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Money v rights: Civil Rights Commission challenge



By Stacy Gittleman


The Michigan Civil Rights Department is approaching a crossroad that will determine its success or failure to address complaints about its ability to handle the mounting number of cases that appear to take longer than expected.to resolve unlike when it was first established nearly 60 years ago.


It was in 1962 when delegates of the Michigan Constitutional Convention proposed the creation of the Michigan Civil Rights Commission (MCRC), dedicated to safeguarding civil rights for the state’s most vulnerable populations. The framers of the MCRC viewed its role as so essential to state government that it was enshrined into the new Michigan State Constitution.


Voters approved the proposal the following year. By 1964, Michigan became the first state in the country to create such a commission dedicated to upholding civil rights. Its main mission was to become a government body to provide Michiganders a way to pursue reparations for civil rights violations committed against them outside the judicial system without the need for retaining an attorney. The Michigan Department of Civil Rights (MDCR) was established in 1965 to carry out the work of the commission. The passage of the Elliott-Larsen Civil Rights Act (ELCRA) and the Persons with Disabilities Civil Rights Act in 1976 further clarified the specific protections guaranteed under Michigan law.


But is the MDCR, as it stands today, robust enough to efficiently and nimbly fulfill the ambitions of the Elliott-Larsen Civil Rights Act and other laws, bringing justice to the thousands in the state who have filed complaints in recent years?


Currently, it seems like it is neither efficient nor nimble enough to meet the needs of those it is tasked with representing. But many working with the agency are hopeful that those needing remediation will see changes, due to a state audit which exposed massive flaws, as well as more funding in the next budget year.


In August 2023, the Michigan Office of the Auditor General released a stark study of the department. The audit had six major findings that show how the department has failed to process and investigate claims according to its benchmark of six months, properly assign a claimant to an investigator or respond to an appeal for a rejected claim, failed to develop a process to document and collect emailed complaints, failed to develop a process to document verbal intake interviews, and failed to remove access to the department’s information technology system for civil servants no longer employed with the department.


The audit examined 18 months of complaints from January 2021 through June 2022. During this time, MDCR completed 2,096 complaint investigations and had 2,405 ongoing investigations. The department completed eight percent of its cases within the allowable six-month timeframe, or 180 days. Another eight percent of the investigations completed during that time frame had taken more than three years.



According to the audit, in one sampling of 39 cases, the department failed to contact a complainant for an initial interview in five of those cases for between 141 to 529 days. It is the department’s goal to contact each person who submits a claim within five days – but the average wait in those 39 cases was 19 days.


The audit also found the department lacked a needed review by management for some of its assignment and denial decisions at the front end of the complaint process. Of the 54 complaints sampled, 17 assignment decisions, or 31 percent, lacked management approval; 15 of those 17 were denials.


In five investigations, MDCR investigators did not attempt to contact the claimant for an initial interview between 141 and 529 days after being assigned the complaint. For the remaining 34 sampled investigations, MDCR investigators attempted initial contact with the claimant, on average, in 19 days. MDCR policy establishes a five-day goal for this step in the claims intake process.


In 17 investigations, long periods lapsed with no evidence that MDCR staff were actively investigating the complaint. These lapses in communication ranged from two to 17 months.

According to the audit, nearly 85 percent of ongoing investigations of alleged civil rights violations had been open for more than six months. The department sets a six-month goal of completing investigations for claimants, but for the majority, their cases were open for 18 months after initially filing. This means that fulfilling any closure on alleged civil rights violations through the department was not possible for most claims.


According to interviews, a large part of the department’s failures lies in the fact that for decades it has been chronically underfunded. Observers of the department’s activities are cautiously optimistic that a bump in money in the fiscal year 2024 state budget may mean new hope for thousands of Michiganders waiting to have their civil rights claims investigated.


The person who requested this audit was none other than Michigan Department of Civil Rights Executive Director John Johnson Jr., a member of Gov. Gretchen Whitmer’s cabinet. Appointed in 2021, Johnson oversees a current FY 2023 budget of $14 million, with offices in Lansing, Grand Rapids, and Detroit.

