The legal landscape of LGBTQ rights in the workplace has rapidly evolved in the last few years. Employers cannot and should not ignore this issue.

In particular, courts and state legislatures have been sorting through the issue of whether anti-discrimination statutes extend their protections to those who identify as LGBTQ. Following the Supreme Court’s decision in Bostock v. Clayton County on June 15, 2020, employers now have clarity that Title VII of the Civil Rights Act of 1964, at least for the time being, includes sexual orientation and gender expression as protected categories. The Michigan Supreme Court followed suit in 2022 by holding that sexual orientation was covered as a protected category under the Michigan Elliott-Larsen Civil Rights Act (ELCRA).

Just recently, the Michigan legislature passed a law that amends ELCRA to include “sexual orientation” and “gender expression” as protected categories. While this recent change to Michigan law is not a huge change given the Bostock decision in 2020, it does mean that employers covered by ELCRA may be sued for sexual orientation or gender expression discrimination under both federal and Michigan law.

Despite the clarity of the issue of anti-discrimination statutes for Michigan employers, there remains uncertainty with other LGBTQ issues. For instance, there is no clear guidance on whether the use of pronouns or names that are inconsistent with an individual’s gender identity could be considered harassment. The EEOC issued a guidance on this and other issues related to transgender rights in the workplace, but that guidance was blocked for the time being by two separate federal courts. This means, unfortunately, that employers must rely on an inconsistent patchwork of court decisions to figure out their legal responsibilities to their employees. Additionally, there are open questions on the interaction between the First Amendment and LGBTQ rights.

These issues will continue to be raised and addressed in future litigation. Michigan employers should continue to stay up to date on this developing area of law and should consult with legal counsel when challenging issues arise.

Questions?

If you have any questions regarding the impact of this Act on your business, please contact Barbara Moore or another member of Miller Johnson’s Employment and Labor practice group.