?The Michigan Senate took a historic step yesterday to increase workplace protections for members of the LGBTQ community by passing a law that would prohibit discrimination on the basis of sexual orientation, gender identity, or expression.
Senate Bill 4 expands the protections of Michigan’s Elliott-Larsen Civil Rights Act not only in employment, but also in public accommodations and services. While several steps still need to occur before the Senate bill can become law, the groundwork appears to be laid for this new classification of protected worker to be added to state law in the near future. What do employers need to know about this legislative development, and what should you do to prepare?
The Senate bill defines sexual orientation as “having an orientation for heterosexuality, homosexuality, bisexuality or having a history of such an orientation or being identified with such an orientation.” It further 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.”
If this law eventually passes and takes effect, employers could face repercussions if they are found to have discriminated against LGBTQ applicants or employees – including rejecting job candidates, terminating their employment, or other adverse workplace actions.
Harassment based on LGBTQ status also would be unlawful and subject to civil lawsuits. Finally, the bill would prevent employers from asking questions to job applicants about their sexual orientation or gender identity or expression.
What’s Next?
The bill now moves to the Democratic-controlled House of Representatives, where it will likely be passed with little modification. It would then head to the desk of Gov. Gretchen Whitmer. The governor publicly indicated she is firmly in support of the bill, calling the likely passage of the bill to be a “foundational moment” in the history of the state.
If signed into law by the governor, the law new would take effect 90 days later, so the time is now to prepare.
For many Michigan employers, today’s ruling may be somewhat of a non-story. After all, many employers already have policies prohibiting sexual-orientation discrimination and gender-identity discrimination in employment. Further, those subject to the federal Title VII law have been barred from such discriminatory acts since a 2020 Supreme Court ruling. Many employers have long since integrated workplace protections and policies to include LGBTQ applicants and workers.
But for Michigan employers that do not yet have antidiscrimination policies related to sexual orientation and gender identity, the time is now to take action. You should review and revise your workplace policies and practices, managerial training materials, employee antidiscrimination and anti-harassment training sessions, interview and hiring protocols, benefits offerings, and any other practice that may otherwise impact workers because of their sexual orientation and gender identity. You will want to make sure all of these changes are in place well ahead of the bill’s effective date, so the time to act is now.
William E. Altman is an attorney with Fisher Phillips in Detroit. © 2023. All rights reserved. Reprinted with permission.