 

“I requested first a preliminary audit and then a full audit when I came to the job,” Johnson said, pointing to his 40 years of managerial experience at posts such as United Auto Workers Legal Services Plans and Wayne County Legal Services. “Any good manager must know what you're dealing with to be effective.”

 

First, he tackled the most glaring problem: how incoming complaints are documented, managed and supervised. He combined what were once two separate working groups of civil rights attorneys and investigators so the attorneys could serve as direct overseers to create better communication and to more quickly determine which complaints qualify for a full investigation. That division, currently staffed with 36 investigators, is run by Marcelino Trevino, who has worked as a reconsideration attorney for the MDCR for 13 years.


According to the 2023 annual report by the Michigan Civil Rights Commission, in FY 2022 the department’s Enforcement Division closed 1,299 complaints of discrimination and secured $566,162.58 in settlements for claimants. In 2022, the majority of complaints MDCR received were in the area of employment (49.6 percent), followed by public accommodation/public service (23.4 percent), housing (17.3 percent), education (5.4 percent), and law enforcement (4.3 percent).


In comparison, in FY 2021 the MDCR closed 1,374 complaints and secured $1,669,048 in settlements.


Johnson said investigators come from a variety of backgrounds. Many have held previous positions in other areas of state government, such as the Department of Health and Human Services or Child Protective Services. New investigators begin their job with intensive training on the Elliott-Larsen Act. With attorneys and investigators now joined in one division the attorneys are in more direct contact and communication with investigators and they are expected to provide investigators with legal guidance related to the complaints they are investigating.


Depending on their experience, Johnson said an investigator can handle between 85 and 100 cases per year. Johnson said he does not have statistics on how many cases each investigator closes per year.

 

To increase the workforce from 29 to 36 investigators, Johnson said he accomplished this by receiving a one-time infusion of $3.1 million for FY 2023. For 2024, the MDCR will receive an additional $8.8 million in the budget for ongoing money which will allow for the hiring of more permanent employees. By the end of 2024, he expects to have about 55 full-time investigators working on cases.


For a complaint to qualify for an investigation, Johnson said a case of alleged discrimination must fall within the parameters of race, religion, color, national origin, age, sex, disability, genetic information, marital status, familial status, height, weight and arrest record. Claimants may face discrimination in employment, education, housing, public accommodation, public service or law enforcement.


What disqualifies a complaint from being investigated? Johnson said it is a matter of timelines and time-bound jurisdictions. For a complaint to be considered for investigation, it needs to be filed with the MDCR within 180 days of an incident, as outlined within the Elliott-Larsen Act. Other complaints, if they center on employment discrimination, can be filed up to 300 days with the Equal Employment Opportunities Commission (EEOC). If an investigator feels that an employment discrimination-related complaint has expired after the allowable 180 days, Johnson said the person, with the assistance of the MDCR, can have their complaint transferred to the EEOC.

 

"Another reason why the intake of complaints has increased is that in the past, to file a complaint, a person had to get that complaint notarized,” Johnson said. “But now, people can file their complaint online or over the phone, so that barrier has been removed this year. For us, this is sort of sort of a self-inflicted wound but necessary to be able to really accommodate the public and take away a tremendous barrier to people being able to file a complaint.”

 

In another boost to the potency of the department, Johnson said that there is now more money in the budget for mediation, although the department could not define an exact amount. “With this funding, we are going to move more cases through mediation rather than investigation,” said Johnson. “We are always striving for reconciliation between parties, to get them together and get a matter resolved. This helps us avoid a long-drawn-out investigation and can produce quicker results.”

 

Johnson is hopeful about the increased budget for the department for the next fiscal year. The FY 2024 budget was passed to continue $5.7 million in funding for the department's complaint investigation and enforcement arm so it can reduce the backlog of discrimination cases and complete investigations promptly.

