MICHIGAN LAWS BANNING
DISCRIMINATION OR PREFERENCE

[Ed. note: The constitutional amendment proposed by the Michigan Civil Rights Initiative bans discrimination or preference based on race, sex, color, ethnicity or national origin by the state in employment, education and contracting. However, discrimination or preference, on some or all of these bases, in the areas covered by the amendment, is already banned by the constitutional and statutory provisions below. What purpose, then, would be served by the amendment?

Under present law, the Michigan Civil Rights Commission is authorized to override statutory prohibitions on discrimination or preference based on race et al. The overrides are permitted whenever the commission decides they would help to correct the effects of past discrimination, to create equal opportunity, or to implement an affirmative action plan. This authority extends to the private as well as the public sector, and to other areas besides employment, education and contracting. Whenever the commission suspends one person's obligation not to discriminate, it necessarily suspends thereby another person's right not to be discriminated against. The MCRI amendment would reinforce Michigan's constitutional and statutory bans on discrimination or preference based on race, sex, color, ethnicity or national origin, in state employment, education and contracts, and presumably remove the Commission's authority to override these bans.

Quoted below are only laws whose bans on discrimination or preference extend to state employment, education, or contracting, the areas covered by the MCRI amendment. I have emphasized headers and section numbers in bold, and each mention of discrimination or preference (on some or all of the bases prohibited by the MCRI amendment) in bold italic. Each provision that overrides a ban on discrimination or preference is also in bold italic. Curtis Crawford]

CONSTITUTION OF MICHIGAN OF 1963

Art. 1 Sec. 2. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.

Art. 5 Sec. 29. There is hereby established a civil rights commission which shall consist of eight persons, not more than four of whom shall be members of the same political party, who shall be appointed by the governor, by and with the advice and consent of the senate, for four-year terms not more than two of which shall expire in the same year. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.

Art 8. Sec. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

Art. 11 Sec. 5 Par. 6. No person shall be appointed to or promoted in the classified service who has not been certified by the commission as qualified for such appointment or promotion. No appointments, promotions, demotions or removals in the classified service shall be made for religious, racial or partisan considerations.

ELLIOTT- LARSEN CIVIL RIGHTS ACT

AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status; to preserve the confidentiality of records regarding arrest, detention, or other disposition in which a conviction does not result; to prescribe the powers and duties of the civil rights commission and the department of civil rights; to provide remedies and penalties; to provide for fees; and to repeal certain acts and parts of acts.

The People of the State of Michigan enact:

ARTICLE I

Sec. 101. This act shall be known and may be cited as the "Elliott-Larsen Civil Rights Act."

Sec. 102. (1) The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.

ARTICLE 2 EMPLOYMENT

Sec. 202. (1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system.
(d) . . . As used in this subdivision, "institution of higher education" means a public or private university, college, community college, or junior college located in this state.
(2) This section shall not be construed to prohibit the establishment or implementation of a bona fide retirement policy or system that is not a subterfuge to evade the purposes of this section.
(3) This section does not apply to the employment of an individual by his or her parent, spouse, or child.

Sec. 203. An employment agency shall not fail or refuse to procure, refer, recruit, or place for employment, or otherwise discriminate against, an individual because of religion, race, color, national origin, age, sex, height, weight, or marital status; or classify or refer for employment an individual on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status.

Sec. 204. A labor organization shall not:
(a) Exclude or expel from membership, or otherwise discriminate against, a member or applicant for membership because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify membership or applicants for membership, or classify or fail or refuse to refer for employment an individual in a way which would deprive or tend to deprive that individual of an employment opportunity, or which would limit an employment opportunity, or which would adversely affect wages, hours, or employment conditions, or otherwise adversely affect the status of an employee or an applicant for employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Cause or attempt to cause an employer to violate this article.
(d) Fail to fairly and adequately represent a member in a grievance process because of religion, race, color, national origin, age, sex, height, weight, or marital status.

Sec. 205. An employer, labor organization, or joint labor-management committee controlling an apprenticeship, on the job, or other training or retraining program, shall not discriminate against an individual because of religion, race, color, national origin, age, sex, height, weight, or marital status, in admission to, or employment or continuation in, a program established to provide apprenticeship on the job, or other training or retraining.

