Michigan Expands Protected Categories under the Elliott-Larsen Civil Rights Act

On March 16, 2023 Governor Whitmer signed Senate Bill 4, which expands the language of the Elliott-Larsen Civil Rights Act (ELCRA) to include “sexual orientation” and “gender identity or expression” to the law’s list of protected categories. Public Act No. 6 of 2023 takes effect 90 days after enactment.

Originally passed in 1976, ELCRA “prohibits discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sexual orientation, gender identity or expression, sex, height, weight, familial status, or marital status.”

The amendments include definitions of the new categories. “Sexual orientation” is defined as “having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.” “Gender identity or expression” is defined as “having or being perceived as having a gender-related self-identity or expression, whether or not associated with an individual’s assigned sex at birth.”

Given these recent developments, educational institutions, employers, businesses offering public accommodations, governmental entities offering public services, persons engaging in real estate transactions, and other organizations covered by the ELCRA should confirm that their handbooks, policies and procedures protect against discrimination based on these protected categories. Managers and supervisors must also be aware of these updates.

The full impact of the amendments remains to be seen. In 2022 the Michigan Supreme Court held that the ELCRA prohibition of sex-based discrimination also prohibits discrimination based on sexual orientation. Rouch World, LLC et al. v. Department of Civil Rights et al., Docket No. 162482 (July 28, 2022). Public Act 6 of 2023 explicitly codifies the protection afforded by the Rouch World decision and goes further to add protection for gender identity and gender expression, which were not addressed by the Supreme Court’s opinion. Significantly, neither the Supreme Court’s opinion in Rouch World or the new amendments address religious liberty protections. The intersection between religious liberty and discrimination laws will likely be the subject of legislative activity and litigation.

Attorneys at CMDA will continue to monitor the new amendments and update you on future changes.

Kristen Rewa is a partner in our Grand Rapids office where she focuses her practice on municipal law, law enforcement defense and litigation, employment and labor law, and insurance defense. She may be reached at (616) 975-7470 or krewa@cmda-law.com.