 

The approved FY 2024 budget also includes an ongoing $1.6 million to address complaints that occur when policies, practices, rules or other systems result in a disproportionate impact against jurisdictional protected bases. The budget increase also enables the department to hire additional higher-level special investigators to handle more complicated cases that will require more time to investigate.


“The way that the department has been chronically underfunded, we absolutely could not keep up with the backlog of cases,” Johnson said. “We have been trying to operate at a budget that stagnated at (an average of) $14.9 million. And meanwhile, inflation has ravaged that budget with the costs of everything from employee salaries to operations continuing to rise. We have been allocated the smallest budget in the state, but it is mandated in the state constitution for us to take in complaints from across the state no matter who they come from, and wherever they come under all those protected classes, and all those issues in which we wish people have been separate from discrimination. And we can't turn the tap off.”


Johnson recalled his years working at UAW Legal Aid and fielding complaints from auto workers. There came a point that the volume of intake calls was so great, that periodically, they would have to put a cap on them.


“At those places, when we were so flooded with complaints, we would have to say we are shutting down for a week or two until we could regroup and get reoriented,” explained Johnson. “But at the Civil Rights Department, we just can’t do that here. As a result, our intake staff has had to weather a large amount of complaints that has only mushroomed in recent years, especially since the end of the pandemic. Monthly complaints in the past two years have increased from 500 to 634.”


Johnson said that as the pandemic has waned, the outreach and education arm of the department has visited vulnerable communities to hold educational summits on civil rights in addition to the Conference against Hate held last September. These outreach efforts have also attributed to an increase in complaints once people understand their rights. The department is also reaching thousands more people through programs on intersectionality as well as a conference emphasizing how discrimination, especially housing discrimination, negatively impacts one’s health.


“We consider housing discrimination a healthcare issue,” Johnson said. “Access to fair, affordable housing is crucial to the well-being of every vulnerable sector in the population, from people of color to those in the LGBTQ community, and will be a major focus for us in the months to come.”


Another community public hearing initiative, which kicked off in November in Detroit, will give voice to those who have experienced discrimination in buying, renting or obtaining financing to purchase a home. Subsequent public hearings on the topic will be held in February, March, and April 2024, across the state leading up to the June 12 Civil Rights Summit on Housing in Detroit.


In its most recent high-profile case, the MDCR in 2022 investigated the Grand Rapids Police Department (GRPD) on four formal charges of discrimination, more than the department has ever filed against an individual law enforcement agency.


MDCR’s investigation found that the GRPD unlawfully discriminated against the claimants, which included a woman and her minor daughter, by treating them unequally based on race during a traffic stop for an expired license plate, pointing weapons at an 11-year-old Black girl as she exited a house and placed her in handcuffs in a police cruiser, and in another incident from 2018, officers of the GRPD held three 11-year-old boys at gunpoint when they responded to a 911 call that the boys were armed with weapons. The boys, who were compliant with the officers, were walking with what appeared to be a toy gun. Despite their compliance, the boys were held at gunpoint by multiple officers, including one using a high-powered rifle. They were searched, handcuffed and questioned for approximately 20 minutes before being released to a grandparent who was called to the scene by a concerned witness.


As of December 2022, in addition to the four complaints that have led to formal charges, MDCR is investigating another 23 complaints of discrimination against the GRPD.


In other areas of funding, in 2023, Gov. Whitmer gave the department a one-time appropriation of $500 million to investigate Michigan’s under-reported history around indigenous boarding schools. The findings of a statewide study of Native American boarding schools in Michigan will be released in a report by the MDCR by January 30, 2024.


This influx of funding for the MDCR did not come without a fight.


In April 2023, The Civil Rights Litigation Initiative at the University of Michigan Law School released a jointly signed letter with several civil rights organizations, including the NAACP, the ACLU and Arab American Civil Rights to the Michigan House Appropriations Committee as state legislators worked to finalize the FY 2024 budget. The letter underlined the details of just how much the MDCR had been chronically underfunded, how this is a violation of the state’s Constitution, and how this underfunding curtails the pursuit of justice.


