Since last year’s U.S. Supreme Court decision employers would be correct in thinking that sexual orientation is protected by Title VII of the federal Civil Rights Act of 1964, and for most Michigan employers they would be correct. However, Michigan itself has its own anti employment discrimination law in the Elliot-Larsen Civil Right Act (ELCRA) and it too has a sex discrimination prohibition in it.  However, Michigan has not technically extended its laws to fully protect sex discrimination extending protections for sexual orientation and gender identity.

Michigan has had legislation repeatedly introduced to officially expand its definition of Sex to include LGBTQ since 2005. In 2003 Governor Granholm issued an Executive Order prohibiting sexual orientation discrimination in public sector employment.  This did not extend to county, state, or local level governments in Michigan. Four years later the Governor added gender identity as a protected class.

The Michigan legislature has repeatedly voted down legislation banning discrimination based upon sexual orientation. This would have been the most democratic approach to amending Michigan’s ELCRA.

In 2018 the Michigan Civil Rights Commission, the highest executive branch bureau charged with ELCRA regulatory interpretation, started stating that sexual orientation and gender identity were covered by ELCRA.  This was a unilateral change to enforcement without any additional authority.

Also in 2018, the federal Sixth Circuit Court of Appeals that covers Michigan, Kentucky, Ohio, and Tennessee ruled in favor of extending federal Title VII Civil Rights protections to employment and ruled that persons could not use the Religious Freedom Restoration Act to protect against a discrimination claim – in this case involving a transgender individual (EEOC v. R.G & G.R Harris Funeral Homes). This case was joined together with two others to go to the SCOTUS case extending Title VII sex discrimination protections to LGBTQ individual lase year. Bostock v. Clayton County. GA.  

However, shortly thereafter back in Michigan, a business court ruling held Michigan employers could discriminate against LGBTQ individuals.

This, however, has not stopped municipalities in Michigan from extending their own protections during this time.

So here sat Michigan betwixt and between federal, state law, and municipal ordinances without much additional room to maneuver legally until now. Michigan’s GOP controlled legislature was not going to move the dial legally. So now comes Michigan’s Supreme Court with a sitting Democratic majority on its bench. Last week the Court agreed to bypass the Michigan Circuit Court of Appeals and take the case appeal of a lower court decision.  They held in favor of a ruling holding that ECLRA applies to gender identity but held also that “sex” in ECLRA did not cover discrimination based on someone’s sexual orientation – still too narrow. 

The Michigan Supreme Court’s decision to allow the case to leapfrog the normal appeals process was only one part of this drama. The Order from the Supreme Court in Rouch World LLC v. Department of Civil Rights was on a 4-3 party line vote. Four Democratic party judges voted for and 3 GOP judges voted against and dissented.

Employers can expect that in short order Michigan’s Elliot-Larsen Civil Rights Act will be expanded to protect LGBTQ in employment and housing and to fall in line with federal law as well. For most employers this will not be a change since as stated above most Michigan employers have been covered by federal law since the SCOTUS decision in 2020.

Sources: LGBT in Michigan; Wikipedia; Supreme Court Agrees to Bypass COA, Hear ELCRA Case. GONGWER (7/3/2021)