On March 16, 2023, Governor Gretchen Whitmer signed into law a bill amending Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) to expressly prohibit discrimination based on “sexual orientation” and “gender identity or expression.” The bill in question, Senate Bill 4, defines “sexual orientation” as “having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation,” and defines “gender identity or expression” 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.” The bill takes effect ninety (90) days after its enactment, being June 19, 2023.
This legislation follows the Michigan Supreme Court’s 2021 ruling in Rouch World, LLC v. Department of Civil Rights. In that decision, the Michigan Supreme Court concluded that discrimination based on sexual orientation violated the ELCRA’s prohibition on discrimination based on sex. The Rouch World decision did not address “gender identity or expression.” The enactment of Senate Bill 4 codifies and expands the Rouch World decision. It also aligns Michigan’s ELCRA with federal law, as both sexual orientation and gender identity have been protected characteristics under federal law since 2020.
In light of this development, employers should review their policies and procedures related to discrimination, as well as the training provided to human resources and managerial employees, to ensure it reflects these protections. If employers have questions, they should contact Nikole Canute, Scott Dwyer, Nate Wolf, Kimberly Large, Dominic Clolinger, or Kathryn Zoller as soon as practicable.