The letter put a special emphasis on housing, employment, and education discrimination. The letter stated: “Since 2015, the Department’s annual appropriation–excluding one-time appropriations – have fallen 18 percent when adjusted for inflation, despite a 22 percent increase in annual complaints through FY 2022. Thus, due to inadequate funding, the MDCR is unable to effectively investigate civil rights complaints, resulting in an ongoing backlog of housing, employment, law enforcement, public accommodation, and education cases.”


It continued: “To be sure, these deficiencies do not reflect a failure of the MDCR, its leadership, or its hard-working staff, but a failure of the Michigan legislature to fulfill its constitutional obligations.”


“We placed the blame squarely on the legislature,” explained Michael Steinberg, director of the Civil Rights Litigation Initiative, which serves as a law clinic for law students to work on civil rights cases on behalf of vulnerable communities who could otherwise not afford legal services. In Ann Arbor, the work largely falls under housing discrimination cases. “The number of complaints or violations of civil rights against employers, landlords or other public accommodations has increased exponentially. Funding for the (MDCR) since (Gov. John Engler’s administration from 1991-2002) has fallen, especially when adjusted for inflation. We wanted to point out that the legislature was abdicating its responsibility to the Michigan Constitution. Our state constitution is unique because the Michigan Civil Rights Department and the Civil Rights Commission are constitutional entities.”


Steinberg emphasized that the drafters of the state constitution felt so strongly about civil rights that they codified it into the state constitution. They did not want a situation to arise where the legislature would fail to fund it through annual appropriations, therefore rendering it useless, he added.


Steinberg said the signatories of the letter were prepared to file a lawsuit against the state legislature if it did not fulfill its constitutional duties to properly fund the MDCR. However, there was a glimmer of hope with the infusion of $10 million into the department’s budget, Steinberg said.


"That's a significant increase. We hope that that will be enough to allow them to build its staff, to efficiently conduct investigations to bring the lawsuits and settlements to the people as it was designed to do. I have a lot of faith in John Johnson, but it's going to take some time because they're in such a hole. Hopefully, over the next year, we will see the department doing what it was created to do: to investigate and remedy violations of civil rights outside of the court system.”


In recent years Steinberg said the clinic has handled many housing discrimination cases. Under the Elliott-Larsen Act, housing cannot be denied to a person on a lease application based upon race, religion or ethnicity. Those who feel their housing rights have been violated can either retain a private attorney or file a complaint with the MDCR. But, Steinberg cautions, under the current backlog of cases, they may be waiting a while to have their case investigated. Also, those suspecting housing discrimination may find support within the language of local municipal housing ordinances. Such is a case that Steinberg’s department filed against an apartment complex in Ann Arbor.


“For example, Ann Arbor has an ordinance saying it is illegal to discriminate against tenants who can pay their rent with Section Eight vouchers,” explained Steinberg. “We are representing a client whose landlord refused to rent to them because this is how they were planning to pay rent, and that is illegal. So, we have brought the first private cause of action under that provision. We also are representing a single mother who wanted to move into an apartment complex with lots of student renters. The landlord turned down her application, reasoning that it would be an inappropriate housing arrangement for young children. That’s also illegal.”


The initiative also sends “testers” on apartment hunts. That means that White testers are sent to fill out an application to rent apartments at properties where a landlord is suspected of racial discrimination. They complete the application for the same apartment reporting identical incomes as the applicant of color.


“For some reason, those same apartments that were not available to potential renters of color suddenly became available. In that way, we uncover which landlords are violating a potential renter’s civil rights based on race.”


Racial discrimination also denies Black students the right to a safe equitable education. And in the fleeting years of high school, Steinberg said justice delayed is justice denied.


In 2020, Steinberg said the Civil Rights Initiative filed a complaint with the MDCR on behalf of a Black student, an aspiring dental assistant at Pioneer High School in Ann Arbor, under the charges that she and other Black students faced a racially hostile environment there.


