The Times, They Are a Changing… Or Are They?

On Monday, May 21st, the Michigan Department of Civil Rights (the “Department”) announced that it is joining the Equal Employment Opportunity Commission (EEOC) in interpreting sex discrimination to include sexual orientation and gender identity. While federal law has been interpreted this way for some time, Michigan law (the Elliot-Larson Civil Rights Act) has for years used a more restrictive and traditional interpretation of sex discrimination. The action by the Department comes after the legislature rejected several bills to explicitly define the scope of sex discrimination to include sexual orientation and gender identity and after the Michigan Attorney General opined last fall that the Department did not have the authority to re-interpret the law.

This new interpretation of Michigan Law applies to not only employers but to a much broader group of entities and institutions so that sexual orientation and gender identity discrimination is also illegal in education, housing, and real estate as well as use of public accommodations and public service.

While the Department’s position was implemented on Tuesday, it faces an unclear future. A number of groups have vowed challenges to the interpretation and the Attorney General’s Office has reaffirmed its position that a change like this is for the legislature to decide. Indeed, the Department itself anticipates challenges. Dan Levy, the Department’s Director of Law and Policy, acknowledged as much in an interview reported in the Detroit Free Press:

“Only the Legislature can make laws, but the Legislature doesn’t do interpretations. The courts do, and the agencies of government do. It doesn’t necessarily change the law. It determines the way we are going to proceed under the law until there is a final ultimate decision. In a sense, you can’t get a final decision in the courts until you start cases. And so, this is the way we will be processing cases. It’s a way of letting the public know that if you’re a landlord or an employer, you could be subject to charges of discrimination if you do these things.”

So what should an employer do in the face of this uncertain landscape? For the moment, employers have little choice but to act on the basis that employees can file a complaint with the Department if they are discriminated against in the workplace for being lesbian, gay, bisexual, or transgender.

Why is this new interpretation especially important for Michigan employers when Federal Law already prohibits these forms of discrimination? Because in Michigan, supervisors can be personally liable for discrimination if they engaged in the discriminatory behavior. This means that successful plaintiffs can obtain damages from their individual supervisors as well as their employers, which is not the case under federal law where there is no individual supervisor liability. Another important distinction between Michigan and Federal law is that monetary damages are capped under Title VII, but not under Michigan law. The broad relief provided to discrimination plaintiffs in Michigan includes reinstatement, money for lost wages and future earnings, damages for mental and emotional distress, and reasonable attorney fees.

Examples of complaints the Department will likely now accept (in-line with how the EEOC has addressed these issues) include adverse employment decisions allegedly made against an employee because she or he is lesbian, gay, bisexual or transgender or because they do not conform to gender norms. Discriminatory acts can include requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation, terminating an employee because their spouse is the same sex, refusing to investigate claims of harassment by co-workers and supervisors, or other negative employment action because of an employee’s sexual orientation or gender identity.

Between the #metoo movement and this new interpretation of sex discrimination, it is crucial that employers ensure their workforce is trained on harassment and discrimination prevention. The Employment Practice Group at Rhoades McKee can assist employers in training their managers and employees on workplace harassment and discrimination.

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