offer an employee severance, in exchange for a release.

 This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at or at (313) 983-4863. For further information go to:  

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2018.


By: Claudia D. Orr

Under federal law, retaliation claims are more dangerous than discrimination claims because of the differences in proofs.  But, because retaliation claims “arise” following the exercise of rights (generally by the employee, but not necessarily so), there is usually an opportunity to work with experienced employment attorneys to avoid such claims. In the published opinion of Rogers v Henry Ford Health System, the federal Court of Appeals for the Sixth Circuit reinstated a retaliation claim that may have been avoidable with better strategy, testimony and documentation.  Let’s look at what went wrong.

The Plaintiff, Monica Rogers, has been employed by the Henry Ford Health System (“HFHS”) for over 30 years, mostly in the Human Resources Department.  She is African American and, at the time the lawsuit was filed, she was in her sixties. In 2007, Rogers became a Consultant in the Organizational Human Resources Development (“OHRD”) Department. The OHRD Consultant was a newly created position requiring a bachelor’s degree, but HFHS waived this requirement for her.  As I often tell my clients, no good deed ever goes unpunished…

Between 2008 and 2013, Rogers received mixed performance reviews from three different direct supervisors. While there was some positive feedback, there was considerable criticism concerning interpersonal problems (e.g., more focused on what other employees are doing than on her job, initiating harmful gossip, inciting negativity in workforce, etc.). Given her affect on the team, Rogers was referred to the Employee Assistance Program as part of a formal disciplinary action.

In 2012, two Senior OHRD Consultants left but were not replaced. Rogers began preforming some of their duties and, by the end of 2012, Rogers began asking for a reclassification to Senior OHRD Consultant. This position requires a Master’s Degree, which Rogers does not have. Recall she does not even have her bachelor’s degree.  Rogers thought the requirement should be waived again. When it was not, Rogers filed an internal complaint of race/age discrimination. On July 3, 2013, a month after Roger’s internal complaint was found to lack merit, Rogers initiated a charge alleging discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”).

In August and September 2013, several coworkers began to express concerns about Roger’s behavior indicating she was acting euphoric, laughing really loud, swaying back and forth, touching a coworker with both hands during a meeting and other strange and erratic behavior.  One coworker expressed concern because he was aware that Rogers had taken a bat to the car windows of her husband’s mistress’s vehicle.

Based on the reports, the Vice President of Human Resources (“VP of HR”) met with Rogers, placed her on paid leave, and referred her to the EAP for a fitness for duty examination. Rogers met with an HFHS physician for the examination, who cleared her to return to work.  According to Rogers, the physician “said to her ‘I don’t know why they sent you down here’ and apologized.” It escapes me why an employer would ever use one of its own physicians for this purpose.  Always consult with your employment attorney before taking any action that implicates the Americans with Disabilities Act because it is a very complicated law and requires high level analysis and strategy.  At this point, Rogers filed her second EEOC charge claiming retaliation for having previously filed her earlier charge.

A week after returning to work, the VP of HR again met with Rogers to provide her with career options. According to Rogers, she was told she could take a severance package or she could accept a transfer to HFHS’s subsidiary Health Alliance Plan (“HAP”) where she would work in Human Resources as a Business Partner.  According to the VP of HR, she was provided a third option: remaining in her current OHRD Consultant position.

Apparently, the “three” choices were not well documented in any writing that Rogers signed, or this issue would not have been in dispute. Document, document, document!  Rogers should have been given a memo that made it clear that she could remain in her current position, but that she was being offered an exciting new opportunity at HAP that was hers if she was interested.  And, in my opinion, suggesting to an employee who has two pending EEOC charges that she should consider going away for some severance is a horrible idea because it shows you don’t want her there and are willing to pay her to go away.  If you are willing to pay the employee/charging party some severance, it should be through the EEOC’s mediation process and in settlement of the charges.

There is one further unfortunate bit of evidence. The VP of HR testified that “he gave Rogers the option of transferring to HAP because: ‘that way it would not put her right in the same area … you know, because we knew that at that point that she had an outstanding EEOC complaint and we just thought that that would give her kind of some space from all of that.’”  Not good.  The testimony tied the transfer to the pending EEOC charges.