“It had been three years after filing the complaint with the department and she already graduated. Three years have gone by, and the MDCR still has not finished their investigation. So, although this young woman is moving on with her life and wants to put her high school years behind her, there is still a potentially hostile environment going on towards Black students at Pioneer High School that has yet to be investigated.”


Peter Hammer is the director of the Damon J. Keith Center for Civil Rights at Wayne State University Law School. Hammer said over the decades, WSU Law School has had a constructive relationship with the MDCR and the MCRC. Hammer has appeared before the commission several times to give testimony or advice, including the Flint Water Crisis hearings. He described the hearings as one of the most authoritative legal assessments of the implications of the Flint Water Crisis and the emergency management that ensued.


After reviewing the audit, Hammer made two key observations. Most notably, he said it was glaringly obvious that the department has been “historically” underfunded.


“You cannot aggressively enforce civil rights if you're not willing to pay the cost,” said Hammer. “The department has had to scramble for a lot of grants, which means that it's often rushing to do things like fundraising, which is not part of its core mission. The department cannot be fixed until the state legislature and the governor appropriates more funds.”


Secondly, Hammer said the department is woefully lacking in efficient administrative practices.


“They've gotten pretty slack in a lot of their administrative processes,” Hammer said. “There seems to be the need for some important cleaning up, including professionalizing and streamlining its investigative systems, including some basic protocol, like who has access to what information, how information is retained and documented and reported.”


Hammer admitted that he has never gone through the hoops of filing a claim with the department so he never personally experienced the snags as others have. But on hearing that some who requested to see the vetting process of what qualifies as a valid complaint were required to file a Freedom of Information Act (FOIA) document, Hammer said as a government and public entity, transparency is essential.


“Just as a matter of principle, people who make complaints should be treated well and should have contemporary knowledge of the status of that complaint and should have their questions answered,” he said. “I would be sympathetic to the person who just wanted to have some transparency on the most basic processes such as: what kinds of things it investigates; how it processes a complaint; and what are the decision points and thresholds for a complaint to go to a more formal level of investigation.”


He continued: “I would ask: ‘What does the general public need to know, so Michigan citizens can make informed decisions about whether and how to proceed with filing a civil rights complaint?’”


When considering the latest trends in progress for civil rights, Hammer said that rights for the LGBT community have lagged for decades but are finally seeing some light.


On March 16, 2023, Gov. Gretchen Whitmer signed a bill that expanded the Elliott-Larsen Civil Rights Act to include sexual orientation, gender identity and gender expression.


“There was a time when we had a same-sex marriage ban here that was more aggressive than any other state. Now, we have made strides and progress with the ELCRA to address sexual orientation and gender identity,” Hammer noted.


To this, he gives great credit to the Michigan Chapter of the American Civil Liberties Union, of which Hammer said he has been a longtime member of its board. He also tips his hat to the ACLU for advancing voting rights in the state, especially in lieu of the most recent elections.


“In the last couple of election cycles, the voters of Michigan have stated their (voting access) preferences,” explained Hammer. “They want to make it easier to vote and protect voting rights. The current legislature is trying to make sure that all the necessary infrastructure is in place to make those rights actionable. In the last six years, there has been substantial progress. A lot of people outside the state are looking to Michigan as an example of how to protect democracy and get voter rights enshrined into the state Constitution. I think there's a lot of reasons why Michiganders should be proud of their current civil rights, enforcement, and protections.”


In private practice since 2018, Elizabeth Kahm Abdnour is an attorney whose expertise includes special education, school discipline, Title IX, civil rights, disability, employment, and sexual and domestic violence. Before opening her practice, she worked as a Title IX investigator at Michigan State University. Abdnour said she was suspended and ultimately fired for refusing to follow orders from a supervisor she believed acted unethically amid the scandal involving disgraced former Michigan State sports medicine doctor Larry Nassar.


Put to the question of whether or not the MDCR is falling down on the job in keeping up with the ambitions of the Elliott-Larsen Act, Abdnour put it succinctly.


