For years, if not decades, the debate over whether Michigan’s Elliot Larsen Civil Rights Act (ELCRA) covers LGBT has raged. Court challenges have been the preferred method to change the law, but the courts have been split over whether the characteristic of Sex enumerated in the law was intended to also cover sexual orientation.
This is not a new issue for employers either. Many employers have included sexual orientation in their Equal Employment Opportunity (EEO) and anti-Harassment policies. This has been done regardless of how the law could be interpreted.
Current State of LGBT Rights in Michigan
Though Michigan has tried to extend the ELCRA to sexual orientation status, the U.S. District Federal Court for the Western District of Michigan has held Michigan cannot extend ELCRA protections to LGBT. Further, some municipalities have established local laws or polices to protect LGBT, and Michigan government has followed nondiscrimination policy for its employees. This year the Governor and Michigan legislators announce their support for Michigan House Bill 4688 that would also amend the ELCRA. Their approach, unlike the ballot initiative outlined below, would be to add sexual orientation and gender identity or expression to the list of protected classes in the law itself.
Ballot Initiative
Last week, an LGBT group proposed a ballot initiative to amend the ELCRA for this November’s election. The proposal’s approach, rather than adding sexual orientation and gender identity as a new protected class under the ELCRA, would be to amend the definition of Sex to include “gender, sexual orientation, and gender identity or expression.”
Business supporters of amending ELCRA to protect the LGBT community are DTE Energy, Consumers Energy, and Verizon.
The next step toward amendment for this petition is to collect the necessary number of signatures by May 27, 2020. Proponents of this amendment need to collect 340,047 valid signatures from registered voters.
As Michigan voters witnessed with the Paid Sick Leave and the Minimum Wage laws, the ballot initiative process allows the Michigan legislature to legislate the proposed amendment into law before the election and keep the ballot initiative from going to a vote. If the ballot initiative gets enough valid signatures by May 27, the state legislature would have 40 days to adopt the law. If they so choose, then they could amend the law differently after that. This is what happened to the Paid Sick Leave and Minimum Wage amendment laws.
Currently the Republican-led Michigan Legislature has opposed expanding legal rights to LGBT. One of the primary reasons for Republican objection has been that expansion of LGBT rights may conflict with merits of religious freedom. From a business standpoint the two sides have been unable to resolve the conflicting result that expansion of protections for the LGBT community could result in potential punishment of people that fail to provide services to LGBT based upon religiously held beliefs. This has been one of the big obstacles to the ECLRA amendment in the past and why advocates for LGBT have pursued resolution judicially rather than democratically amending the law as proscribed by the Constitution.
Amendment of ELCRA would extend legal protections in other areas such as housing and public services. In the realm of employment law many employers have modified their EEO policy to include sexual orientation employment rights already. Other employers simply do not care about who they hire as long as they can do the job. Regardless, it would be democratically healthy to see this issue resolved through the law’s amendment by voter or the legislative process rather than be compelled by court ruling or worse a government regulatory agency that seeks to interpret or re-interpret a possibly outdated law.
Source: Gongwer LGBT Group Behind ELCRA Initiative Believes it Will Succeed at the Ballot Box 1/10/2020. MI Bar Journal, An Overview of LGBTQA Rights in Michigan December 2019, Vol.98 No. 12 pg. 38