By: Collin H. Nyeholt, attorney at law
- Introduction – We Have Come a Long Way, but we Have a Long Way to Go.
There was a time not very long ago when homosexuality was treated as mental illness, deviancy, and criminality. In 1952, the American Psychiatric Association listed homosexuality as a mental disorder in the DSM-I. “Transgendered” individuals, persons who struggled with their gender identity or did not conform to gender roles, were viewed as suffering from a “disorder.” Laws targeted at homosexual sex practices, notably anti-sodomy laws, remained on the books in many states as late as 2003. With such threats to the very right to be homosexual, same-sex marriage was almost un-thought of, save for with derision and fear. In November of 1967, in an article entitled “Civil Rights and the Homosexual: A 4-Million Minority Asks for Equal Rights” reporter Webster Schott wrote that the right of homosexuals to marry was “high among the deviate’s hopes.” In 1996, Congress passed the Defense of Marriage Act (“DOMA”) which, according to the House Judiciary Committee, was intended “to reflect and honor a collective moral judgment and to express moral disapproval of homesexuality.”
We have come a long way since these days. The APA removed homosexuality from the 1973 version of the DSM. And, in 2013 the DSM-5 dropped the diagnostic label “gender identity disorder” in favor of the less stigmatizing, and more correct, term “gender dysphoria.” This recognized that “gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.” On June 26, 2015, the United States Supreme Court decided Obergefell v. Hodges. The High Court, in a 5-4 decision, recognized the right of homosexual persons to marry as a fundamental right protected by the Equal Protection Clause of the United States Constitution. This was a seismic shift in the way the law applies to members of the LGBTQ etc community. In one fell swoop, the DOMA was rendered unconstitutional. Due to the principles of federal supremacy, all of the 50 states must now recognize same-sex marriage. We have gone from viewing homosexuals and transgendered individuals as criminal deviants to members of a society whose rights to marry are protected as a fundamental constitutional right.
But, we have a long way to go. The law has changed, but the ideologies, attitudes, and beliefs behind the old ways remain. Change has not been received universally with open arms. The Obergefel decision itself was not unanimous; four of the nine members of the Court would have ruled the opposite. Even after, there has been considerable resistance in accepting this as the law of the land. In August of 2015 Kim Davis, the former Clerk for Rowan County, Kentucky defied a federal court order and refused to issue marriage certificates to gay couples. She has since, rightly, been voted out but this act of open defiance to the law is indicative of the deep rifts underlying religious groups’ acceptance or refusal thereof. Indeed, many religious groups have gone so far as to state that the country’s acceptance of gay marriage is “religious persecution.”
This raises some very legitimate concerns about what happens in the workplace. Can someone get a lawful same sex marriage on Sunday, and then be fired on Monday for being gay? If a transgendered individual announces their transition to their boss, can their coworkers harass them with impunity? What rights do people have against discrimination at work because of their sexual orientation or transitioning status? Read on.
- A Primer on Employment Law
To answer these questions, we need to discuss some basics of employment law. The law of the land is “employment at-will.” “At-will employment” means that an employer can hire, fire, promote, or demote for any reason or no reason at all. This is the default rule. Every state, Michigan included, has some version of “at-will” employment on the books. When we talk about employment lawsuits -“wrongful termination,” “failure to promote,” “hostile work environment”- what we are really talking about are exceptions to the “at-will” employment doctrine.
In some certain circumstances, the law has decided that certain reasons for taking adverse actions against an employee should not be permitted. We pass laws that say “thow shalt not take actions against your employees” for certain specific, delineated reasons. These certain reasons we call “protected statuses.” Race, for instance, is a “protected status.” An employer is not allowed to fire or harass you because of your race. Discrimination based on a “protected status” is an exception to “at-will.” Meaning, if you fit a protected status, and you can prove your employer did something bad to you based on your protected status, you can sue them over it. If you can’t prove the mistreatment was based on a protected status, “at-will” applies and you cannot.
