Poking Through The Clouds – Employee Rights/ Labour Relations – United States

Enter the Rainbow, Part Two: The Michigan Supreme Court
protects LGBTQ Rights

The end of July 2022 found Michigan’s employment landscape
clouded over with all kinds of legal and financial issues relating
to the ruling by the Court of Claims that the state legislature
acted unconstitutionally when it adopted but then amended two 2018
ballot initiatives providing earned sick leave for most Michigan
workers and increasing the minimum wage for all employees. (See Back to the Future: Michigan Court Revives Paid
Sick Leave Requirements and Minimum Wage Hike). As Michigan
employers scrambled to figure out the financial implications of
this ruling they may have missed the rainbow that poked through the
clouds on July 28^th, when the Michigan Supreme Court
provided additional legal protections to the LGBTQ community ruling
that sexual orientation and gender identity are subject to
protection under Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”) settling an issue that had lingered despite
federal law protections for most employees that had existed since
early 2020.

The First Rainbow: The U.S. Supreme Court Adds Rainbow
Colors to Most Employment Relationships

In June 2020 we reported that the U.S. Supreme Court, in its
Bostock v Clayton County Georgia put a spotlight on the
rainbow that symbolizes the LGBTQ community by ruling that Title
VII of the Civil Rights Act covers sexual orientation and gender
identity. (See Enter the Rainbow: Supreme Court Rules that Title
VII Protects LGBTQ Workers). The decision was an important step
forward in terms of job protection for the LGBTQ community under
Federal Law, but we noted that it left a gap in the protection of
Michigan members of the community because it did not apply to small
employers not covered by Federal Law and the Michigan Courts had
ruled that Michigan’s Elliott-Larsen Civil Rights Act does not
specifically provide protection based on sexual orientation. While
the Michigan Department of Civil Rights had announced in 2018 that
it was going to apply ELCRA as if it did provide such protections,
legal challenges to that interpretation soon followed from a
wedding venue that denied a request to host a same-sex wedding and
from an electrolysis business that denied its services to a
transgender woman. This left a cloud of doubt regarding the
protection of the Michigan LGBTQ community not only with respect to
the public accommodation issues involved in the litigated cases but
for those working for small employers not covered by Title VII.
Legislative initiatives to amend the ELCRA stalled leaving the
issue in limbo while the legal challenges awaited resolution.

The Second Rainbow: The Michigan Supreme Court Colors the
Rest of the Picture

On July 28^th, the Michigan Supreme Court in Rouch
World, LLC v Department of Civil Rights removed the doubt that
had lingered under Michigan law, ruling that under the unambiguous
language of the statute, discrimination on the basis of gender
identity or sexual orientation necessarily involves discrimination
because of sex in violation of the statute. While the specific
issue before the Michigan Supreme Court related to sexual
orientation and gender identity discrimination in places of public
accommodation under section 302 of the Act, the rationale used by
the Court leaves no doubt that such discrimination is also illegal
in the employment setting under the virtually identical language of
Section 202 of the Act which relates to employment practices.
Indeed, the Court’s analysis of the language of the statute was
essentially identical to that used by the U.S. Supreme Court in
Bostockv Clayton County which specifically found
that such discrimination is illegal in the employment setting.

The Current Landscape for Michigan Employers

As we reported on August 2^nd, the ruling that
Michigan employers would face the significant sick leave and
minimum wage requirements as set forth in the original ballot
initiatives has been put on hold through February 19, 2023. (See Update: Court Stays Enforcement of Revived Earned
Sick Time Act and Minimum Wage Hike). With the dark cloud of
expense accompanying the initiatives at least temporarily blowing
away, Michigan employers can now see that the landscape includes
the full array of rainbow colors protecting against discrimination
based on sex including gender identity and sexual orientation. As a
result, care must be taken that all decisions relating to hiring,
firing, discipline, promotion, and other employment practices are
free of any such discrimination.

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