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Employment Discrimination Update--Sexual Orientation and Gender Identity

In an earlier blog on this subject, we told you that under existing state law (the Elliott-Larsen Civil Rights Act--ELCRA) did not prohibit discrimination in employment based upon Sexual Orientation or Gender Identity.  We indicated that the state of the law as it existed at that time was likely NOT the final answer to the question of whether a person could be discriminated against in employment situations because he or she was gay, transgender, etc.  It turns out that we were prescient in that assessment.

The Michigan Civil Rights Commission has taken a remarkable action in issuing an "Interpretative Statement" clarifying that the state statute prohibiting discrimination in employment on the basis of sex (among other characteristics) INCLUDED the prohibition of employment discrimination base upon ORIENTATION and GENDER IDENTITY.  This ruling from the MCRC followed a decision last year by the 6th US Circuit Ct. of Appeals ruling in favor of a transgender woman who said she was illegally fired by a funeral home in Garden City while transitioning from male to female.  So, while many states still have not adopted this position, it is clear that in Michigan such discrimination is against the law.  The Michigan Civil Rights Commission has begun accepting complaints related to sexual orientation and gender-based discrimination.

As always, we recommend to our employer-clients--in any employment decision, take the route that is least likely to be ruled or seen to be discriminatory where the applicant-employee is otherwise qualifed.