“Hostile work environment” claims, by the way, fall under the “at will” doctrine. Courts have long held that they will not be general arbiters of civility in the employment arena. Meaning, you cannot sue just because people are mean to you at work. You have to prove that they are harassing you because of a protected status. If you can prove that you’re subjected to a environment rife with discrimination and ridicule because of your membership in a protected class, then you can sue for “hostile work environment.” Otherwise, you cannot.
Basically, the “at-will” concept means that your boss is allowed to be as mean, nasty, and unfair to his employees as he wants, so long as he is not being mean, nasty, and unfair to you based on a protected status. This has been referred to, colloquially, as the “Vince Lombardi Rule” in honor of the notoriously acerbic management style of this famous football coach.
So, what exactly are these “protected statuses?” Each statute gives a specific list of things that cannot be a basis for mistreatment or discrimination at work. For instance, federal Law, Title VII of the Civil Rights Act of 1964, says that
[i]t shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment [or] to limit, segregate, or classify his employees or applicants for employment in any way which would deprive him or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee […] because of such individual’s race, color, religion, sex, or national origin. 42 USC § 2000e-2(a).
Under Title VII, then, race, color, religion, sex, and national origin are “protected statuses.” If your boss fires you because you are African American, that’s a Title VII violation (discrimination based upon race). If your coworkers harass you every day because you’re Swedish and HR doesn’t stop them, even though it’s affecting your work performance, that’s a Title VII violation (hostile work environment based on national origin). What if your boss fires you because he doesn’t like that you wear a lot of Abercrombie and Fitch? Clothing choice is not a protected status, so you would not have a claim under Title VII. If you’re harassed, fired, or discriminated against at work for any reason other than race, color, religion, sex, or national origin, Title VII doesn’t apply and you can’t sue under Title VII.
Title VII has an additional limitation to it in that it only applies to people who employ more than 15 employees, and does not apply to the United States or most federal governmental agencies.
Michigan Law, the Elliott-Larsen Civil Rights Act says that an employer shall not discriminate because of “religion, race, color, national origin, age, sex, height, weight, or marital status.” You will notice that the ELCRA restates the Title VII sex, race, color, religion, and national origin protected statuses and lists age, height, weight, and marital status. So, if you’re harassed or discriminated against based on sex, race, color, religion, or national origin you potentially have a claim under Title VII and the ELCRA. But, if you’re discriminated against based on your age, height, weight, or marital status, you have a claim under the ELCRA but not under Title VII.
The ELCRA is limited because it applies only to Michigan employers, Michigan employees, and Michigan employment actions. But, the ELCRA is broader than Title VII in that it applies to employers who employ as few as one employee as opposed to Title VII’s 15. You can also sue individual managers who discriminate under the ELCRA, but not under Title VII.
There are a number of other statutes that lay out “protected status” for various reasons. 42 USC § 1981 prohibits any employer, regardless of size, from discriminating based on race only. Race is a protected status under Section 1981. Under Michigan’s Whistleblower’s Protection Act, an employer can’t fire you if you “report or [are] about to report a violation of a law.” Both the federal Americans with Disabilities Act and the State of Michigan Persons with Disabilities Civil Rights Act prohibit discrimination based on disability. The list goes on.
The question we have to ask, in looking at whether someone is protected from at-work discrimination based on sexual orientation or gender identity is whether sexual orientation and gender identity are protected statuses under an applicable civil rights statute. If sexual orientation and gender identity are protected statuses, you can sue if you are discriminated against based on these statuses. If they are not a statutorily protected status, your employer’s decision to terminate you based upon that is “at will” and you have no cause of action. Obviously, whether sexual orientation and gender identity are a “protected status” under the law is a fairly important question.
- Are Sexual Orientation and Gender Identity “Protected Statuses” in Michigan?
