Ask The Lawyer, “New Agency Ruling Expands LGBT Employment Rights – But for How Long?

For decades, members of Michigan’s LGBT community have had no protection against discrimination in the workplace. A skilled employee who is gay, lesbian, transgendered or bisexual can be fired, demoted, or otherwise discriminated against for that reason alone.

That may be changing. On May 21, 2018 Michigan’s Department of Civil Rights announced it would accept claims of discrimination on the basis of sexual orientation or gender status under the state’s Elliott-Larsen Civil Rights Act (ELCRA). That law bars discrimination “because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.”

But that protection may be short-lived. The commission’s decision is expected to be challenged by Attorney General Bill Schuette. The AG says ELCRA can only be amended by the legislature, not by the Department of Civil Rights. The Michigan legislature has declined to pass such legislation.

The MDOC says its new approach is not a revision of ELCRAA, but only a reinterpretation, in line with current law. A growing number of federal courts have held employment discrimination based on sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964, ELCRA’s federal counterpart.

Those decisions include the Sixth Circuit Court of Appeal’s March 2018 ruling in EEOC v R G & G H Harris Funeral Homes, a Macomb County case, which held the employer violated Title VII when he fired a worker because of her transgender status. (The Sixth Circuit was not asked to decide whether Title VII protections extend to sexual orientation.) The Seventh and Second Circuits ruled in 2017 and 2018, respectively, that Title VII’s bar against discrimination “because of … sex” includes a prohibition against discrimination on the basis of sexual orientation or gender identity.

But the federal courts are not united on the issue. The Eleventh Circuit, in a case out of Georgia, ruled that because Title VII does not specifically mention sexual orientation or gender identity as protected categories, it is up to the lawmakers in Congress, not the Courts, to decide who is protected. With a split in the circuits, the question could be headed to a conservative Supreme Court to decide.

There is also a split in the government’s approach. The Justice Department – like the Michigan Attorney General’s Office — argues that Title VII does not provide protection to LGBT people. The federal Equal Opportunity in Employment Commission, which issues guidance to employers, takes the contrary position.

Although Congress has declined to pass a law giving LGBT people work place protections, individual states have been less recalcitrant. Nineteen states and the District of Columbia, offer some protection from employment discrimination to LGBT people.