Sexual Orientation is Now Protected Under ELCRA

The Michigan Supreme Court recently held that under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), sexual orientation discrimination is discrimination “because of sex” and is therefore prohibited. Rouch World, LLC v Michigan Dep’t of Civil Rights, Docket No. 162482 (July 28, 2022).

The case arose from two separate allegations of discrimination. The first allegation was made by a same-sex couple against a company that denied the couple’s request to get married in one of its facilities, claiming that it would violate the owners’ religious belief that marriage is between one man and one woman. The second allegation was made by a trans-gender woman who was denied electrolysis services by a company because its owner believed the woman’s request was connected to her transgender identity. According to the owner, providing electrolysis services to the woman would violate the owner’s religious beliefs.

The individuals who were denied services filed complaints with the Michigan Department of Civil Rights (MDCR). The investigations were paused when the companies sued MDCR in the Court of Claims and sought a declaratory judgment that ELCRA does not prohibit sexual orientation and gender identity discrimination. The Court of Claims held that, while ELCRA prohibits discrimination based on gender identity, it does not protect against discrimination based on sexual orientation.

MDCR appealed the Court of Claims’ decision with respect to sexual orientation, but the companies did not appeal the Court of Claims’ decision that ELCRA prohibits discrimination based on gender identity. Relying on Bostock v Clayton County, in which the U.S. Supreme Court held that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964, the Michigan Supreme Court held that “[d]iscrimination on the basis of sexual orientation necessarily involves discrimination because of sex.” Therefore, any denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” on the basis of sexual orientation by a public entity constitutes an ELCRA violation.

What Does This Mean for Schools?

As schools are subject to both Title VII and Title IX, which prohibit discrimination based on sex (which includes sexual orientation and gender identity), schools should already have adopted non-discrimination policies that prohibit such discrimination. For Thrun Policy Subscribers, these are Policy 3115 – Nondiscrimination and Retaliation and Policy 3118 – Title IX Sexual Harassment. Even if policies have already been adopted, the Michigan Supreme Court decision serves as a good reminder to ensure such policies, administrative guidelines, and employee and student handbooks are up to date.

Additionally, since sexual orientation is now a protected status under state law, individuals may file suit for discrimination based on sexual orientation in state court or they may file a discrimination complaint with the MDCR. School officials must be especially careful to treat employees and students similarly, no matter their sexual orientation, to avoid claims of discrimination under ELCRA.