Are “sexual orientation” or “gender identity” protected statuses in the State of Michigan? The answer, even in the wake of Obergefel, is not as obvious as one would think. In Michigan, there is no statute that applies to private employers that specifically lists sexual orientation or gender identity as protected statuses. There are, however, some statutes that come close: 42 USC § 1983, Title VII of the Civil Rights Act, and Michigan’s Elliott-Larsen Civil Rights Act. As of today, July 2019, there is still considerable uncertainty as to whether the law prohibits an employer from discriminating against its employees based on sexual orientation or gender identity.
- Government Employees are Protected by 42 USC § 1983 from Discrimination based on Sexual Orientation.
First, let’s look at government employees. State and federal employees. Michigan State Troopers. Postal workers. TSA officials. Public school teachers. Etc. There is a strange quirk to the law that governs governmental employment discrimination. 42 USC § 1983 is a civil rights statute that lets you sue a person who “under color of State law” violates a right conferred by the constitution and laws of the United States to be sued for the violation. When a government staffing director fires a government employee for discriminatory reasons, they violate the due process and equal protection clauses of the Constitution. Therefore, a government employee who is terminated for discriminatory reasons may use 42 USC § 1983 to sue for wrongful termination.
Not all Section 1983 equal protection claims are created equal (ironically). In equal protection cases, we don’t talk about “protected status,” we talk about “suspect classes” affected by a particular employment decision. If a governmental employment decision affects a “suspect class” court applies “strict scrutiny” to the decision. In that case, the government has to come up with a very good reason for the decision it made, and show that it was not aimed at discrimination. If the decision does not affect a “suspect class” the court applies “rational basis” review. Under “strict scrutiny” the decision only survives if the government can show a very compelling reason for what it did. Under “rational basis” the government need only articulate some reason for what it did.
This distinction matters. It can make the difference between winning a Section 1983 wrongful termination claim and losing it. In Massachusetts Board of Retirement v Murgia, a member of the Massachusetts State Police was “automatically retired” on his 50th birthday. He sued under Section 1983, saying the decision to force him out because of his age was a violation of due process. The case made its way up to the Supreme Court. The Court found that being over the age of 50, for due process purposes, was not a “suspect class.” It therefore applied “rational basis” review to the decision to force the guy into retirement, accepted the mealy-mouthed justification the Board of Retirement put forward, and upheld dismissal of his claim. If the Court had found age over 50 to be a “suspect class” they would have applied “strict scrutiny” to the decision, and Mr. Murgia probably would have won his case.
Before Obergefel, same sex marriage was not a suspect class. If a government staffing director wanted to fire a government employee for being in a homosexual marriage, the Court would apply “rational basis” review to the decision and they would likely lose. With the Obergefel decision, homosexual marriage became a “suspect class” entitled to “strict scrutiny” review. Now, firing a governmental worker for being in a gay marriage is very actionable.
To be clear, Obergefele was a due process decision. It held that there is a fundamental right, protected by the Due Process clause of the constitution, to same sex marriage. This means the government cannot discriminate against you based on having a same-sex marriage. It said absolutely nothing about discrimination by private companies or other individuals.
After Obergefele, a governmental employee can use Section 1983 to sue for employment discrimination based on same sex marriage and, probably, sexual orientation and gender identity. The trouble is, Section 1983 is applicable only where the discriminatory employment practices involve state actors. Meaning, government workers like a Michigan State Policeman, a postal worker, a public school teacher can sue under 1983 if they are discriminated against based on sexuality and gender identity. But, someone who works for Walmart, Hobby Lobby, or Starbucks could not file suit under 1983 because the statute doesn’t apply to private employers. You need a different statute for private employers.
- Title VII, at the moment, protects people who work for larger Michigan employers. However, this may change.
Title VII applies to private employers that employ 15 or more people. As it stands today, gender identity and sexual orientation are protected statuses under Title VII in our federal Circuit, the Sixth Circuit. That may change.
