DEPARTMENT OF CIVIL RIGHTS
CIVIL RIGHTS COMMISSION
ORGANIZATION, PRACTICE, AND PROCEDURE
Filed with the secretary of state on
These rules take effect immediately upon filing with the secretary of state unless adopted under section 33, 44, or 45a(9) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.233, 24.244, or 24.245a. Rules adopted under these sections become effective 7 days after filing with the secretary of state.
(By authority conferred on the civil rights commission by section 29 of article 5V of the state constitution of 1963 and section 601 of the Elliott-Larsen civil rights act, 1976 PA 453, MCL 37.26015 of Act No. 45 of the Public Acts of the Second Extra Session of 1963, being S37.5 of the Michigan Compiled Laws)
R 37.2, R 37.4, R 37.5, R. 37.6, R 37.7, R 37.10, R
37.11, R 37.12, and R 37.25 of the Michigan Administrative Code are
amended, and R 37.28, R 37.29, R 37.30, and R 37.31 are added of the Michigan Administrative Code are
amended, as follows:
R 37.2 Definitions.
Rule 2. As used in these rules:
(a) “Certified complaint” means a complaint of discrimination, drafted by department staff on an official complaint form that is prepared after a preliminary determination of jurisdiction, and has the claimant’s signature.
(b) "Chairperson" means the duly appointed or elected chairperson or a co-chairperson of thecivil rightscommission or, in the event of his or her or their absence, the acting chairperson designated by the remaining members of the commission.
(c) "Charge" means that document or pleading authorized by the departmentwhichthat initiates a contested case hearing under R 37.12.
(d) "Claimant" means any personwho files a complaint or applies to the department for the issuance of a charge.who makes a complaint of discrimination to the department.
(e) "Commission" means the state civil rights commission created byarticle 5, S29,section 29 of article V of theMichiganconstitution.
(f) "Commissioner" means any member of thecivil rightscommission.
(g) “Complaint” means a communication from the claimant to the department that alleges discrimination as set forth in R 37.4.
(h) "Constitution" means the state constitution of 1963of the state of Michigan.
(i) “Day” means a calendar day, including a Saturday, Sunday, and state holiday.
(j)
"Department" means the department of civil rights established by section
475 of the
Executive organization act of 1965, 1965 PA 380, MCL 16.575.Act No. 380 of the
Public Acts of 1965, as amended, being S16.575 of the Michigan Compiled Laws.
(k) "Department investigator" means a member, agent, or employee of the department designated or delegated by the director to conductmakean investigation.
(l) "Director" means the director of the departmentof civil rights engagedappointed by the commission.
(m) "Hearing commissioner" means a commissioner designated by the chairperson or the commission to conduct a hearing.
(n) "Hearing referee" means an agent of the commission designated or delegated by the chairperson or the director to conduct a hearing.
(o) "Party" or "parties" means the claimant or respondent, or both, and the commission or department, or both, where appropriate.
(p) "Person" means an individual, agent, association, corporation, joint apprenticeship committee, joint stock company, labor organization, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization,thethis state, or a political subdivision or agency ofthethis state,or an agency thereof,or anotherany otherlegal or commercial entity.
(q) "Respondent" means anyperson against whom the claimant has complained, or against whom the department has issued a charge.
(r) “Summary of complaint” means a document prepared by department staff following an intake interview that explains why a certified complaint was not taken and outlines the timeline to request a reconsideration of that decision.
R 37.4 Complaints.
Rule 4. (1) Anyperson claiming to be aggrieved by unlawful discrimination may personally, or throughby himself or herself or his or hercounsel or other agent, submit a complaint to the department.make, sign, and file with the department a complaint. Assistance in drafting and filing complaints shall be available, without charge, to claimants at all department offices.
(2) Anycommissioner,thedirector, or agent authorized by the commission or director, may initiate, make, sign, and file a complaint in the public’s interest.
(3) Assistance in drafting and filing a complaint must be available without charge at all department offices.
(4)(3)A certified complaintshallmust be in writing, dated, and include all of the following:the originalbeing signed and verified before a notary public or other person duly authorized by law to administer oaths and take acknowledgments. Notarial service shall be furnished without charge by the department.
(4) The complaint shall include the following:
(a) The full name and address of the claimant and his or her agent, if any.
(b) The full name and address of the respondent.
