Michigan AG and Civil Rights Commission at odds over LGBT protections

By: Miriam L. Rosen 

There’s a battle brewing in Michigan…and this time it isn’t over college football.

In May 2018, the Michigan Civil Rights Commission (“MCRC”) issued a statement re-interpreting the Elliott-Larsen Civil Rights Act, the state civil rights law, to cover discrimination based on sexual orientation and gender identity.  The MCRC took this action knowing that the state Attorney General disagreed with that position. Claudia Orr discussed this development in her post, Recent Developments Related to LGBTQ Rights, in the June 13, 2018 Detroit SHRM Digest.

On July 20, 2018, Attorney General Bill Schuette, who is currently running for governor, fired back at the MCRC in an Attorney General Opinion Letter (“AG Opinion”) stating that Michigan’s civil rights law does not  protect LGBT workers from discrimination based on their sexual orientation or gender identity.

The AG Opinion asserts that the MCRC did not have the authority to expand the law “because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan courts.” According to the AG Opinion,  “[t]he word ‘sex’ was understood in 1976, when [state civil rights law] was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identify. “

The MCRC is not backing down, however.  In statement released on July 23, 2018, the  MCRC indicated that it would continue to follow its interpretive statement that the word “sex” in Michigan’s civil rights law protects lesbian, gay, bisexual, and transgender workers.  The MCRC’s position is that as “an independent, constitutionally created and established body,” it “is not bound by the opinion of the Attorney General.”

Where does this leave employers in Michigan? 

For employers with 15 or more employees covered by Title VII of the Civil Rights Act, the federal civil rights law, the EEOC has already taken the position that sexual orientation and gender identity are protected under that law.  But employers – both large and small – covered by Michigan’s Elliott-Larsen Civil Rights Act should understand that the MCRC will now accept and investigate claims of LGBT discrimination under state law.

One thing is certain…this dispute about which government entity has authority to interpret state civil rights law will be settled in court, not on the football field.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2018.