Title VII prohibits discrimination based on a list of protected statuses, including “sex.” Does “discrimination based on sex” include discrimination based on sexual orientation or gender identity status? Before Obergefele, the answer was probably not. Generally, courts interpreted discrimination based on sex to be rigidly limited as discrimination specifically because someone is a man or a woman. There was a bit of wiggle room to that. In a 1989 decision, Price Waterhouse v. Hopkins, the US Supreme Court held that “because of sex” included gender stereotypes. If a lesbian were fired for “not being feminine enough” or a gay man were fired for being “too effeminate” he or she could sue, not for discrimination because of sexual orientation, but because of sexual stereotyping.
That wasn’t helpful, though, because many courts put a moat around Price Waterhouse and found it only applied specifically to gender stereotyping and refused to extend it more general to homophobia in general. Here’s an example. Employer A fires a gay worker and testifies “Men have sex with women. Having sex with another man is, just, unmanly. I fired him because I only want real men in this company.” That would be a violation of Title VII under Price Waterhouse violation because he’s saying the gay worker is not fitting a gender stereotype of what a “real man” should be. Now, consider Employer B. Employer B testifies “I fired her because she is a lesbian. Gay people disgust me, so I fired her.” Under most pre-Obergefel interpretations of Price Waterhouse, Employer B would be 100% within Title VII. While he’s expressing blatant discrimination because of his employee’s sexual orientation, he’s not hedging that discrimination on nonconformance with a preconceived gender stereotype.
Pre-Obergefel, we saw this type of distinction pretty commonly. Courts were aware that Price Waterhouse said Title VII prevented gender stereotyping, but were very careful not to extend it all the way treating sexual orientation as a protected status. A lot of people were straight up discriminated against because of their sexual orientation during this period of time and were not able to do anything to remedy it. After Obergfele, there has been a wave of reconsideration in the federal courts in this respect. In 2017, the Seventh Circuit held that Title VII’s definition of discrimination based upon sex did include sexual orientation. In March of 2018, the Sixth Circuit Court of Appeals considered a claim involving a transgendered woman who was fired from her position at a funeral home after announcing her intention to begin dressing as the opposite sex to her boss. In this case, the Sixth Circuit invoked the Price Waterhouse precept that Title VII prohibits “gender stereotyping” and, therefore, prohibited discrimination when a transitioning female wanted to dress as a male. The Sixth Circuit took this even a step further and held that Title VII’s prohibition on discrimination “because of sex” includes discrimination because of transgender and transitioning status. The Sixth Circuit’s decision is binding upon all courts deciding Title VII cases in Kentucky, Michigan, Ohio, and Tennessee. The Supreme Court has granted certiorari to this case, which means it will hear oral argument and decide whether this interpretation of Title VII shall remain or not. If the Supreme Court reverses the Sixth Circuit, every state in the United States will have to rule that Title VII does not apply to discrimination based on transgendered or transitioning status.
As of today, transgendered and transitioning status is protected under Title VII. If you are discriminated against for being transgendered, or transitioning, you may sue your employer for violation of Title VII. This may change, depending on what the Supreme Court does when they take up this issue.
- The Elliott-Larsen Civil Rights Act may end up protecting employees of smaller companies from discrimination based on their sexual orientation or gender identity. We’re not sure yet.
The trouble with Title VII is it only applies to employers that have 15 or more employees. It does not extend all the way to small companies. Michigan’s antidiscrimination law, the Elliott-Larsen Civil Rights Act extends all the way to employers of one or more employee. And it, like Title VII, does prohibit discrimination based upon sex. But it does not, on its face, explicitly protect against discrimination based upon sexual orientation or gender identity. As it stands, opinions vary wildly on whether it does or does not?