(c) The alleged discrimination and a detailed statementofdescribing it.the particulars thereof.
(d) The date,ordates, or range of dates of the alleged discrimination and whether the alleged discrimination is of a continuousingnature., and the dates between which the continuing discrimination is alleged to have occurred.
(e) The claimant’s signature.A statement as to any other proceeding, civil or criminal, based upon the same facts, occurrences, or transactions as alleged in the complaint, together with a statement as to the status or disposition of the other action. Where such a proceeding is pending, the commission or department may, in its discretion, delay consideration or action on the complaint filed.
(5) The complaintshallmust be filed with the department at 1 of its offices.
(6) The complaintshallmust be filed within 180 days afterfromthe date of theoccurrence of thealleged discrimination, or within 180 daysofafter the date whenthe occurrence ofthe alleged discrimination was or should have been discovered. If the alleged discrimination is of a continuousingnature, the dateof the occurrenceof the discrimination isshall be deemed to beany date aftersubsequent tothe commencement of the discrimination, up to and including the date upon which the discriminationshall haveceased.
(7) The complaint may be filed by personal delivery,or bymail, or electronic service, and addressed or emailed to 1 of the department's offices.
(8) Complaint forms may be obtained at any of the offices of the department.
(9) A copy of the complaint filed by the claimantshallmust be delivered or mailed to the respondent.
(10) The department may require answers to interrogatories, order the submission of books, papers, records, and other materials pertinent to a complaint, and require the attendance of witnesses, administer oaths, take testimony, and compel, through court authorization, compliance with its orders or an order of the commission.
(11) A complaint, or anypart of a complaintthereof, may only be withdrawn withonly onwritten consent of the commission or department uponsuchconditionsas shall bedeemedconsidered properinunder the circumstances.
R 37.5 ConciliationCconferenceand conciliation.
Rule 5. (1) The respondent may be invited, at any time, to participate in a conciliation conference in a final attempt to address andconciliation in an endeavor toeliminate the alleged discrimination.and shall be invited to participate in such a conference prior to the issuance of a charge.
(2) The members of the commission and the department staff shall not disclose what has transpiredin the course of such endeavorsat the conciliation conferenceand conciliation.
(3) If the conciliation conference is successful, the department shallsucceed in its endeavors at conference and conciliation, it shall mark the case accordingly andnotify the partiesby registered or certified mail, return receipt requested, of the terms of conciliation.of the resolution and close the case.
(4) If the conciliation conference fails, the department may do any of the following:
(a) Conduct additional investigation.
(b) Dismiss the certified complaint based on the investigation.
(c) Refer the case for final legal review with a recommendation for a charge and an administrative hearing.
R 37.6 Charge; issuance; refusal to issue.
Rule 6. (1) If, after investigation, the department determines that there are sufficient grounds therefor, a charge shall be issued.
(2) If the department determines that there are insufficient grounds to issue a chargetherefor, it shall refuse to issue a charge and shall notify the parties byregistered or certifiedmail,or electronic servicereturn receipt requested,of the determination andofthe refusal, together with the reasons for refusaltherefor, and of the claimant's right to request reconsideration by the department of the determination within 30 days afterfromthe date of mailing, in accordance with R 37.7.
R 37.7 Reconsideration of refusal to issue charge; request; hearing.
Rule 7. (1) A claimant may requestofthat the department reconsider a summary of complaint or refusal to issue a charge on a certified complainta reconsideration of its refusal to issue a charge. The requestshallmust be in writing, state specifically the grounds upon which it is based, and be filed within 30 days after the date of mailing of the notice of disposition of which reconsideration is requested. Itshallmust be filed at any office of the department by personal delivery or by mail.
(2) A reconsideration of a summary of complaint must review whether the request for reconsideration is timely filed and if the allegations are jurisdictional.
(3) Reconsideration of a closed or dismissed certified complaint must be filed within 30 days of closure or dismissal and must address the following 3 criteria:
(a) Whether an adequate investigation was conducted.
(b) Whether there is new probative evidence that may change the result of the investigation.
(c) Whether the determination was made in error.
