1. law, govt and politics

Know Your Rights: LGBT Employment Discrimination
Overview:
If you’re dealing with harassment at work or were fired because of your sexual orientation or gender
expression or identity, there are some protections available. Under state law, there are limited protections
for some state employees. Under federal law, you might have a claim if you were discriminated against
on the basis of dressing, behaving, or having mannerisms not fitting into the stereotypical way that men
and women are “supposed to” behave. Some municipalities in Michigan also have non-discrimination
ordinances that cover employment.
State Law:

All state employers must comply with civil service regulations, which protect employees from
discrimination and harassment on the basis of sexual orientation.1 Explicit gender identity
protections are not available.

Advocates continue to work to amend the Elliot-Larsen Civil Rights Act to extend protections to
other employees.
Federal Law:
1

The federal prohibition on employment discrimination is found in Title VII of the Civil Rights
Act of 1964.2 Title VII does not prohibit discrimination on the basis of sexual orientation or
gender identity.

Title VII does prohibit sex discrimination. This includes discrimination on the basis of sex
stereotypes—how men and women are “supposed to” behave.3

The Equal Employment Opportunity Commission (EEOC)—the agency in the federal
government responsible for enforcing Title VII—has interpreted Title VII to bar discrimination
against transgender employees under a sex stereotyping approach.4 The federal circuit court that
covers Michigan has previously been receptive to these kinds of arguments when made by
transgender employees who are in the process of transitioning at work.5

The EEOC has also interpreted Title VII to bar discrimination against lesbian, gay, and bisexual
employees under a sex stereotyping theory.6 Cases brought in the federal circuit court that covers
Michigan are not generally successful.7
Michigan Civil Service Rules §§ 1-8.1, 1-8.3.
42 U.S.C. § 2000e-2
3
See Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (“we are beyond the day when an employer could
evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
4
See Mia Macy, EEOC Decision No. 0120120821, 2012 WL 1435995 (April 20, 2012).
5
See Smith v. City of Salem, 378 F.3d 566, 567–68 (6th Cir. 2004)
6
See Jason Veretto, EEOC Decision No. 0120110873, 2011 WL 2663401, at *3 (July 1, 2011); Cecile Castello,
EEOC Decision No. 0520110649, 2011 WL 6960810, at *1 (Dec. 20, 2011) (alteration in original). Unlike the Mia
Macy decision, supra note 5, these decisions are not decisions of the EEOC Commissioners.
7
See Vickers v. Fairfield Medical Center, 453 F.3d 757, 764 (6th Cir. 2006) (holding that the behavior that gives
rise to a sex stereotyping claim must occur inside the workplace, and that plaintiff’s perceived sexual orientation
arose from activities outside the workplace); Gilbert v. Country Music Ass’n, 432 F. App’x, 516 (6th Cir. 2011)
(“Gilbert’s allegations involve discrimination based on sexual orientation, nothing more. He does not make a single
allegation that anyone discriminated against him based on his ‘appearance or mannerisms’ or for his ‘gender non2

LGBT employees who conform with more stereotypical gender roles (e.g. effeminate men and
masculine women) have had some success in claiming that they were fired because they did not
conform with stereotypical gender roles.8 To be successful, the non-gender-conforming behavior
must take place in the workplace.9

Courts are more likely to dismiss cases where sexual orientation is directly implicated, and sex
stereotyping is not emphasized. Since Title VII does not yet explicitly cover sexual orientation,
courts discourage claims that “bootstrap” or force sexual orientation into Title VII.10
Local Ordinances:

Several municipalities in Michigan have local ordinances banning employment discrimination on
the basis of sexual orientation or gender identity. In Washtenaw County, both Ann Arbor and
Ypsilanti have such ordinances. For a complete listing of municipalities that provide protections,
see http://www.equalitymi.org/resources/cities-with-legal-protection.
Disclaimer: The content provided on this site is legal information, not legal advice. We make no claim as to
the accuracy of the information provided and are not responsible for any consequences that may result from reliance
on this information. Though the JTCC Know Your Rights Project will work to ensure that bulletins are up to date,
we cannot guarantee accuracy. For application of the law to your specific situation, you must consult a licensed
attorney. The information provided here is for informational purposes only and is not a substitute for legal advice or
representation by a licensed attorney. Use of this site does not create an attorney-client relationship.
conformity.’ For all we know, Gilbert fits every male “stereotype” save one—sexual orientation—and that does not
suffice to obtain relief under Title VII.”) (emphasis added).
8
See, e.g., Prowel v. Wise Business Forms, 579 F.3d 285, 287 (3d Cir. 2009); Nichols v. Azteca Restaurant
Enterprises, 256 F.3d 864 (9th Cir. 2001); Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (Casperson, J.,
concurring).
9
See Vickers, 453 F.3d at 764.
10
See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (“a gender stereotyping claim should
not be used to bootstrap protection for sexual orientation into Title VII.”); Vickers, 453 F.3d at 763–64 (citing
Dawson); Gilbert, 432 F. App’x at 520 (citing Vickers).