The ELCRA is similar to Title VII. Courts applying the ELCRA will sometimes look to Title VII cases to interpret the ELCRA, but they do not have to. In 2018, former Michigan Attorney General Bill Schuette opined that the ELCRA’s prohibition on discrimination “because of sex” does not include discrimination based on sexual orientation or gender identity. In 2019, current Michigan Attorney General Dana Nessel was asked to render an opinion on whether this was so. She found that the earlier decision may not be viable and the ELCRA may prohibit such discrimination but deferred from reaching any conclusion, in light of pending cases before the US Supreme Court. Even if she had given an opinion, “an opinion of the Attorney General is not a binding interpretation of law which courts must follow” and so the courts would be free to reach a different conclusion.
Senate Bill 351 and House Bill 4688 have been introduced to include in Michigan’s ELCRA as “protected classes” sexual orientation and “gender expression.” As of July 2019, the Michigan Legislature has not voted on these amendments. If passed, the ELCRA would unequivocally protect against discrimination based on sexual orientation and gender identity.
The bottom line is, as of today, we cannot tell whether a court considering a claim of gender identity or sexual orientation discrimination under Michigan law would, or would not, consider the claim viable.
As it stands, the right to a same-sex marriage is protected, but the right not to be discriminated against at work based on sexual orientation and gender identity is still in question. We have seen some broad strides in the law. And, the trend seems to be a move towards protection of gender identity and sexual orientation. Over the next few months, we can expect some clarification on this question from the Michigan Legislature and the US Supreme Court.
About the Author
Collin Nyeholt is an Associate Attorney at the Law Offices of Casey D. Conklin. He is licensed in the State of Michigan and is an eight-year practitioner of civil rights and employment discrimination law.
 See, eg Guy v. Travenol Laboratories, Inc., 812 F.2d 911 (4th Cir. 1987).
 Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988); Lautermilch v. Findlay City Schs., 314 F.3d 271, 275 (6th Cir. 2003).
 Massachusetts Bd. Of Retirement v. Murgia, 427 US 307 (1976).
 Age discrimination is prohibited by the Age Discrimination in Employment Act, 29 USC § 621 et seq. However, Murgia was not considered under that particular statute because of….reasons.
 Technically, Obergefele did not decide that sexual orientation or gender identity are protected statuses, it only decided that same-sex marriage is protected. But, the trend after Obergefel, however, seems to be that because homosexual marriage is a suspect class, sexual orientation and gender identity are also recognized as suspect classes. In the wake of Obergefel, employment discrimination claims based on homosexual marriage turned from very losable, to very winnable, under 42 USC § 1983.
 Daniels v. Board of Educ. of Ravanna School Dist., 805 F.2d 203 (1986).
 Price Waterhouse v. Hopkins, 490 US 228 (1989).
 Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1222 (10th Cir. 2007) (noting “this court’s reluctance to expand traditional definition of sex in the Title VII context” to include sexual orientation, despite Price Waterhouse.); Simonton v. Runyon, 232 F.3d 33, 35 (2d. Cir. 2000) (claim that being gay or lesbian constitutes nonconformity with a gender stereotyp is not cognizable under Title VII); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (noting that “all homosexuals, by definition, fail to conform to traditional norms in their sexual practices” but declining to hold that Title VII’s definition of “discrimination because of sex” protects against discrimination because of sexual orientation.)
 See, eg Zara v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018) (overruling Simonton v. Runyon, in light of Obergefele, and holding that sexual orientation is protected class under Title VII) Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (Seventh Circuit reversed several prior decisions and held that Title VII does prohibit discrimination based on sexual orientation).
 See, eg Elezovic v. Ford Motor Company, 472 Mich. 408 (2005) (noting that ELCRA caselaw may borrow from cases interpreting Title VII, but holding that ELCRA allows for individual liability of discriminating managers, despite the fact that Title VII does not, due to minute differences in statutory language.)
 OAG, 2017-2018, No. 7305 (July 20, 2018.)