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Detroit, Mich. —June 5, 2014— At the 2014 Detroit Regional Chamber’s Mackinac Policy Conference, Gov. Rick Snyder announced his support for changing Michigan’s Elliott-Larsen Civil Rights Act to add sexual orientation and gender identity to the current list of prohibited grounds for discrimination, which includes religion, race, color, national origin, age, sex, height, weight, and marital status. This push for change in state law would greatly impact employers by making it illegal to discriminate against an employee because he or she is gay or transgender and extend employment protection to lesbian, gay, bisexual and transgender (LGBT) employees.

Regardless of religious or political beliefs, an employer would not be allowed to fire, refuse to hire or otherwise discriminate against an individual solely because of that person’s sexual orientation or gender expression if Michigan’s law changes, according to Monica Howard, senior attorney with Detroit-based employment law firm Nemeth Law, P.C.

“Because of the current legal uncertainty regarding workplace discrimination for LGBT employees, the Equal Employment Opportunity Commission (EEOC) has identified LGBT protection as one of its top enforcement priorities in its 2012-2016 Strategic Enforcement Plan,” Howard said. “Even if Gov. Snyder had not addressed the topic of extending legal protection to the LGBT community, changes might still be inevitable for employers given the scrutiny the EEOC is already placing on the lack of workplace protection for LGBT employees. ”

In 2012, the EEOC made a groundbreaking decision to expand the interpretation of Title VII, ruling that discrimination based on gender identity, change of sex and/or transgender status (also known as gender identity discrimination) violates Title VII’s ban on sex discrimination in employment. This ruling marks the first time the EEOC held that transgender individuals are protected from discrimination under federal law.

Although Congress has yet to enact a law that specifically protects against discrimination of LGBT individuals, the EEOC’s ruling on what it considers sex discrimination will likely provide some legal recourse for LGBT employees if they are fired or denied a job because of their LGBT status.

Given the swift movement in the LGBT protection environment, employers should consider updating their non-discrimination and harassment policies to include “sexual orientation” and “gender identity” and conduct training for hiring officers and supervisors to ensure they do not violate the EEOC’s interpretation of Title VII.

“There have been nearly 100 cases involving sexual orientation and/or gender identity filed in federal court since 2012. The specific numbers from the EEOC are not available because the agency does not tally gender identity and sexual orientation claims separately from other sex discrimination claims,” Howard said. “However, given the priority placed on LGBT protection by the EEOC, and now with Gov. Snyder’s support, there is likely to be an uptick in the number of discrimination cases filed in the immediate future. This increase could come from employees who previously feared their job would be in jeopardy if they were open about their sexual orientation and/or gender identity, as well as employees who had been discriminated against prior to having legal protection.”

About Nemeth Law, P.C.
Nemeth Law specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.