On March 8, 2023, the Michigan Legislature passed Senate Bill 4, amending the Elliott Larsen Civil Rights Act (ELCRA), and adding protections for individuals based on their sexual orientation, gender identity or expression. Codifying the Michigan Supreme Court’s 2022 decision in Rouch World v MI Department of Civil Rights, which held that discrimination on the basis of sexual orientation constitutes a violation of ELCRA as currently written, the amendment makes Michigan the 24th state to incorporate provisions for safeguarding individuals based on sexual orientation. The amendment, however, goes one step further to add protections for “gender identity or expression.”
The changes in the ELCRA mean that individuals are now legally protected against discrimination in employment, as well as housing and education, based on their sexual orientation, gender identity or expression. ELCRA 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 “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.”
Senate Bill 4 currently awaits Governor Gretchen Whitmer’s signature, who has previously indicated her support for the amendment to the ELCRA. Once enacted into law, this bill will become effective after ninety days. Thereafter, ELCRA’s protected categories will include: religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, familial status, or marital status. In preparation, employers should update their equal employment opportunity policies in their handbooks, job applications, and any other location they may exist. These new protected categories might also serve as a good reason to review and train your organization on your organization’s policies prohibiting workplace discrimination, harassment and retaliation.