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NewsPublications | July 29, 2022
3 minute read

Michigan Supreme Court Rules that ELCRA Includes Protection Against Discrimination Due to Sexual Orientation

In a landmark ruling, the Michigan Supreme Court held yesterday that Michigan law provides protection against discrimination on the basis of sexual orientation. The case, Rouch World, LLC v Department of Civil Rights, presented the question of whether a Michigan civil rights law, known as the Elliott-Larsen Civil Rights Act, or ELCRA, which protects against discrimination “because of . . . sex,” includes protection against discrimination due to sexual orientation. A 5-2 majority of the Court (with Justices Zahra and Viviano dissenting) held that it does, reversing a 29-year-old Michigan Court of Appeals decision and expanding the scope of Michigan’s civil rights laws in ways that could affect nearly all public-facing businesses and institutions in the state.

The case stems from a complaint filed with the Michigan Department of Civil Rights (MDCR) by a same-sex couple that had been denied the opportunity to host their wedding reception at an event center. The owners of the event center refused to host the reception based on sincerely held religious beliefs that limit marriage to be between one man and one woman.

The case was expedited to the Michigan Supreme Court, which ruled in favor of the same-sex couple. In doing so, Justice Clement, writing for the majority of the Court, closely followed the U.S. Supreme Court’s 2020 decision in Bostock v Clayton County. There, the U.S. Supreme Court had held that the federal statute that prohibits discrimination in employment decisions “because of sex”—known as Title VII—applied to alleged acts of discrimination based on sexual orientation.

Finding that the operative language in ELCRA is nearly identical to that in Title VII, the Court followed the U.S. Supreme Court’s reasoning to conclude that discrimination based on sexual orientation is inherently discrimination “because of sex” because the two concepts are “intrinsically linked.” The Court explained that discrimination against a male employee because he is attracted to other men is discrimination based on sex because the employee would not have been discriminated against if the employee were a woman.

The Court did not address whether the event center’s or its owners’ religious beliefs would allow them to escape the discrimination ban because of constitutionally protected religious liberties; that issue is for future litigation. The Court also did not address a companion case, which had raised the question of whether ELCRA provides protection against discrimination based on gender identity, although the Michigan Court of Appeals has already applied the same reasoning to hold that ELCRA does prohibit gender-identity discrimination.

While the majority’s reasoning closely tracks the U.S. Supreme Court’s in Bostock, the ramifications in Michigan are potentially far greater. Unlike Title VII’s employment-only focus, ELCRA applies to nearly every aspect of public life in Michigan. For example, ELCRA provides protection against discrimination in employment, housing, real estate, education, public service and “places of public accommodation,” which include all businesses and facilities available to the public.

Given this, businesses and other public-facing institutions should consider now whether their policies, standards and training account for this shift in law. This is particularly true of organizations that contract with the state, because ELCRA requires state contracts to include a provision prohibiting discrimination “because of . . . sex.”

As always, Warner Norcross + Judd is here to help. Warner’s Corporate, Higher Education, Labor and Employment, and Real Estate practice groups are ready to guide your organization through this change. And Warner’s appellate attorneys will continue to track key shifts in Michigan’s legal landscape to keep you and your organization apprised of changes.