“In a nutshell – yes. I think it’s absolutely correct in that the department is bombarded with complaints,” Abdnour said. “So, pertaining to the recent audit, I am not surprised about the statistic of the number of complaints that they receive that go uninvestigated. As an attorney, I get an intake of complaints of people wanting to sue someone because of what was said to them or posted about them on social media. On the MDCR website, there is a form where people can lodge a complaint so it does not surprise me that the department is getting flooded with complaints that their staff cannot keep up.”


Sharing her own anecdote about the department, Abdnour, observed that there are always job openings listed on the department’s website, and she once applied for a job there back in 2018.


“I am an experienced lawyer at this point,” Abdnour said. “I had just finished three years of working as a Title IX investigator at Michigan State University, so I was highly qualified. I went in for an interview and they gave me some weird tests to take online. And then, I never heard from them again. I am assuming I did not get the job, but they keep posting openings for the same position. So just from there, you can see that that hiring process is extremely unorganized.”


Renowned as one of the country’s leading civil rights attorneys, Deborah Gordon’s career arc has followed the MDCR from its earliest years. She began clerking for former Attorney General Frank Joseph Kelley in 1973 as one of the few women in her law school graduating class at the University of Detroit-Mercy. Now, her Bloomfield Hills-based firm is rated one of the best civil rights firms in the country by U.S. News & World Report. She and her staff have won millions for their clients.


When she started practicing law, sexual harassment and sexual job discrimination had yet to be defined as illegal behavior. She remembers a time when job listings in the Detroit Free Press were segregated by gender. There were laws allowing for a man to take leave from his job if he had surgery yet none existed for covering pregnancy or maternity leave. Slowly, laws for equal pay, job discrimination based on sex, and laws against sexual harassment came on the scene.


“Civil rights in Michigan have really evolved since the earliest days when it was designed to allow women an equal opportunity to get a job,” Gordon said. “But very quickly, laws evolved and extended to cover pregnancy discrimination. Then, sexual harassment law moved to the forefront.”


As one of the few women attorneys practicing in the 1970s, Gordon said she did not get a sense that she was being discriminated in Kelley’s office or in private practice. But in court, she said it was tough to contest cases before an all-White, all-male bench. Gordon said, with determination, she kept “chugging along” as a female trial lawyer.


“Whether you were in Wayne County Circuit Court or federal court, it was an all-male, White bench with few exceptions,” recalled Gordon, “Over the years, I talked to many women lawyers who felt they were not given the same consideration in arguments by some of these judges. Now, though, I think more women are enrolled in law school than men.”


Gordon said as the decades have gone by, large corporations and organizations are very cognizant of race discrimination in the workplace, save for a few police departments and companies such as some auto dealerships that remain “bastions of male White employment.”


“In general, corporate America has long been put on trial for race discrimination,” Gordon said. “I still continually bring race discrimination cases to trial, but it's not as frequent as it was before. Similarly, I am not seeing as many gender discrimination cases on issues like failure to promote. This has all changed because corporate America seems very interested in embracing diversity and equity.”


What has remained a constant in her practice are the intake of sexual harassment cases.


“There’s a lot of men out there that think the memo (on not sexually harassing women in the workplace) never really applied to them. I continue to hear outrageous conduct happening in the workplace.”


Gordon said that many employees may not even know what their rights are when it comes to sexual harassment at work. It just may be some vague language buried in a human resources manual.


A high-profile win for Gordon was in 2003 for her client Lisa Kesner, a stewardess who was harassed by members of the Detroit Tigers while working during a flight on a private chartered jet in 2001. But not all sexual harassment cases are as obvious as the case of Kesner vs. Olympia Aviation and Ilitch Enterprises, where she was completely subjected to an inescapable “boys club” flight and subjected to overtly sexual conversations. Gordon obtained a $200,000 verdict for Kesner.


“The case against the Tigers was a classic example, but there are plenty of other examples in our day-to-day work world which blur the lines between what is personal time and what is work time, especially with the prevalence of cell phones,” Gordon explained. “Suppose a woman continually gets texts from her male supervisor. At 10 p.m., you get a text from him saying he is just texting to say ‘hello.’ Maybe it’s about work, but maybe it’s not. As a conscientious worker wanting to please one’s supervisor, do you accept texts like that from a supervisor late at night? The lines are completely blurred.”


