17 March 2023

Michigan Expands LGBTQ Protections In Civil Rights Law

On March 16, 2023, Michigan Governor Gretchen Whitmer signed into law Senate Bill 4, which amends the Elliott-Larsen Civil Rights Act (ELCRA) to include “sexual orientation” and “gender expression” as protected categories.   The amended law defines the terms as follows:

  • “Gender identity or expression” means having or being perceived as having a gender-related self-identity or expression whether or not associated with an individual’s assigned sex at birth.
  • “Sexual orientation” means having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.

Originally passed in 1976, ELCRA banned discriminatory policies and practices on the basis of religion, race, color, national origin, age, sex, height, weight, familial status, and marital status. Until Governor Whitmer signed SB 4 into law, ELCRA did not prohibit discriminatory policies and practices on the basis of sexual orientation or gender expression. Previous efforts to amend ELCRA to include these protections failed.

The signing of SB 4 into law is the result of a shift in the legal landscape for LGBTQ civil rights protections that began in June 2020, when the United States Supreme Court held that Title VII prohibits discrimination on the basis of sexual orientation and transgender status.  Then, on July 28, 2022, the Michigan Supreme Court adopted the United States Supreme Court’s reasoning and held that ELCRA prohibits sex-based discrimination based on sexual orientation.  SB 4 codifies the Michigan Supreme Court’s decision with respect to sexual orientation, meaning a future panel of the Michigan Supreme Court cannot reinterpret ELCRA and hold that it does not protect individuals from discrimination on the basis of sexual orientation.  It also, for the first time under Michigan law, extends protections to individuals on the basis of gender identity or expression.

SB 4 does not change the United States Supreme Court’s recognition that the First Amendment can bar application of employment discrimination laws to employment claims between ministers and religious institutions.  These issues will certainly be raised and addressed in future litigation.

The Takeaway

The protections codified by SB 4 are not new for employers with 15 or more employees (i.e., employers subject to Title VII), although employees now have the option to bring under state and federal law claims of discrimination or harassment on the basis of sexual orientation or gender identity or expression.  Employers with fewer than 15 employees are now restricted by law from discriminating against employees on the basis of sexual orientation or gender identity or expression.

The Miller Johnson team was prepared for SB 4 and is ready to assist our clients with their needs.  If you have any questions, please contact a member of Miller Johnson’s Employment and Labor practice group.