Charles Oxender on Michigan Civil Rights Commission’s Statementon ELCRA
By Steve Thorpe
The Michigan Civil Rights Commission recently voted to issue a statement clarifying that, under the Elliott-Larsen Civil Rights Act, discrimination on the basis of sex includes protection against discrimination on the basis of sexual orientation and gender identity. Charles Oxender of Miller Canfield’s Detroit office specializes in labor and employment law, with extensive experience including collective bargaining, presenting and defending cases in grievance and arbitration proceedings, unfair labor practice charges, and discrimination charges at both the state and federal level, as well as defending discrimination lawsuits.
Thorpe: Give us some background. What did the Elliott-Larsen Civil Rights Act (ELCRA) originally do? What’s an “interpretive statement” and what sort of clout does it have in this situation?
Oxender: The Elliott-Larsen Civil Rights Act (“ELCRA”) provides that “[t]he opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.” The Act generally prohibits employers from discriminating against employees and potential employees based on the listed categories.
The Michigan Civil Rights Commission (“Commission”) was created by the Michigan Constitution of 1963 to carry out the guarantees against discrimination articulated in Article I, Section 2 of the Michigan Constitution, which states that “[n]o person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.” The Commission is charged with investigating alleged discrimination against any person because of religion, race, color or national origin and to “secure the equal protection of such civil rights without such discrimination.” The ELCRA and subsequent amendments have added sex, age, marital status, height, weight, arrest record, and physical and mental disabilities to the original four protected categories to the Commission’s charge.
Commission Rule 37.23 provides the Commissions’ authority for issuing an interpretive statement. The rule states: “[t]he commission may adopt interpretive or procedural guidelines, or both, at a regular or special meeting, if not less than 5 members are present and are voting in favor of such guidelines and notice thereof is given to all members of the commission not less than 10 days before the meeting at which action is to be taken. Guidelines may be amended or rescinded by the same procedure. The guidelines shall be available to the public at all offices of the department.”
The Interpretive Statement will guide the Commission’s actions unless overturned by a court action.
Thorpe: Agustin V. Arbulu, Director of the Michigan Department of Civil Rights, said after the statement was issued, “I commend the Commission for the courage they’ve shown in making this decision. Beginning tomorrow morning, the department will begin processing complaints of sex discrimination based on sexual orientation and gender identity.” Whoa! The law usually moves slowly. What’s happening here?
Oxender: Again, this is an interpretive guideline that directs the internal functioning of the Commission. Further, the Commission originally requested public comment on the issue during its July 24, 2017 meeting, and then accepted public comment from July 25, 2017 through August 15, 2017. The interpretive statement went through a yearlong process of evaluating public comment before it was implemented. Once the Commission voted to implement, the interpretive guidance became effective immediately.
Thorpe: The Michigan Attorney General’s office told the Commission in September 2017 that it did not have the authority to re-interpret ELCRA. How are they reacting?
Oxender: At this point, the Attorney General’s office has publically stated that it does not believe the Commission has the authority to issue the interpretive guidance, as it believes it is outside the Commission’s authority. On May 29, 2018, Michigan House of Representatives Speaker Tom Leonard and Senate Majority Leader Arlan Meekhof requested that the Attorney General’s office issue a formal opinion concerning the ability of the Civil Rights Commission to issue the interpretive statement. That opinion is pending.
Thorpe: Much of the debate centered on the meaning of the word “sex.” How did that play out?
Oxender: The only definition of “sex” in the ELCRA states that sex “includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of the mother.” However, recent federal Court decisions have held that federal civil rights laws that parallel the ELCRA have found that prohibitions based on the word “sex” include discrimination based on sexual orientation and gender identity. The Commission relied in part on these opinions when issuing the interpretive guidance.
Thorpe: Is this rights battle over? What may be next?
Oxender: No. Once the Attorney General issues his formal opinion, it is likely that there will be a lawsuit to ultimately decide whether the Civil Rights Commission had the authority to issue and follow the interpretive guidance. Further, the political pressure to prohibit discrimination based on sexual orientation and gender identity will continue to play out all over the country.
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