On July 28, 2022, the Michigan Supreme Court determined that employers are prohibited from discriminating against employees based upon sexual orientation.

The Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., prohibits employers from discriminating against employees or applicants on the basis of "religion, race, color, national origin, age, sex, height, weight, or marital status." MCL 37.2202(1). Please note that the ELCRA applies to employers with one or more employees, while Title VII, the federal counterpart, only applies to employers with 15 or more employees. Up until the July 28, 2022 decision in Rouch, the ELCRA did not apply to claims of discrimination based on sexual orientation.

Now, according to the Michigan Supreme Court, sexual orientation is covered by the ELCRA. The court determined "discrimination on the basis of sexual orientation necessarily involves discrimination because of sex." Rouch World, LLC v. Dep't of Civil Rights, No. 162482 (July 28, 2022). "Sexual orientation is 'inextricably bound up with sex,' because a person's sexual orientation is generally determined by reference to their own sex." Id. (Quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1742 (2020)). This decision brings Michigan in conformity with Title VII, and the landmark United States Supreme Court ruling in Bostock. Therefore, employers may not discriminate on the basis of sexual orientation under the ELCRA.

Two separate plaintiffs brought the foregoing suit in violation of the ELCRA in non-employment contexts. The owners of Rouch World denied a request to host a same-sex wedding at their facility, claiming that doing so would violate their religious beliefs. The owner of Uprooted Electrolysis denied hair-removal services to a transgender woman on the same basis.

The protections also extend to public accommodations or services; educational institutions; and persons engaging in real estate transactions, or as a real estate broker or salesman under the ELCRA. MCL 37.2303; MCL 37.2402; MCL 37.2502.

Note that the opinion is widely being cited as also protecting gender identity.

Employers should also review their harassment and discrimination policies to ensure sexual orientation is listed as a protected class. Please contact the attorneys at Dinsmore & Shohl for more information.