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As Lansing dithers on LGBT discrimination, feds increase civil rights enforcement

BY Sunday, August 07, 2016 12:50pm

It’s an oft-heard line that you can be fired in Michigan just for being gay.

Indeed, Michigan’s Elliott-Larsen Civil Rights Act of 1976 does not include protection from discrimination based on sexual orientation or gender identity when it comes to housing, public accommodations and employment.

But attorneys and employer groups say that is beginning to change, despite failed attempts to include specific protections for the lesbian, gay, bisexual and transgender community under the state’s civil rights law.

A recent settlement in a case from Maryland may have implications for Michigan employers who could be pursued by the federal government for allowing discrimination involving gender identity and sexual orientation, according to a Grand Rapids attorney.

Earlier this year, the federal Equal Employment Opportunity Commission (EEOC) sued a Maryland company after a lesbian employee was fired following a complaint to management about sexual harassment in the workplace. 

The EEOC said it was a form of sex discrimination under Title VII of the federal Civil Rights Act of 1964 “because of her sexual orientation and/or her non-conformity with the employer’s gender-based expectations, preferences, or stereotypes,” according to the EEOC. The employer agreed to settle the case for $202,200 in damages.

“The settlement in Maryland will continue to embolden the EEOC to assert this theory (of a form of sex discrimination) throughout the country,” said Kurt Graham, a Grand Rapids attorney with Mika Meyers PLC

As part of a broader enforcement initiative that began last year, the EEOC is using the definition of sex discrimination to pursue cases in which LGBT employees are discriminated against in the workplace.

For states like Michigan that don’t have explicit protections for sexual orientation and gender identity, employers could still be found liable for discrimination against LGBT employees based on the EEOC’s interpretation.

“In Michigan, just because state law doesn’t say sexual orientation is protected, now a federal agency is using federal law to go around the country and take action against employers,” Graham said.  “As a warning, if you take action against one of those employees, a federal lawsuit may end up against you.”

Jay Kaplan, staff attorney with the American Civil Liberties Union of Michigan’s LGBT Project, agreed with that assessment. 

“Absolutely, this should provide notice to employers that even if you don’t have a policy that explicitly prohibits discrimination based on sexual orientation … you can still be liable if you discriminate under the EEOC theory of sex discrimination,” Kaplan said. 

‘NOT SURPRISING AT ALL’

LGBT employees who believe they were discriminated against based on their sexual orientation can file a complaint with the EEOC, though the agency may not necessarily take legal action based on the circumstances. Two other cases — in Florida and Minnesota — have been settled in the past 15 months, and four more cases are pending.

One of the pending cases is from Michigan, in which a transgender employee at a funeral home was fired in 2013 after notifying management that she was transitioning from male to female.

According to the EEOC, the federal district court “acknowledged that even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’”

While the Michigan case is ongoing, Graham said the issue is still in an area of legal uncertainty among federal courts and a ruling could ultimately come from the U.S. Supreme Court. But employers may choose to “get out in front” of the issue by adding sexual orientation to their existing discrimination policies, he said.

Discrimination based on sexual orientation may include a firing, demotion, transfer to a less desirable position, pay cut, layoff or some other “adverse employment action,” Graham said.

Jason Reep, director of learning and inclusion at The Employers’ Association in Grand Rapids, said the recent court settlements are “not surprising at all” based on enforcement actions being taken by the EEOC.

“I’m telling employers quite a bit that the interpretation the EEOC is taking is protecting groups of people who weren’t protected before and they need to make sure — whether it’s in a listed policy or not — behaviors are appropriate,” Reep said. “We’ve been trying to prepare employers for it.

“This absolutely will reduce the concern or belief that you have no protection in Michigan based on sexual orientation or gender identity.”

Reep said The Employers’ Association works with companies on surveys about the workplace environment and analyzes compensation plans across sex. 

“Sometimes we can find discrimination that might exist there,” he said. “We’re asking questions to make sure inappropriate practices aren’t in place at the employer, even on accident.”

LEGISLATIVE REMEDIES?

While executive orders have added some protections in certain employment situations, the push to protect LGBT workers has been a years-long fight in Michigan, with failed attempts through legislative and ballot initiative processes.

But increasingly, Michigan’s business community has advocated for adding LGBT civil rights protections into state law. Such protections would make Michigan a more welcoming place for employees, supporters argue.

Even though the EEOC is pursuing these cases, LGBT advocates say explicit protections in state law are still needed.

Kaplan said Title VII only covers employers with 15 or more employees, meaning workers at small businesses may not be covered. Additionally, EEOC cases are dealing only with employment. 

“We haven’t seen a lot of federal cases involving issues with housing,” Kaplan said.

Absent clear protections in Michigan, attorney Graham said the EEOC’s pursuit of cases is a positive sign for LGBT advocates here.

“I don’t see anything getting done (legislatively) in the short term at the state level,” Graham said. “But if more lawsuits are successful, maybe there will be more debate in Lansing that employees are getting protections under federal law.

“As the business community gets more protective of individuals’ rights anyway, I think it will be a combination of federal initiatives making more progress and businesses saying these protections are the right thing to do.”

Reep of The Employers’ Association said as attitudes change and court rulings are handed down, Michigan employers “should take it just as serious as they’d take all other forms of discrimination and harassment.” 

“Any way people are harassing people at work is inappropriate,” he said.  

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