Last week, the Michigan Supreme Court in a 5-2 decision ruled in the Rouch World LLC v. Department of Civil Rights (SC Docket 162482) case that sexual orientation is covered by “sex” in the Elliott-Larsen Act. This case was brought by businesses that denied services to customers who were either a same-sex couple or an individual who was transitioning their gender identity for religious reasons. Defendants in the lawsuit include Uprooted Electrolysis LLC, based in Gwinn, and Rouch World LLC, an amusement park in downstate Sturgis.
Specifically, the owners of Rouch World had denied a request to host the same-sex wedding of Natalie Johnson and Megan Oswalt at their facility, claiming that doing so would violate their religious beliefs. The owner of Uprooted Electrolysis had denied hair-removal services to Marissa Wolfe, a transgender woman, on the same basis.
A civil rights complaint was opened by Michigan Department of Civil Rights for violation of the Elliott-Larsen Civil Rights Act for denial of public accommodations. In a previous case, the Michigan Court of Claims had ruled that the law provides protection for gender identity discrimination. Sexual orientation discrimination was not a part of that case. However, the Department of Civil Rights (DCR) had previously issued in 2018 an interpretive statement indicating that Elliott-Larsen’s prohibition against discrimination based on sex included sexual orientation and gender identity.
A lawsuit was then filed by Rouch World and Uprooted in the Michigan Court of Claims against DCR, stating that the Elliott-Larsen Act does not protect gender identity or sexual orientation in places for public accommodations. They then filed for summary judgement, which the Michigan Court of Claims granted with respect to sexual orientation not being protected by Eliiott-Larsen because a previous case only protected gender identity. Then DCR filed an appeal and moved for the case to be heard by the Supreme Court for a definitive ruling. The Supreme Court picked up the case.
After arguments, the 5-2 court ruled that because one’s sex is necessary to the identification of sexual orientation, discrimination on sexual orientation is discrimination on the basis of sex. The court then stated:
“While the principal evil motivating the 1976 Legislature to prohibit discrimination on the basis of sex may have been the preferential treatment of males to the detriment of females, this motivation does not curtail other applications of the plain statutory language. Both the ELCRA and Title VII have been applied to circumstances likely unanticipated by the enacting Legislature, including pregnancy discrimination, sex-stereotyping cases, same-sex sexual harassment, and retirement accounts. The Legislature’s failure to foresee particular statutory applications does not prohibit these applications as long as they are consistent with the plain language of the statute.”
Therefore, Elliott-Larsen protects against discrimination for gender identity and sexual orientation. HR needs to ensure that gender identity and sexual orientation is protected in the workplace and employees and managers need to be trained on it.
There is one caveat though. Rouch World and Uprooted Electrolysis is a public accommodation case that argued that providing such services violated their religious beliefs. This is similar to the losing argument at the time in Bostock, and also similar to the Masterpiece Cake case whose owner was ordered by the Colorado civil rights department to make a cake for a gay couple’s wedding. In the latter case, the Supreme Court ruled that a government agency does not have the right to order a private citizen to violate their religious beliefs. This case could be appealed to the U.S. Supreme Court, who could rule in favor of Michigan with their interpretation of sex, but rule for Rouch World and Uprooted Electrolysis in the public accommodation aspect.
ASE will continue to follow any further developments in this case.