BREAKING NEWS!!! — It seems that is a headline for everything these days but our latest update on this topic is indeed Breaking News. When we last visited this topic, we told you that the Michigan Civil Rights Commission (MCRC) had adopted a new policy “interpreting” the Elliot-Larsen Civil Rights Act (ELCRA). That policy was to announce that in its interpretation of the law, the Commission concluded that employment discrimination based upon Sexual Orientation and/or Gender Identity was covered and PROHIBITED by ELCRA. At the same time, it announced it was accepting complaints based on alleged discrimination in those categories.
That announcement placed MI squarely in a (albeit growing) minority of states embracing that position (and included some Federal US Cts. of Appeal). This past week, the MI Attorney General, based upon a request from the legislature issued an Attorney General’s opinion which concluded that ELCRA did NOT prohibit discrimination in employment based upon those two categories. The AG’s rationale was that the MCRC was bound to follow the law “as written”, that nothing in the text of the law referred to either sexual orientation or gender identity and that if the law was to be “changed” it could not be done via MCRC “interpretation”. Rather, the AG said that if the “policy” changed the law, it was void because it was the Legislature’s responsibility to change the law.
The binding nature of the AG’s opinion is a matter of some dispute. This will likely soon be headed to the Courts for a decision–STAY TUNED!