The Elliott-Larsen Civil Rights Act (ELCRA); Prohibition on discrimination in places of public accommodation; MCL 37.2302(a); Interpretive Statement 2018-1; Prohibition on discrimination “because of . . . sex”; Discrimination based on sexual orientation; Barbour v Department of Soc Servs; Bostock v Clayton Cnty; Michigan Department of Civil Rights (MDCR)

Holding that the ELCRA’s prohibition on discrimination “because of . . . sex” encompasses discrimination based on sexual orientation, the court overruled the Court of Appeals decision in Barbour and reversed in part the Court of Claims decision in this case. The action arose from defendant-MDCR’s investigation into two complaints. One alleged plaintiff-Rouch World discriminated on the basis of sex by declining to host a same-sex wedding at its facility. The other alleged that plaintiff-Uprooted Electrolysis discriminated on the basis of sex when it denied hair-removal services to a transgender woman. Plaintiffs jointly sued the MDCR and its then director, seeking “a declaratory judgment that sexual orientation and gender identity are not encompassed by the ELCRA’s prohibition of sex discrimination in places of public accommodation and an injunction prohibiting the continued investigation of the complaints filed against plaintiffs and the MDCR’s continued adherence to Interpretive Statement 2018-1.” The Court of Claims denied defendants summary disposition as to Rouch World, concluding it was bound by Barbour, in which the Court of Appeals held that “the ELCRA’s discrimination prohibition did not encompass sexual orientation.” But it granted defendants summary disposition as to Uprooted Electrolysis, noting that “Barbour did not concern gender-identity discrimination” and relying in part on the U.S. Supreme Court’s decision in Bostock. On appeal, the court noted that the cases on which the Court of Appeals relied in Barbour were overturned in Bostock, in which a majority of the U.S. Supreme Court “held that discrimination based on sexual orientation or gender identity is necessarily encompassed within discrimination because of sex.” The court found that the issue was “whether complainants who were denied service because of their sexual orientation would not have been so denied but for their sex.” It concluded that “a person’s sexual orientation necessarily implies conclusions about their sex,” and thus, discrimination “on the basis of sexual orientation necessarily constitutes discrimination because of sex. Accordingly, 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’ on the basis of sexual orientation constitutes discrimination ‘because of . . . sex’ and, therefore, constitutes a violation of the ELCRA under MCL 37.2302(a).” Remanded.

Dissenting, Justice Zahra concluded that the “best interpretation of the ELCRA, in light of the available evidence about its original public meaning, is that its prohibition on discrimination in public accommodations ‘because of . . . sex’ does not encompass a prohibition on sexual-orientation discrimination.” While he took “no issue with today’s outcome, because I do not recognize the manner in which it has been achieved by the majority opinion to be faithful to the judicial role,” he would affirm the Court of Claims’ decision.

Separately dissenting, Justice Viviano concluded that MCL 37.2302(a) “requires that the defendant maintain some prejudice, bias, animus, or belief about ‘sex’ or the other characteristics protected by the statute.” This is a threshold element he found was not met – “discrimination on the basis of one’s sexual orientation is not discrimination because of some prejudice, bias, animus, or belief about the male sex or the female sex.” Further, even if a but-for standard applied, a “proper application of the but-for test takes into account the defendant’s motive.”