On July 28, 2022, the Michigan Supreme Court released its decision in Rouch World, LLC v. Department of Civil Rights, which represents a substantial victory for the LGBTQ+ community in terms of the protection now afforded under the Elliott-Larsen Civil Rights Act (ELCRA) resulting from this decision. The ELCRA is a far-reaching Act as Section 302 prohibits the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of . . . sex . . . .” MCL § 37.2302(a). This definition encompasses most aspects of daily public life, which now all explicitly prohibit discrimination against an individual based on their sexual orientation.
Rouch is a case that involved discrimination by two separate plaintiffs, Rouch World, LLC (an event center), and Uprooted Electrolysis, LLC (a hair removal center), who each respectively denied their services to LGBTQ+ individuals based on religious grounds. Rouch World, LLC, refused to allow a same-sex couple to be married at its venue due to the owner’s religious views. Uprooted Electrolysis, LLC similarly refused its services to a transgender woman. It must be noted that the gender discrimination claim at issue with Uprooted Electrolysis, LLC, was not appealed by the plaintiffs, so the ruling prohibiting discrimination on the basis of gender identity by the Court of Claims in Rouch World, LLC v. Michigan Department of Civil Rights, No. 20-000145-MZ (Dec. 7, 2020), stands as the Michigan Supreme Court did not address the issue in this opinion.
The Michigan Supreme Court strictly dealt with the issue of whether or not the ELCRA protects against discrimination based on sexual orientation in Rouch.
To come to its conclusion, the Court primarily relied upon Bostock v. Clayton County, which was the landmark case before the U.S. Supreme Court that held under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq., it is unlawful for an employer to discriminate against an individual on the basis of their sexual orientation or gender identity. Michigan Courts have long encouraged using federal precedent interpreting Title VII to guide interpretation of the ELCRA, since the ELCRA was modeled after Title VII of the Civil Rights Act.
Thus, in line with the reasoning in Bostock, the Michigan Supreme Court underwent an analysis of the plain meaning of the analogous statutory language. The Michigan Supreme Court decision in Rouch overrules the Michigan Court of Appeals decision in Barbour v. Department of Social Services, which had held that harassment or discrimination based upon a person’s sexual orientation is not protected under the ELCRA.
In rebutting the defenses to the discriminatory practices by the plaintiffs in Rouch, which included their argument that the intent of the legislature in 1976 was not to protect individuals on the basis of sexual orientation, the Court explained its rationale for the decision. Specifically, the Rouch Court explained that although the principal reason that motivated the 1976 Legislature to prohibit discrimination against individuals on the basis of sex was related to the preferential treatment of males to the detriment of females, that motivation does not restrict the Court from alternative applications of the plain statutory language.
In sum, the Michigan Supreme Court’s decision in Rouch provides strong protection for the LGBTQ+ community against discrimination based on an individual’s sexual orientation. While the Rouch opinion does not explicitly address gender identity discrimination under the ELCRA, the reasoning given by the Michigan Supreme Court would also strongly support the prohibition of discrimination on the basis of gender identity.
This leads to the conclusion that in the event the prohibition of discrimination based on gender identity is taken to the Michigan Supreme Court, the Court would be very likely to follow the ruling of the Court of Claims and provide even stronger protections for the LGBTQ+ community. While Title VII of the Civil Rights Act applies only to entities that employ fifteen or more employees, the ELCRA applies to entities that employ one or more employees.
As a result of this decision, organizations of all sizes should strongly consider taking swift action in reviewing and amending their anti-discrimination policies, as well as consider company-wide training, to ensure compliance with this landmark ruling by the Michigan Supreme Court.
Connect with Charissa C. Huang, attorney at Smith Haughey Rice & Roegge, on civil rights and employment matters.