(4)(2) The
department may authorize a hearing on the request for reconsideration at such
a time and place and before the suchhearing commissioner
or commissioners or hearing referee or referees as it or the director may determine,
and notice thereof shall must be given to all parties to
the proceedings by mail, electronic service, or delivery. The parties
may appear in person or by counsel, may present witnesses and testimony,
and examine and cross-examine witnesses. Verbatim stenographic notes of the
proceedings shallmust be made and maintained kept
by a competent reporter. The hearing commissioner or commissioners or hearing referee
or referees shall report to the commission on thesuch
proceedings. The commission shall make a determination as to determine
whether the department shall further consider the matter further,
and notify all parties by registered or certified mail, return receipt
requested, and shall issue instructions for appropriate action based
upon such determination.
R 37.10 Charge; service.
Rule 10. Copies of the charge or amended chargeshallmust be delivered by mail or electronic service or sent by certified or registered mail, return receipt requested, to the parties, together with notice to the respondent to answer the charge as provided in R 37.11.
R 37.11 Answer.
Rule 11. (1) The respondent shall file a written verified answer to the charge of discrimination within2021 days afterfromthe date of service of the charge.
(2) The answershallmust be filed in duplicate at any office of the department. The filingshallmust be by personal deliveryor registered or certifiedmail or electronic service, with proof of service., return receipt requested
(3) Upon request, the commission or director may, for good cause shown, extend the time within which the answer may be filed.
(4) The answershallmust be in writing,and the originalbeingmust be signed and verified by the respondent. The answershallmust contain thepost officeaddress of the respondent, and if he or she is represented by counsel, the name andpost officeaddress of counsel. The answershallmust contain a general or specific denial or admission or a denial of any knowledge or information sufficient to form a belief ofeach andevery allegation of the charge,or a denial of any knowledge or information sufficient to form a belief,and a statement of any matter constituting a defense. Anyallegation in the chargewhichthat is not denied or admitted in the answer, unless the respondentshallstates in the answer that he or she is without knowledge or information sufficient to form a belief,shall beisdeemedconsidered admitted.
(5) The respondentshall havehas the right, reasonably and fairly, to amend his or her answer. Both of the following apply to an amended answer:
(a) The respondent's right to amend his or her answer may be exercised at any time, without permission, up to 10 days before the first hearing., without permission, and thereafter,If the first hearing is in less than 10 days, the respondent may apply, andin the discretion ofthe hearing commissioneror commissioners,or hearing refereeor referees,may allow the respondent to amend his or her answeron application duly made therefor.
(b) Duplicate copies of an amended answershallmust be filed with the department.
(6) If an answer is not filed within the time provided for in these rules, each of the allegations in the chargeshall bearedeemedconsidered admitted. Upon application, the hearing commissioner or hearing referee, for good cause shown, may set aside the admission.
(7) The department, within57 days after the date offilingreceiving an answer or amended answer from the respondent, shall send a copy by mail or electronic service, with proof of service, tothereof by registered or certified mail, return receipt requested, to the claimantthe claimant’sat his or herlast known address of recordplace of residenceor tohis or herthe claimant’s counsel.
R 37.12 Hearing.
Rule 12. (1) Upon or after the issuance and service of a department-issued charge, the commission or director may schedule and summon the parties to a hearingthereon. The commission may, at any time, schedule and conduct a hearing with respect to any matterwhichthat in the judgment of the commission may involve unlawful discrimination and may warrant investigation by the commission, regardless of whether a charge oracomplaintthereforshall havehas been filed by or with the department.
(2) Notice of the time and place of the hearingshallmust be mailed, electronically served, or delivered to the parties not less than2021 days beforeprior tothe date of the hearing. Upon good cause shown, the commission or director may order a hearing upon shorter notice. However, notice of the time and place of a hearing upon shorter noticeshallmust be mailed, electronically served, or delivered to the parties not less than 7 days beforeprior tothe date of the hearing, unlesssuchnotice is waived by each party.
(3) A hearing mustshallbe conducted by 1 or more hearing commissioners, or 1 or more hearing referees, or any combination of hearing commissioners or hearing referees., whichThe hearing commissioners or hearing referees shall hear the evidence and reportthereonto the commission.
(4) Unless waived by the hearing commissioners or the hearing referees, the claimant shall be present at the hearing. The respondent may appear at the hearing in person or by counsel, examine and cross-examine witnesses and, if an answer has been filed, may submit oral testimony and other evidence in support of the answer.
