LGBT Employment Discrimination

The Michigan Supreme Court ruled yesterday in a 5-2 decision that Michigan’s main civil rights statute, the Elliott-Larsen Civil Rights Act, prohibits discrimination based on sexual orientation. This means ELCRA’s anti-discrimination protections extend to LGBT (lesbian, gay, bisexual, and transgender) Michiganders.

Going Deeper:

The Michigan Supreme Court decision stems from a lawsuit, Rouch World LLC v Dept. of Civil Rights, filed by two for-profit companies that refused to provide services to LGBT customers. One company, Rouch World, rented property for events and refused to allow a lesbian couple to hold their wedding onsite. The other company, Uprooted Electrolysis, refused to provide services to a transgender woman.

In October 2021, a Court of Claims judge sided with these businesses finding that Michigan’s ELCRA did not include protections for sexual orientation because the term “sex” in the act’s language is so broad.

In rejecting that decision, the Michigan Supreme Court held, “Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex.”

The Michigan Supreme Court relied heavily on the U.S. Supreme Court’s 2020 ruling in a landmark case, Bostock v. Clayton County, Georgia. That case concerned whether the federal Civil Rights Act of 1964 protected people from discrimination based on their sexual orientation and gender identity. The Bostock case also involved a companion case involving a Metro Detroit transgender woman who successfully challenged her firing from a local funeral home for coming out as transgender.

The Bostock opinion held when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, the Court concluded, “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” And this was the same conclusion reached by the Michigan Supreme Court.

And this decision is long overdue. For example, in 2013 I wrote about the need for Michigan law to extend its civil protections under ELCRA to sexual orientation and gender identity. See Sexual Orientation Discrimination and Michigan Law – Is it a Time for a Change? Nine years later, here we are.

What This Means for Employers and Employees.

In 2015 after the U.S. Supreme Court’s ruling in the Obergefell v. Hodges same-sex marriage case, we cautioned employers that Michigan’s ELCRA recognizes marital status as a protected classification – such protections did not exist under Federal law. Thus, Michigan LGBT employees in same-sex marriages had some but not all protections against discrimination under Michigan’s ELCRA.

But now under the ELCRA, sexual orientation is among protected characteristics like race, religion, weight, and marital status. In short, Michigan employers and landlords cannot fire, deny jobs, access to housing, or take other adverse employment action against an LGBT person simply because of who they are.

Further, while Bostock held federal law covered sexual orientation, the Michigan Supreme Court’s decision that Michigan law covers sexual orientation is much more expansive than the Bostock decision reaching the same conclusion about federal law. This is because Michigan’s ELCRA applies to all employers and Title VII applies only to employers with at least 15 employees.

The two dissenting judges raised issues prospective litigants will likely face or used to limit protections for LGBT individuals.

But for now, the best advice I can give Michigan employers is to exercise the same caution and reasoning that should be applied before making any adverse employment decision. This generally means making sure the disciplinary decision stems from a workplace policy violation or poor job performance for which other similar but non-LGBT employees would have been disciplined.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.