Sec. 206. (1) An employer, labor organization, or employment agency shall not print, circulate, post, mail, or otherwise cause to be published a statement, advertisement, notice, or sign relating to employment by the employer, or relating to membership in or a classification or referral for employment by the labor organization, or relating to a classification or referral for employment by the employment agency, which indicates a preference, limitation, specification, or discrimination, based on religion, race, color, national origin, age, sex, height, weight, or marital status.
(2) Except as permitted by rules promulgated by the commission or by applicable federal law, an employer or employment agency shall not:
(a) Make or use a written or oral inquiry or form of application that elicits or attempts to elicit information concerning the religion, race, color, national origin, age, sex, height, weight, or marital status of a prospective employee.
(b) Make or keep a record of information described in subdivision (a) or to disclose that information.
(c) Make or use a written or oral inquiry or form of application that expresses a preference, limitation, specification, or discrimination based on religion, race, color, national origin, age, sex, height, weight, or marital status of a prospective employee.

Sec. 207. An individual seeking employment shall not publish or cause to be published a notice or advertisement that specifies or indicates the individual's religion, race, color, national origin, age, sex, height, weight, or marital status, or expresses a preference, specification, limitation, or discrimination as to the religion, race, color, national origin, age, height, weight, sex, or marital status of a prospective employer.

Sec. 208. A person subject to this article may apply to the commission for an exemption on the basis that religion, national origin, age, height, weight, or sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise. Upon sufficient showing, the commission may grant an exemption to the appropriate section of this article. An employer may have a bona fide occupational qualification on the basis of religion, national origin, sex, age, or marital status, height and weight without obtaining prior exemption from the commission, provided that an employer who does not obtain an exemption shall have the burden of establishing that the qualification is reasonably necessary to the normal operation of the business.

Sec. 209. A contract to which the state, a political subdivision, or an agency thereof is a party shall contain a covenant by the contractor and his subcontractors not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex, height, weight, or marital status. Breach of this covenant may be regarded as a material breach of the contract.

Sec. 210. A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan.

Administrative rules: R 37.27 et seq. of the Michigan Administrative Code.

Sec. 211. Notwithstanding any other provision of this article, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system.

ARTICLE 4 EDUCATION

Sec. 401. As used in this article, "educational institution" means a public or private institution, or a separate school or department thereof, and includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, local school system, university, or a business, nursing, professional, secretarial, technical, or vocational school; and includes an agent of an educational institution.

Sec. 402. An educational institution shall not do any of the following:
(a) Discriminate against an individual in the full utilization of or benefit from the institution, or the services, activities, or programs provided by the institution because of religion, race, color, national origin, or sex.
(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, or privileges of the institution, because of religion, race, color, national origin, or sex.
(c) For purposes of admission only, make or use a written or oral inquiry or form of application that elicits or attempts to elicit information concerning the religion, race, color, national origin, age, sex, or marital status of a person, except as permitted by rule of the commission or as required by federal law, rule, or regulation, or pursuant to an affirmative action program.
(d) Print or publish or cause to be printed or published a catalog, notice, or advertisement indicating a preference, limitation, specification, or discrimination based on the religion, race, color, national origin, or sex of an applicant for admission to the educational institution.
(e) Announce or follow a policy of denial or limitation through a quota or otherwise of educational opportunities of a group or its members because of religion, race, color, national origin, or sex.
Admin Rule: R 37.1 et seq. of the Michigan Administrative Code.

Sec. 403. The provisions of section 402 related to religion shall not apply to a religious educational institution or an educational institution operated, supervised, or controlled by a religious institution or organization which limits admission or gives preference to an applicant of the same religion.

Sec. 404. The provisions of section 402 relating to sex shall not apply to a private educational institution not exempt under section 403, which now or hereafter provides an education to persons of 1 sex.

Sec. 404a. (1) This article does not prohibit the board of a school district or intermediate school district or the board of directors of a public school academy from establishing and maintaining a single-gender school, class, or program within a school as provided under sections 475 and 1146 of the revised school code, 1976 PA 451, MCL 380.475 and 380.1146.
(2) As used in this section, "school district", "intermediate school district", and "public school academy" mean those terms as defined in the revised school code, 1976 PA 451, MCL 380.1 to 380.1852.
History: Add. 2006, Act 348, Imd. Eff. Sept. 1, 2006

ARTICLE 6 [Powers]

Sec. 602. The [civil rights] department shall:
(c) Receive, initiate, investigate, conciliate, adjust, dispose of, issue charges, and hold hearings on complaints alleging a violation of this act, and approve or disapprove plans to correct past discriminatory practices which have caused or resulted in a denial of equal opportunity with respect to groups or persons protected by this act.
(e) Cooperate or contract with persons and state, local, and other agencies, both public and private, including agencies of the federal government and of other states.
(f) Monitor the awarding and execution of contracts to ensure compliance by a contractor or a subcontractor with a covenant entered into or to be entered into pursuant to section 209.

