Posted: September 13, 2018 | by Kraig M. Schutter
It is generally understood that the Michigan Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination on the basis of one’s “sex.” What constitutes sex, however, has been contested over the years. This is especially true when hot-button issues such as sexual orientation and gender identity are added to the mix. In an unprecedented move, on May 21, 2018, the Michigan Department of Civil Rights (MDCR) voted 5-0 to issue an interpretative statement clarifying that sexual orientation and gender identity are, in fact, protected under the ELCRA.
In a press release, the MDCR explained that, "under the Elliott-Larsen Civil Rights act, discrimination on the basis of sex includes protection against discrimination on the basis of gender identity and sexual orientation."
The MDCR has been dancing around this issue for quite some time. In fact, last September the Michigan Attorney General informed MDCR that it did not have the authority under Michigan Law to make such a determination. According to the Attorney General, the decision to include sexual orientation and sexual identity claims within the ELCRA could only be made by the Michigan Legislature through amending the existing statute. After tabling the issue for several months, the issue was revisited resulting in the current decision.
Another major roadblock to the continued viability of the MDCR interpretation lies in the fact that Michigan courts have repeatedly held that sexual orientation is not protected by the ELCRA. In a major ruling on the issue, the Michigan Court of Appeals in Barbour v. Department of Social Services, 497 N.W.2d 216 (1993), stated in no uncertain terms that “harassment or discrimination based upon a person’s sexual orientation is not an activity proscribed by the act.” With the weight of judicial precedent against it, the MDCR will likely face an uphill battle if it intends to convince Michigan courts to resist the issue and agree with its newfound interpretation of the ELCRA.
In the short run, this will likely result in an influx of discrimination complaints filed with the MDCR alleging sexual orientation or gender identity discrimination under the ELCRA. Processing these complaints will no doubt invariably lead to litigation over the issue in the years to come as this issue continues to face a hotly divided legal landscape.
Despite the challenges likely faced by the MDCR decision, employers should take all employee discrimination or harassment complaints seriously. While sexual orientation remains unprotected under the ELCRA by judicial opinion, recent developments continue to cast doubt onto the longevity of these holdings. With this in mind, employers should remain vigilant of changes in the law. While this interpretation may only be guidance, ss the old adage goes - an ounce of prevention is worth a pound of regret.
Please contact the Masud Labor Law Group should you have any further questions regarding how to address sexual orientation or sexual identity in the workplace.
Kraig is a dedicated professional with 20 years of success in solving problems and representing clients in various labor and employment law concerns. His “sub-specialties” include union avoidance, grievance arbitration, employment policies development, as well as wage and hour matters, …
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