She continued: “This is something that I'm seeing a lot. Sometimes sexual advancements in the workplace begin with a text. And then these casual texts lead to more invitations and overtures. And then women find themselves in an awkward position with their male supervisor and wonder ‘What do I do now? If I file a complaint with my human resources department, will it hurt me when it comes time for my annual review?'”


Echoing Gordon’s sentiments on the difficulty of successfully pursuing a sexual harassment lawsuit against an employer is A. Vince Colella, a civil rights attorney and founding partner at Moss & Colella in Southfield. He believes employment laws are set up to protect the employer and not the employee.


The first step in the process if one believes they were the target of sexual harassment is that the employee must first report a complaint with their employer.


“This is a prohibitive factor because most people do not want to lose their jobs,” said Colella. “Most people don't want to be viewed as a problem employee or someone who's being overly sensitive to things that others consider playful work banter.”


In other cases of employment discrimination cases, it can be a long wait to get a case heard and few are willing to risk losing their jobs or wait for justice while on unemployment.


“In terms of the MDCR, the department is slow to respond and investigate cases of discrimination at the workplace,” Colella explained. “It can take from six months to a year before an investigation begins and is completed. If an investigation is finally conducted, the (MDCR investigators) are not very thorough. Sometimes, a year or even 18 months can pass after an employment termination before a complainant receives their right-to-sue letter. At that point, they have lost time, money, and the path to litigation can be two to three years after that phase.”


One example of a case Colella is still pursuing is a pregnancy discrimination case that dates back to September 2021.


“The case had taken so long to get an investigation underway that I got the MDCR to put the case into mediation protocol. But the mediation was completely worthless. We sat around for another six months waiting for a right-to-sue letter. Between contacting the Department of Commerce and EEOC, I couldn't get a single person on the phone to tell me the status of the right-to-sue letter. I have emails and calls to both agencies for months and could not get a call back and could not get a letter.”


Colella recalled that 20 years ago, he could confidently hand a client’s case over to the MDCR and be assured of a thorough and thoroughly documented investigation. When that investigation was complete, an attorney could ask for not only the right-to-sue letter but copies of all the documents associated with the investigation.


He explained: “This is vital to attorneys who may want to further investigate a variety of cases from civil rights to personal injury. But now, with the backlog of cases, if an attorney files a case for a client employee against their employer, it leaves that attorney flying blind.


“To build a case this way, I'm relying solely upon the documents that my client has gathered, the statements that my client has made to me, and perhaps a rogue employee who's no longer (employed at the company in question),” he continued. “Without the backing investigation and access to all those documents and witnesses when filing through the Department of Civil Rights, without that government investigation, the employers hold all the cards from an evidentiary standpoint until you file your lawsuit. You are solely relying on the credibility of your client and the limited information they can provide. That’s where we as attorneys are hamstrung in employment discrimination cases.”


While he has reviewed the FY 2024 budget and the money that will be going to the MDCR, he is not encouraged that it can help much.


“Receiving $10 million in funding and allocating the hiring of a few dozen employees when they have a backlog of about 2,300 cases is sort of ridiculous,” said Colella. “And within those hires, I hope they are highly qualified and have law backgrounds to properly and thoroughly conduct investigations. If you are an investigator and are not steeped in civil rights law, you won’t even know what to look for during an investigation.”


When asked about delays in attaining right-to-sue letters, MDCR’s Johnson clarified that it is not the MDCR but the Equal Employment Opportunities Commission that issues letters to sue to complainants.

 

“The EEOC is the agency that issues letters that allow an individual the right to sue,” Johnson explained. “Our (response to those filing a complaint) is more of an administrative process. We respond not on behalf of (private) attorneys, but as prosecutors for the state of Michigan on behalf of the people. I know that there have been instances of people not getting timely responses for the complaints they have filed, and to that we have no excuse. As an attorney, I know that not responding is a main complaint that people have and I know how sensitive people can be.”