While Rogers took the transfer at the same pay and has received pay increases since, she testified that her opportunities at HAP are more limited and it is an inferior position within the HFHS structure. She remains employed there today in HR.

After the EEOC found probable cause that Rogers was placed on administrative leave and reassigned in retaliation for having filed her previous charge, Rogers filed suit. The federal district court granted the summary judgment motion filed by HFHS, dismissing Rogers’ complaint and finding that she had failed to make out a case of discrimination or retaliation. Rogers timely appealed.

The dismissal of the discrimination claims was affirmed. There is no need to run through the Sixth Circuit’s analysis, but suffice it to say that Rogers was unable to show that she was qualified for the Senior OHRD Consultant position she sought (which required a Master’s Degree) or that HFHS had treated anyone similarly situated more favorably.

In reversing the dismissal of the retaliation claim, the Sixth Circuit noted that, unlike discrimination claims which require a materially adverse employment action, in the context of a retaliation claim, the plaintiff only needs to show that the challenged action ‘“well might have dissuaded a reasonable worker from making or supporting a charge of discrimination’. This showing is less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.”

The court found that a “reasonable factfinder could conclude that Rogers suffered materially adverse actions” when “Rogers was referred to a fitness-for-duty exam, placed on leave…offered a choice about her future employment with HFHS”.  Moreover, HFHS failed to rebut Rogers’ assertion that her position at HAP was inferior to her OHRD Consultant position. Since, the cumulative effect could dissuade a reasonable employee from filing a charge of discrimination, an adverse action was established. Rogers only had to show a causal connection between the adverse actions and the filing of her first charge.  The court found the approximate two month temporal proximity between the two events satisfied this element.

HFHS stated a legitimate non-retaliatory reason for sending Rogers for the fitness-for-duty exam, which Rogers was unable to show to be pretext (complaints about her bizarre behavior). However, after these concerns were addressed, and HFHS’s own doctor cleared Rogers to return to work, the court found there was no basis to present her with career choices. And, the testimony of the VP of HR tying those choices to the EEOC charges sealed the reversal and reinstatement of the retaliation claim. There is a short dissenting opinion, but the retaliation claim is reinstated. Incidentally, the EEOC filed an amicus brief on appeal, weighing in. So, we know this was an important case to it.

The circumstances above played out over a period of just a few months and are a perfect example of when an experienced employment attorney, such as the author, should be consulted. When you see the claims headed your way, step out of the way and call for help.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at or at (313) 983-4863. For further information go to:   

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2018.

Michigan AG and Civil Rights Commission at odds over LGBT protections

By: Miriam L. Rosen 

There’s a battle brewing in Michigan…and this time it isn’t over college football.

In May 2018, the Michigan Civil Rights Commission (“MCRC”) issued a statement re-interpreting the Elliott-Larsen Civil Rights Act, the state civil rights law, to cover discrimination based on sexual orientation and gender identity.  The MCRC took this action knowing that the state Attorney General disagreed with that position. Claudia Orr discussed this development in her post, Recent Developments Related to LGBTQ Rights, in the June 13, 2018 Detroit SHRM Digest.

On July 20, 2018, Attorney General Bill Schuette, who is currently running for governor, fired back at the MCRC in an Attorney General Opinion Letter (“AG Opinion”) stating that Michigan’s civil rights law does not  protect LGBT workers from discrimination based on their sexual orientation or gender identity.

The AG Opinion asserts that the MCRC did not have the authority to expand the law “because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan courts.” According to the AG Opinion,  “[t]he word ‘sex’ was understood in 1976, when [state civil rights law] was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identify. “

The MCRC is not backing down, however.  In statement released on July 23, 2018, the  MCRC indicated that it would continue to follow its interpretive statement that the word “sex” in Michigan’s civil rights law protects lesbian, gay, bisexual, and transgender workers.  The MCRC’s position is that as “an independent, constitutionally created and established body,” it “is not bound by the opinion of the Attorney General.”

Where does this leave employers in Michigan? 