(5) Subject to R 37.31, hearingsHearingsshallmust be held at a place designated by the commission or director having due regard for the convenience of the parties and witnesses.
(6) The case in support of the chargeshallmust be presented at the hearing by the department's counsel or by a member of the department's staff, or upon notice from the claimant, by the claimant or his or her counsel, subject, however,to the right of the department to presentother oradditional evidence or arguments.
(7) Hearing commissioners or hearing refereesshallhave full authority to control the procedure of the hearing,toadmit or exclude testimony or other evidence without regard to strict rules of evidence, andtorule upon all motions and objections,as follows:and may do any of the following:
(a)On their ownBy motion,or at the request of a party, the hearing commissioners or referees shallorder witnesses excluded so that they cannot hear the testimony of other witnesses. The hearing commissioners or hearing referees shall not exclude a party, an individual designated by a party as its representative, or a person whose presence is shown by a party to be essential to the party's presentation of his or her position.
(b)Hearing commissioners or referees may examineExaminewitnesses and direct the production of papers or other evidence.
(c) Hear oral testimony. Oral testimonyshallmust be given under oath or affirmation and verbatim stenographic notes of the hearingshallmust be made and maintainedkeptby a competent reporter. Transcriptsshallmust be maintainedkeptand, beforeprior tothe issuance of a final order,shallbe available to the hearing commissionersandor hearing referees.;pParties may obtain transcripts by makingsuitablearrangements with the reporters, and the departmentshall not beis not responsible for providing transcripts to the parties before theprior toissuance of final orders.
(8)(d)WhereIf hearings are conducted by 3 or more commissioners or referees, all rulings and determinationsshall beare made by majority rule.
(9)(e)Evidence of the department's endeavors at conciliationshallis notbeadmissible at the hearing.
(10)(8)Hearing commissioners or hearing referees or a party may request a prehearing conferencewhichthat the hearing commissioner or hearing referee may schedule, subject to objection by any party.SuchA prehearing conference may be held to obtain admissions, stipulations as to fact and law, agreement on the issues, and to determine the authenticity of documents. A prehearing conference may be held in-person, by telephone, videoconference, or other electronic means. Written stipulations may be introduced in evidence if signed by each person sought to be boundthereby, or by his or her counsel. Oral stipulations may be made on the record at open hearing.
(11)(9)Hearing commissioners or hearing referees may continue a hearing from day to day or adjourn it to a later date or to a different place by an announcementthereofat the hearing or by appropriate notice to all parties.
(12)(10)Hearing commissioners or hearing referees shall allowpermitthe partiesor, their counsel, or the member of the department's staff presenting the case in support of the charge, and may allowpermitinterveners, to argue orally before them and to file briefs within thesuchtime limitsasthe hearing commissioners or hearing refereesmaydetermine.
(13)(11)Hearing commissioners or hearing referees may exclude any person who engages in improper conduct before them from the hearing room or from further participation in the proceedingany person who engages in improper conduct before them, except a party, his or her counsel, or a witness engaged in testifying, each of whomshall beare subject to appropriate disciplinary action by the commission.
(14)(12)Hearingsshallmust be open to the public, unless the hearing commissionerscommissionorrefereeshallotherwisehearing referees determine otherwise.
(15)(13)Any motion filed by a party aftersubsequent tothe issuance of a charge and before theprior tohearingshallmust be referred to the hearing commissioners or hearing referees for decision. The hearing commissioners or hearing referees may request briefsorand schedule oral arguments,or both,as theydeemconsider necessary, and, where appropriate, they may reserve their ruling until the conclusion of the hearing. All rulings upon motionsshallmust be included in the report of the hearing commissioners or hearing referees to the commission.
(16)(14)A party may submit, or the hearing commissioners or hearing referees may request, proposed findings of fact, proposed conclusions of law, and proposed orders at the conclusion of the hearing. Allsuchproposalsshallmust be submitted to the commission with the report of the hearing commissioners or hearing referees.
R 37.25 Exemption from particular section of act; bona fide occupational qualification.
(BFOQ).