Another large area of cases for the MDCR comes from possible violations of the Americans with Disabilities Act.


State Senator Rosemary Bayer (D-West Bloomfield, Farmington Hills, Novi, Northville, Orchard Lake Village, Keego Harbor, Sylvan Lake, Commerce Township, Plymouth, Walled Lake), who sits on the budget appropriations committee for the Civil Rights Department, explained that her elderly and disabled constituents have been giving her eye-opening lessons about the accessibility barriers they face in the state.


Shortly after she was re-elected in 2023, she met some constituents in a senior community center. Surrounded by people in wheelchairs, she was told that something as simple as crossing the street can be a barrier to civil rights when curbs are not set low enough for a wheelchair to approach or crosswalk buttons are placed out of their reach. Bayer said the backlog in cases at the MDCR, and the inability for some to be able to afford their own lawyer, had many discouraged.


“People had just given up in trying to get anything accomplished (in terms of accessibility rights),” she said. “Abusers of civil rights have been emboldened because they figured they could get away with violations because there has been lackluster enforcement. We on the Appropriations Committee allocated significant funding to the MDCR to increase their staff to handle the backlog of cases. You cannot blame the staff who are already there, because there were just not enough people to do the work.”


Bayer continued: “Civil rights is about accessibility for people with disabilities and mobility issues, and accessibility is just atrocious in Michigan. That visit to the senior center really made me pay attention. And because it’s been so long since we have properly funded the MDCR, there has been little enforcement of laws protecting people with disabilities.”


At Affirmations, the state’s largest center and resource for LGBTQ+ rights and advocacy, there is hopefulness on the horizon now that the Elliot-Larsen Civil Rights Act includes protections for those with diverse sexual and gender identities combined with extra funding for the MDCR.


Affirmations Executive Director Dave Garcia said the self-imposed audit helped the department clarify where its weaknesses lurked.


“Between changes to Elliott-Larsen, the audit, and next year’s increased budget, I'm actually optimistic,” said Garcia. “For the first time in a long time, the MDCR is finally getting an investment so that they can hire more people for investigation, education and outreach. When you do more outreach, that's going to make the numbers (of cases) rise once people understand their rights. I can only speak for the queer community, who face lots of discrimination when trying to rent an apartment. But the more education that we have in how this process works, the better.”


Garcia added that Affirmations with the MDCR in the first quarter of 2024 is planning information sessions about housing and employment discrimination and how to file a complaint with the department.


Michigan has long had a reputation for being behind when it comes to LGBTQ+ rights. According to a 2019 study from the Williams Institute of Law at the University of California -Los Angeles, at the time, 311,000 LGBT adults and 61,000 LGBT youth were at risk of discrimination and harassment because the Elliott-Larsen Act lacked language protecting sexual and gender identity.


The study included data from other studies, including a 2015 U.S. Transgender Survey report that revealed 22 percent of transgender respondents from Michigan experienced harassment or mistreatment on the job in the past year, and 27 percent reported being fired, being denied a promotion, or not being hired for a job they applied for in the past year because of their gender identity or expression. In addition, one-quarter of respondents from Michigan said that they had experienced some form of housing discrimination in the past year, and nearly one-third of respondents said they had been discriminated against or harassed at a place of public accommodation in the past year.


“Affirmation’s responsibility is to educate our community about how to file civil rights complaints, and then we need to have the confidence that there will be follow up once they’ve been filed,” said Garcia. “When the department’s budget was consistently cut over the years, we understand that follow up is very difficult, and so I wasn't surprised to see the results of the audit, and nor was the current leadership at the department. It shows courage on their part.


“The MDCR has been a longtime ally of the queer community, even when we didn't have the protections under the state civil rights act,” Garcia said. “Obviously, many of us have been around a while and fighting to amend the Elliott-Larsen Act for 50 years. And so that's huge news for our community now that it's finally amended.”

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