sexual orientation discrimination

The Michigan Civil Rights Commission has taken significant action to clarify that its state statute prohibiting discrimination in employment on the basis of sex (among other characteristics) extends to prohibit employment discrimination based on orientation and gender identity:

The Michigan Civil Rights Commission voted 5-0 to approve a statement legally interpreting the Elliott-Larsen Civil Rights Act’s ban on “discrimination because of . . . sex” to include discrimination against sexual orientation or gender identity . . .

The idea of an interpretive statement from the commission, initially requested by Equality Michigan last year, was revived after the 6th Circuit Court of Appeals ruled in favor of a transgender woman who said she was illegally fired by a funeral home in Garden City while transitioning from male to female . . .

The [Michigan Department of Civil Rights] will begin taking complaints related to sexual orientation or gender-based discrimination.

Regular readers of our blog will be familiar with this particular legal issue, as we have previously discussed the question of whether bans on sex discrimination necessarily also ban discrimination on the basis of sexual orientation and/or gender identity in the context of federal law.  This legal question is a hot topic in employment litigation in federal courts across the country.  Because of widely divergent outcomes in federal district and circuit courts across the country in addressing this question, we will likely have to wait until the U.S. Supreme Court weighs in to have a definitive interpretation of federal law.

Irrespective of the federal question, however, there appears to be a trend toward states considering this issue in the context of their own non-discrimination laws.  The Michigan Civil Rights Commission’s decision is similar to proposed guidance announced by the Pennsylvania Human Relations Commission from late 2017.  This development is important because a Supreme Court decision on this issue under federal law may not necessarily prove binding on states’ interpretations of state law.

We will, of course, continue to monitor this issue as it develops around the country.

Contract
Copyright: halfpoint / 123RF Stock Photo

(Many thanks to Christina, for her gracious invitation to join the blog as a regular contributor! -Brian)

In the wake of controversy over efforts in North Carolina and other states to roll back legal protections for lesbian, gay, bisexual, and transgender (“LGBT”) people, Pennsylvania’s taking a different approach.

On April 7th, Pennsylvania Governor Tom Wolf issued Executive Order 2016-05, hailing it as an effort to combat discrimination.  The Commonwealth’s Department of General Services will now require contractors and grantees to agree not to discriminate in hiring, promotion, or other labor matters, or in the award of subcontracts or supply contracts.

Specifically, contractors and grantees will be required to agree not to discriminate on the basis of race, gender, creed, color, sexual orientation, or gender identity or expression.  The EO defines sexual orientation as heterosexuality, homosexuality, or bisexuality.  Gender identity or expression is defined as an individual’s gender-related identity, appearance, mannerisms, expression, or other gender-related characteristics, regardless of the individual’s sex at birth.

Notably, EO 2016-05 requires agency heads to recommend to the Secretary of General Services such sanctions “as may be appropriate” for entities that fail to comply with Commonwealth contracting programs.  Coupled with provisions that establish compliance, reporting, and audit systems, this EO suggests the Wolf administration intends to pursue enforcement through a broad variety of executive branch tools—with a particular eye toward addressing discrimination on the basis of sexual orientation or gender identity.

The Department of General Services will also be charged with ensuring that contractors and grantees have a written sexual harassment policy and that the contractor’s or grantee’s employees are aware of that policy.  These requirements are expressly made a condition of payment or funding—heightening the urgency for contractors and grantees to review their current policies and employee training programs on non-harassment and non-discrimination.

As a result of this EO, Commonwealth contractors/grantees and potential contractors/grantees should contact knowledgeable employment counsel to ensure compliance, as the Department of General Services begins to set up enforcement efforts.