On May 21, 2018, the Michigan Civil Rights Commission (“MCRC”) voted that sex discrimination as addressed in the Elliott-Larsen Civil Rights Act (“ELCRA”) will include discrimination on the basis of gender identity and sexual orientation.
While ELCRA’s federal counterpart, Title VII of the Civil Rights Act of 1964, does not explicitly prohibit discrimination on the basis of gender identity and sexual orientation, the Sixth Circuit held in March that discrimination on the basis of gender identity is discrimination on the basis of sex. Moreover, the federal equivalent to the MCRC, the Equal Employment Opportunity Commission, continues to bring claims of sex discrimination involving gender identity and sexual orientation.
Employers should consider sexual orientation and gender identity to be protected classifications in making employment decisions and taking adverse employment actions against employees. Although not expressly authorized by statute or recognized by Michigan courts, the MCRC’s decision will provide support for discrimination and harassment claims based on these newly identified protected classifications. Employers should review their policies and training materials to ensure that they are sufficient.
Practice AreasLabor, Employment, Employee Benefits and ERISA