ARTICLE 7 [Prohibitions]

Sec. 705.
(1) This act shall not be construed as preventing the commission from securing civil rights guaranteed by law other than the civil rights set forth in this act.
(2) This act shall not be interpreted as restricting the implementation of approved plans, programs, or services to eliminate discrimination and the effects thereof when appropriate.
(3) This act shall not be interpreted as invalidating any other act that provides programs or services for persons covered by this act.

OTHER LAWS

COUNTY EMPLOYEES' CIVIL SERVICE SYSTEM (EXCERPT)

38.409 Civil service commission; personnel director, assistants and employees; selection, compensation; contracts for services to municipalities; conditions of employment; discrimination prohibited.

Sec. 9. The commission shall choose by competitive examination a personnel director upon a basis of education, technical knowledge of personnel work and knowledge of county government and its operation, and such other assistants and employees as may be necessary. The personnel director, who shall also act as chief examiner, shall hold no other public office except notary public, or be employed by the county or any other governmental agency or any board, commission or department thereof in any other capacity. The compensation of the personnel director and other assistants and employees shall be fixed by the commission subject to the approval of the board of supervisors. The personnel director shall act as secretary of the commission. The commission, if authorized by the board of supervisors and subject to their approval, may contract with cities, villages, townships or school districts within the county or with an adjoining county for such use and services of its examiners, clerks, offices and facilities of the county civil service system as may be requested. The civil service commission shall provide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the county service, and for such other matters pertaining to the carrying out of the provisions of this act. No applicant shall be required by any rule or regulation of the commission to submit photographs for the purpose of identification nor shall any such applicant be discriminated against by reason of race, color, creed or political affiliation.

TOWNSHIP CIVIL SERVICE SYSTEM (EXCERPT)

38.455 Civil service commission; personnel director, assistants and employees; selection, compensation; contracts for services; conditions of employment; discrimination prohibited.

Sec. 5. The commission shall choose by competitive examination a personnel director upon a basis of education, technical knowledge of personnel work, and knowledge of township government and its operation, and such other assistants and employees as may be necessary. The compensation of the personnel director and other assistants and employees shall be fixed by the commission subject to the approval of the township board. The personnel director shall act as secretary of the commission. The civil service commission of any township, if authorized by the township board and subject to its approval, may contract with a county, city or another township for the use and services of its examiners, clerks and offices and all the facilities of the civil service system. The civil service commission shall provide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the township service, and for such other matters pertaining to the carrying out of the provisions of this act. No applicant shall be required by any rule or regulation of the commission to submit photographs for the purpose of identification, nor shall any such applicant be discriminated against by reason of race, color, creed or political affiliation.

MUNICIPAL HEALTH FACILITIES CORPORATIONS ACT (EXCERPT)

331.1306 Board of trustees and subsidiary board; reorganization agreements; transfer of ownership or operation; . . . discrimination prohibited; . . .

Sec. 306. (1) Subject to applicable licensing and other regulatory requirements, and subject to any approvals required under subsections (5) and (6), each board of trustees and subsidiary board may enter into and carry out agreements for the reorganization and the transfer of ownership or operation of some or all of its health care facilities and related assets or health services to a nonprofit health care organization or to a public authority on behalf of a nonprofit health care organization by sale, installment sales agreement, land contract, lease, lease with an option to purchase, sublease, contract, option, or by any other means.
. . . .
(4) Any board of trustees or subsidiary board transferring health care facilities pursuant to this section shall require, for a term of not less than 30 years, that use of the health care facilities transferred shall be open to all regardless of race, religion, color, national origin, sex, age, disability, marital status, sexual preference, or source of payment, and that the nonprofit health care organization acquiring such health care facilities shall provide an equal opportunity for employment, without discrimination as to race, religion, color, national origin, sex, age, disability, marital status, or sexual preference.
. . . .