Arrest Record Discrimination Laws in Michigan

Federal law provides limited protection regarding arrest records. While the Civil Rights Act and EEOC guidance address discrimination based on conviction records (particularly as they relate to race, since arrest and conviction records are applied disproportionately to minorities), there is no blanket federal prohibition on employers asking about or considering arrests. Federal law (42 U.S.C. § 1981 and Title VII) allows challenge to conviction-based hiring policies only if they have a disparate impact based on a protected class.

The EEOC has issued guidance (2012) stating that blanket policies excluding individuals with any conviction record are disfavored, but individual assessment of conviction records is permissible if the conviction is recent and substantially related to the job. Federal courts apply a factors test: the nature and gravity of the offense, the time elapsed since conviction, and the nature of the job sought.

The Fair Credit Reporting Act (15 U.S.C. § 1681) governs background checks that include conviction history. Employers must provide notice before obtaining a background report and must offer reasonable opportunity to dispute inaccuracies. However, federal law does not restrict employers from asking about arrests at all—only from using conviction information in a discriminatory manner tied to protected class status.

Michigan law is substantially stronger than federal law in protecting workers from arrest-based discrimination. Michigan Compiled Law § 37.2701 explicitly prohibits employers from asking about arrests without conviction during the hiring process or making hiring decisions based on such arrests. This means an employer cannot inquire about arrests, even on an application or during an interview, unless the arrest resulted in conviction.

§ 37.2702 permits employers to consider only felony or misdemeanor convictions directly related to the job or business necessity. Employers must apply a reasoned analysis, considering factors such as: how recent the conviction is, the nature of the crime, the job duties, and whether the conviction creates a legitimate safety or security concern. Mere suspicion that an arrest occurred is insufficient; only actual convictions fall within the employer's permissible inquiry.

§ 37.2703 requires employers to notify applicants and employees of their policies regarding conviction inquiries, promoting transparency. Sealed or expunged arrest records cannot be considered under any circumstances; the employer is legally bound to treat such records as if they never existed.

Michigan law applies to all employers without a minimum employee threshold, making it more protective than federal Title VII (which covers employers with 15+ employees). Remedies under Michigan law include back pay, compensatory damages for emotional distress, punitive damages, injunctive relief, and reasonable attorney fees—more comprehensive than federal remedies in many cases. The Michigan Department of Civil Rights enforces these protections.

Michigan law contains limited exceptions. First, employers may ask about pending charges in certain narrow circumstances—if a pending arrest relates to pending criminal prosecution, some courts have allowed limited inquiry, though this remains unsettled and generally disfavored under Michigan's protective framework.

Second, employers in regulated industries such as banking, childcare, home healthcare, and security may have heightened ability to consider conviction records if state or federal licensing laws specifically require background checks. However, even in these industries, the employer must still apply the MCL § 37.2702 standards and demonstrate direct relationship to job duties.

Third, very recent convictions (those within the past few years, particularly for felonies) receive stronger scrutiny than remote convictions, and employers have broader discretion to exclude candidates with very recent serious convictions. However, this is not a blanket exception; individualized assessment is still required.

Fourth, certain federal bonding requirements or federal employment restrictions (such as those for federal contractors or employees in federally funded programs) may override state protections, though these are narrow and job-specific.

Fifth, sealed and expunged records are completely excepted from employer consideration—these records legally do not exist and cannot be used under any circumstances. Importantly, at-will employment does not create an exception: even in Michigan's at-will employment system, termination based on arrest without conviction is illegal.

Step 1: Document the Discrimination. Keep detailed records of when you were asked about arrests, by whom, in what format (application, interview, email). Save the job posting if it asked about arrest history. Document any written communications rejecting you based on arrest record. Retain any background check reports or investigative summaries. Note dates, names of interviewers or hiring managers, and the specific language used regarding your arrest record.

Step 2: Internal Complaint and Employer Notification. If employed, file a written complaint with your company's HR department or management. This creates an internal record and may trigger the employer's investigation. Use certified mail if possible. State clearly that the action violates MCL § 37.2701 or § 37.2702. If terminated after filing, document this retaliation carefully—retaliation is itself illegal under Michigan law. If still in hiring process, you may send a demand letter to the employer documenting the violation, though this is optional.

Step 3: File with Michigan Department of Civil Rights. Visit the MDCR website at michigan.gov/mdcr or call (517) 335-3165. You have 180 days from the discriminatory act to file. Prepare: (a) your name, address, contact information; (b) employer name and address; (c) dates of discrimination; (d) detailed factual description of what happened; (e) names of witnesses; (f) copies of any written communications; (g) job posting if available; (h) background check or hiring documents. MDCR accepts online complaints, mail, or in-person filing at 110 W. Michigan Ave., Lansing, MI 48913. No filing fee is required.

Step 4: Investigation Process and Timeline. MDCR will contact you within 5-10 business days to acknowledge receipt. The agency then notifies the employer, who has 30 days to respond. MDCR investigators will interview you, interview the employer, review documents, and may interview witnesses. The investigation typically takes 60-120 days. MDCR will issue a Determination—either finding of probable cause (discrimination likely occurred) or no probable cause. If probable cause is found, the case may proceed to a public hearing before a hearing examiner or may be resolved through conciliation. If no probable cause, you may request reconsideration or appeal to state court.

Step 5: Legal Representation and Next Steps. Consult an employment attorney if MDCR finds probable cause or if the employer contests your complaint. An attorney can represent you at MDCR hearing or negotiate settlement. If you cannot afford an attorney, contact the State Bar of Michigan Lawyer Referral Service or Legal Aid of Michigan for low-cost representation. An attorney is particularly important if seeking punitive damages or if retaliation occurred. Many employment attorneys work on contingency (no upfront fees) for discrimination cases. Consider filing in civil court simultaneously or after MDCR process if damages are substantial.