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Is It Discrimination If It Is LGBT Negative?

Employers are concerned.  It is possible to run afoul of anti-discrimination laws without intending to do so.  Irrespective of one's personal views on LGBT matters, we are often asked "if an employment policy appears to adversely affect gay people i.e. providing separate dressing areas because straight employees demand it" is it discrimination?"  Simply put, employers do not want to violate the law.

Under Michigan law, our major anti-discrimination statute is the Elliott-Larsen Civil Rights Act (ELCRA).  The law was passed by our legislature in 1976 and became effective in March 1977.  Surprisingly, Nearly 40 years later, ELCRA does not ban nor provide a remedy for discrimination based upon sexual orientation.

Is that the final answer?  No.  A number of federal laws (particularly Title VII) ban discrimination in the workplace for various reasons.  It has been argued that discrimination based upon a persons's gender (which is prohibited under both ELCRA and Title VII) includes and prohibits discrimination based upon sexual orientation.  However, the US 7th Circuit Court of Appeals has recently ruled (July of this year) that Title VII does not prohibit discrimination based upon sexual orientation so that employers are free to adopt anti or discriminatory LGBT policies.  Accordingly, neither the State of Michigan nor the federal government through Title VII prohibit discrimination in employment based upon sexual orientation at this point in history.

So, is that the final answer?  No. For two reasons:  First, a number of Municipalities (over 30 in Michigan) have adopted ordinances prohibiting LGBT discrimination in everything from public accommodations to the workplace.  It remains to be seen how effective those will be or how vigorously they will be enforced but employers should be aware that they exist.  Second, we do not believe the federal laws fight is over.  The Supreme Court has yet to speak on the subject and while the 7th Circuit (Illinois, Indiana and Wisconsin are included) is an important Circuit, there are already differing rulings in other places which means that ultimately our nation's highest court will decide the issue. In addition, there are still legislative attempts in Michigan (and presumably in our nation congress) to update legislation to include LGBT protections against discrimination.  Our takeaway?  You should always strive to adopt policies which are not discriminatory in any respect.  It is the safest avenue to travel.  Stay tuned!