For employers with 15 or more employees covered by Title VII of the Civil Rights Act, the federal civil rights law, the EEOC has already taken the position that sexual orientation and gender identity are protected under that law.  But employers – both large and small – covered by Michigan’s Elliott-Larsen Civil Rights Act should understand that the MCRC will now accept and investigate claims of LGBT discrimination under state law.

One thing is certain…this dispute about which government entity has authority to interpret state civil rights law will be settled in court, not on the football field.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2018.

House of Representatives Introduces Bi-Partisan Anti-Workplace Harassment “EMPOWER Act”

By: Zeth D. Hearld

On July 17, 2018, a bipartisan group in the House of Representatives introduced new legislation in an effort to deter and reduce workplace harassment in light of the #MeToo movement. The proposed legislation, entitled the “Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting Act” or the “EMPOWER Act” includes public disclosure requirements for employers, bans the use of certain types of nondisclosure/non-disparagement agreements, and provides alternative options for reporting workplace harassment. The protections of the Empower Act would apply to job applicants and employees as well as independent contractors, interns, and volunteers.

Content of the Proposed Legislation

  • Employer Obligations

The EMPOWER Act would make it an unlawful employment practice for employers to:

…enter into a contract or agreement with an employee or applicant, as a condition of employment, promotion, compensation, benefits . . . or as a term, condition, or privilege of employment, if that contract or agreement contains a non-disparagement or nondisclosure clause that covers workplace harassment…

In other words, the legislation would ban nondisclosure clauses in applications or employment contracts that cover sexual harassment or retaliation against employees for “reporting, resisting, opposing, or assisting in the investigation of workplace harassment.” However, the legislation would not apply to nondisclosure agreements that are included in separation agreements if the legal claims arose prior to the execution of the settlement agreement.

Notably, the Act would also create new reporting requirements for certain public companies related to workplace harassment settlements and judgments. The Act would require any employer that files a Form 10-K with the SEC to report the number of sexual harassment claims settled annually. Significantly, the Act would also require these employers to report whether any “judgments or awards (including through arbitration or administrative proceedings)” was entered against the company as well as the amount paid of the judgment, whether in whole or in part.

The Act would also prevent employers from receiving tax deductions for payments made due to harassment judgments or for attorneys’ fees related to workplace harassment litigation.

  • Employee Reporting Options

The Act would create a new “tip-line” with the EEOC that would allow employees to confidentially report workplace harassment, sexual harassment, and sexual assault. The EEOC would operate the tip-line in addition to the agency’s standard, formal complaint process. Although confidential, the tip-line would not be anonymous. In addition, the operators of the tip-line would be required to educate callers on additional methods of reporting, including filing a formal charge with the EEOC. The EMPOWER Act would not change the EEOC’s current investigatory powers. Employees would still have the ability to file sexual harassment and retaliation charges with the EEOC regardless of use the new tip-line.

  • EEOC Training

The Act also would require the EEOC to “provide for the development and dissemination of work-place training programs and information” regarding workplace harassment and sexual harassment. The new training would cover actions that constitute workplace harassment, the rights of individuals and how to report harassment, how bystanders can intervene or report witnessed harassment in the workplace, and methods of prevention for employers and managers.


The EMPOWER Act is a direct reaction to the #MeToo movement.  Notably, reporting on the Harvey Weinstein scandal and the subsequent flood of revelations demonstrated how some employers have used nondisclosure and nondisparagement agreements to conceal inappropriate behaviors. These legal limitations prevented employees from speaking out and allowed hostile work environments to fly under the radar for extend periods. The Act mirrors several state laws that have banned nondisclosure agreements, such as California, New Jersey, New York, Pennsylvania, and Washington.

Employers should monitor the progress of the EMPOWER Act.  While it not clear whether the proposed legislation will pass, it does have bipartisan support as well as the support of the general public.  Similar bipartisan legislation was proposed in the Senate in June, but it has not had any traction and will likely be delayed due to the U.S. Supreme Court nomination process.

This article was written by Zeth D. Hearld, who is an employment attorney with Kitch Drutchas Wagner Valitutti & Sherbrook. He can be reached at or at (313) 965-7846.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2018.