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Nessel: Michigan Civil Rights Commission Not Bound by Schuette Opinion on Elliott-Larsen Civil Rights Act

LANSING - While declining to issue a formal opinion, the office of Attorney General Dana Nessel today told the Michigan Civil Rights Commission it is not bound by a Schuette-era opinion that said the LGBT community is not protected by the Elliott-Larsen Civil Rights Act.

The guidance was in response to an opinion request submitted earlier this year by Michigan Civil Rights Commission Chair Alma Wheeler Smith. The Commission’s request of the Attorney General to reconsider her predecessor’s July 20, 2018 opinion that the LGBT community is not protected by the Elliott-Larsen Civil Rights Act followed Nessel’s February 1, 2019 appearance before the Commission, where she emphasized her fundamental disagreement with Schuette’s legal interpretation of the law.

In a letter to Wheeler, Nessel’s Chief Legal Counsel Suzanne Sonneborn provided informal guidance to the Commission, saying it does not need to follow OAG No. 7305.

Acknowledging the office’s longstanding policy not to issue a formal opinion “with respect to issues that are pending in, or likely to become the subject of, litigation,” Sonneborn noted that, after the Commission sought Nessel’s opinion, the United States Supreme Court decided on April 22, 2019 to review a case involving a Michigan funeral home employer’s actions, RG & GR Harris Funeral Homes, Inc v Equal Employment Opportunity Comm, 139 S Ct 1599 (2019), and to consider whether the federal civil rights law, Title VII of the Civil Rights Act of 1964, prohibits gender-identity and sexual-orientation discrimination.

This circumstance, Sonneborn concluded, “raises a question of federal law which was contemplated in OAG No. 7305 and Michigan courts in considering the issue” and therefore “the Commission is not bound by OAG No. 7305.”

Sonneborn also provided assurance to the Commission on behalf of Nessel that her office “will provide the Commission with appropriate legal support and representation” in the same way that the Attorney General and her staff has always represented the state and its agencies and public officials.

“I urge the Commission to continue its important mission to investigate allegations of unlawful discrimination and to secure the equal protection of civil rights without such discrimination, and I look forward to working together with the Commission in doing so,” said Nessel. “The residents of our great state deserve nothing less – and this is why I will also be filing an amicus brief in Harris supporting the position that Title VII prohibits gender-identity and sexual-orientation discrimination."