On July 28, the Michigan Supreme Court issued its opinion in Rouch World, LLC, et al., v Michigan Dep’t of Civil Rights, et al. – a case addressing whether Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”) prohibits discrimination based on sexual orientation. The Michigan Supreme Court, in a 5 to 2 decision, held that discrimination on the basis of sexual orientation necessarily constitutes discrimination “because of sex” under ELCRA.

This ruling is particularly important for employers and businesses in Michigan. While the U.S. Supreme Court extended protections afforded by Title VII of the federal Civil Rights Act of 1964 to the LGBTQ community in Bostock v Clayton County, Title VII only applies in the employment context and only applies to employers with 15 or more employees and the federal government. On the other hand, ELCRA prohibits discrimination beyond employment – such as in housing, public accommodations, public service, and educational facilities. Additionally, ELCRA applies to all employers doing business in Michigan regardless of the number of employees they have.

The Michigan Supreme Court’s decision stems from two investigations led by the Michigan Department of Civil Rights. The first investigation, involving Rouch World, LLC, dealt with a same-sex couple that wanted to get married at the Rouch World facility. Rouch World denied the couple’s request because the owners believed that participating in a same-sex wedding ceremony would violate their sincerely held religious belief that marriage is between one man and one woman.

The other investigation involved a transgender woman who was denied electrolysis services by Uprooted Electrolysis, LLC because its owner believed the woman’s request for electrolysis was connected to her transgender identity. The facility’s owner argued that providing such services to the woman would violate her sincerely held religious belief that one’s sex is an “immutable gift from God.”

Both of these investigations were stayed when the Plaintiffs sued the Michigan Department of Civil Rights in the Court of Claims and sought declaratory relief. Relying on Michigan Court of Appeals precedent, the Court of Claims held that ELCRA does not protect against discrimination based on sexual orientation. However, the Court of Claims held that discrimination based on gender identity was in fact prohibited by ELCRA.

The Michigan Department of Civil Rights appealed the Court of Claims’ decision that ELCRA did not ban discrimination with respect to sexual orientation. Importantly, however, the Plaintiffs did not appeal the Court of Claims’ decision holding that ELCRA banned discrimination on the basis of gender identity. Thus, that decision was left intact.

The Michigan Supreme Court, relying on Bostock, held that although sexual orientation is distinct from the concept of sex, discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of sex in violation of ELCRA. That is, where the discriminator tolerates certain characteristics in one sex but not the other – such as a man’s marriage to a woman but not a woman’s marriage to another woman – discrimination based on sex has occurred.

Accordingly, the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service” on the basis of sexual orientation constitutes discrimination “because of . . . sex” and, therefore, constitutes a violation of ELCRA’s prohibition on discrimination. Notably, the Michigan Supreme Court’s opinion did not address whether enforcement under ELCRA for sexual orientation and gender identity discrimination would violate constitutional religious liberty protections.

After the United States Supreme Court’s decision in Bostock, many employers reviewed and updated their anti-discrimination policies. However, for those employers who did not or who might not have been required to do so because they were not covered by Title VII, we recommend the immediate consideration of a range of compliance practices, including but not limited to, an extensive review and revision of anti-discrimination, retaliation, and other appropriate policies, as well as consideration of appropriate training or re-training of your entire workforce about those policies.

Should you have any questions regarding the Michigan Supreme Court’s decision or ELCRA compliance, please contact Hannah K. Reisdorff at hreisdorff@clarkhill.com or any other member of Clark Hill’s Labor and Employment team.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.