Rule 25. (1) A person subject to article 2 of the Elliott-Larsen civil rights act, 1976 PA 453, MCL 37.2201 to 37.2211,Act No. 453 of the Public Acts of 1976, being S37.2201 et seq. of the Michigan Compiled Laws,may apply to the commission for exemption from particular sections of article 2 of the Elliott-Larsen civil rights act, 1976 PA 453, MCL 37.2201 to 37.2211,Act No. 453 of the Public Acts of 1976, being S37.2201 et seq. of the Michigan Compiled Laws,on the basis that religion, national origin, age, height, weight, or sex is a bona fide occupational qualification (BFOQ). An applicationmay be obtained from, and may be submitted to, any office of the department, and the department shall transmit them to the commission.for a BFOQ exemption may be obtained from the department’s office of legal affairs or via the website at www.michigan.gov/mdcr.
(2) The commission may direct the department to investigate any matter deemed relevant tosuchan applications, and the applicant shall make availableany andall records, documents, data, or other information requested by the department or commission. Failure to providesuchthis informationshallresults in denial of the application.
(3) An exemption mustshallnot be granted if the same facts and circumstances are at issue in a complaint pending before the department or commission. Upon a sufficient showing, the commission may grant an exemption. The exemption may be later revoked by the commission if the commission obtains other or different information, but thesuchrevocations areis prospective. Any person obtaining an exemption shall notify the commission if and when the classification exempted is no longer utilized.
(4) An approved BFOQ exemption is effective for not more than 5 years after the date of the order of exemption issued by the commission.
(5) Within 21 days’ after notice to the person to whom an approved BFOQ exemption has been granted, the commission may revoke the BFOQ exemption by a majority vote of the commission.
(6) An application to renew a BFOQ exemption may be submitted on the application form provided by the department.
R 37.28 Method for Calculation of Days.
Rule 28. (1) All time is measured in days unless another rule specifically provides a different method.
(2) When counting the number of days, Saturdays, Sundays, and state holidays
must be included, subject to subrule (4) of this rule.
(3) “Day 1,” the first day for counting, is the day after the event.
(4) When counting the number of days, the last day of the counting period is included, unless it is a Saturday, Sunday, state holiday, or other day when state offices are closed, in which cases the last day becomes the next day state offices are open for business.
R 37.29 Mail and Electronic Service.
Rule 29. (1) Mailing a copy under these rules means enclosing it in a sealed envelope with first class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete upon mailing. Electronic service must be by email. When filing documents by email, all of the following apply:
(a) All documents must be in PDF format.
(b) The email subject line must include the case name, department case number, and title of each document being sent.
(c) An email sent at or before 11:59 p.m. is considered served on that day. If the email is sent on a Saturday, Sunday, or legal holiday, it is deemed to be served on the next business day.
(2) Both mailing and electronic service require proof of service. Proof of service must be by written acknowledgment of service, or a written statement by the individual who served the documents.
(3) Proof of service may be satisfied in documents filed through mail or email, or both, with the following written statement:
PROOF OF SERVICE
I, ___[name]____, certify, under penalty of perjury, that on __[date]___, I caused a copy of the above document to be served by __[mail/email]__ on ____[other party name]_____.
/s/ [electronic signature]
[name]
R 37.30 Signature.
Rule 30. (1) The claimant’s signature on a certified complaint form means all of the following apply:
(a) Claimant has read the document.
(b) To the best of claimant’s knowledge, information, and belief the allegations are grounded in fact.
(c) The certified complaint is made in good faith and not made for any improper purpose, including to harass or to cause unnecessary expense.
(2) Retention of a signature electronically affixed to a document that will be retained in electronic format must not depend on the mechanism that was used to affix that signature.
R 37.31 Manner of Hearings.
Rule 31. (1) Hearings scheduled in accordance with R. 37.7 and R. 37.12 may be held in person or remotely, or both, at the discretion of the commission and in a manner as determined by the commission.
(2) If a remote hearing is initially scheduled for a hearing pursuant to R 37.7, the claimant must be provided an opportunity to request an in-person hearing. A request for an in-person hearing must be made in writing to the commission within 7 days of the hearing notice.
(3) If a remote hearing is initially scheduled for a hearing pursuant to R 37.12, a party may request an in-person hearing within 7 days of the hearing notice.
(4) Requests for in-person hearings are considered on a case-by-case basis and granted only if both of the following requirements are met:
(a) A reasonable, good cause showing of accessibility limitations, specific evidentiary issues, or other unique circumstance.
(b) An agreement to comply with specific requirements for in-person hearings.