There has been significant activity and publicity recently concerning the rights of lesbian, gay, bi-sexual and transgender (LGBT) individuals. For example, the U.S. Court of Appeals for the Sixth Circuit recently upheld Michigan’s constitutional ban on same sex marriages. This is contrary to the positions that other courts of appeals have taken on the issue and dramatically increases the likelihood that the U.S. Supreme Court will address the issue of gay marriage in the very near future.
Although much of the media focus has been on the issue of same-sex marriage, there also has been significant legislative activity and litigation addressing the rights of LGBT individuals in the workplace.
In Michigan, there presently are competing bills pending in the Legislature to amend the state’s Elliott-Larsen Civil Rights Act. The current law prohibits employment discrimination based on a variety of characteristics including religion, race, color, national origin, age and sex. It does not, however, prohibit discrimination based on sexual orientation, gender identity or transgender status. And while several local units of government have ordinances addressing such discrimination in one form or another, Michigan is one of 29 states without any specific state-wide employment discrimination protection for LGBT individuals.
A comprehensive bill introduced earlier this year by State Rep. Sam Singh, D-East Lansing, would have added “sexual orientation and gender identity” to the protections under Elliott-Larsen. Representative Frank Foster, R-Petoskey, introduced legislation that would amend the law to prohibit discrimination on the basis of sexual orientation only, without mentioning transgender status or gender identity or expression. House Speaker Jase Bolger, R-Marshall, introduced a Michigan version of the “Religious Freedom Restoration Act,” calling it a “necessary balance” to any modifications to Elliott-Larsen. Bolger’s bill would allow business owners to defend against a discrimination claim based on a “sincerely held religious belief.” Accordingly, there is a battle brewing over whether an amended law will add protections for transgender individuals and whether there could be exceptions based on religious beliefs.
Michigan Governor Rick Snyder has indicated his desire for Michigan lawmakers to amend Elliott-Larsen to include protections based on sexual orientation and gender identity. The Grand Rapids Area Chamber of Commerce and the Detroit Regional Chamber have added their support for the change.
Since there appeared to be enough support for inclusion of protections based on sexual orientation but not gender identity, the LGBT coalition decided to oppose any legislation that did not include gender identity. Consequently, the legislation was expected to die this session. On the other hand, the Religious Freedom Restoration Act won approval on a party line vote in the House and was expected to pass prior to the end of lame duck session.
At the federal level, President Obama signed an Executive Order on July 21, 2014, barring LGBT discrimination by federal contractors. Although the Equal Employment Opportunity Commission (EEOC) had historically refused to accept LGBT charges of discrimination against private employers (because federal law does not explicitly address this type of discrimination), the agency has changed its practice. In the EEOC’s view, discrimination against an individual because they do not conform to a “sexual stereotype” is a form of sex discrimination in violation of Title VII of the 1964 Civil Rights Act. Consistent with this position, the EEOC filed a brief in a case pending before the U.S. Court of Appeals for the Seventh Circuit (which hears appeals from federal district courts in the states of Illinois, Indiana and Wisconsin), taking the position that discrimination based on sexual orientation is a form of unlawful sex stereotyping. The EEOC reports that, for the first nine months of 2014, the agency received 667 sexual orientation charges and 161 gender identity charges.
Back in Michigan, a federal court recently struck down a Michigan law that prohibited all institutions that receive state tax dollars (in other words, the State of Michigan and all public employers) from extending health insurance benefits to “non-related adults living in the same home as a state employee.” U.S. District Court Judge David Lawson determined the Public Employee Domestic Partner Benefit Restriction Act violated the U.S. Constitution’s promise of equal protection and due process.
In another Michigan case, a funeral home has been sued by the EEOC for alleged discrimination against a transgender employee. The employer has asked the federal court to dismiss the case, claiming that Title VII of the Civil Rights Act of 1964 prohibits discrimination only on the basis of a person’s biological, anatomical, or physiological status, and not “gender identity.”
The EEOC claims that the employer illegally fired an employee who notified the employer that she was transitioning from male to female and would begin to dress differently.
One argument the employer made to the court was that Congress failed to enact the Employment Non-Discrimination Act (ENDA). The ENDA, if it had become law, would have included protections for sexual orientation and gender identity. The employer argued that the failure of Congress to amend Title VII by passing ENDA is proof that the current law does not cover gender identity.
Undoubtedly, 2015 will bring more developments – and perhaps some clarity – on the rights of LGBT individuals in the workplace. These developments will likely come from the state Legislature, the courts and administrative agencies. Employers will need to be mindful as the events play out.