Michigan Passes Amendment to Elliott-Larsen Civil Rights Act to Protect Abortion Rights

On May 17, 2023, Michigan Governor Gretchen Whitmer signed SB 147 into law, amending the Elliot-Larsen Civil Rights Act (“ELCRA”) to expand its protections from workplace discrimination to those who have abortions.  The law is expected take effect on March 31, 2024, ninety-one days after final adjournment of the Michigan Legislature’s 2023 Regular Session and will apply to any Michigan employer with one or more employees. This is the second time this year that the Michigan Legislature has amended ELCRA, joining SB 4 in early March 2023, which amended ELCRA to add protections for individuals based on their sexual orientation, and gender identity or expression.

SB 147 modifies ELCRA to ban employers from discriminating or retaliating against employees if they have received an abortion by:

• Expanding the law’s definition of “sex” by adding “termination of a pregnancy” and “related” medical conditions without qualifying language that had previously excluded “nontherapeutic” abortions; and

• Modifying the provision that prohibits discrimination against an individual because of pregnancy, childbirth, or related medical condition by adding “the termination of a pregnancy” and removing language that excluded most abortions in describing medical conditions.

ELCRA previously only protected individuals against employment discrimination if the abortion was to “save the life of the mother,” but SB 147 removes that language from the law. The removal of that language means that ELCRA’s protections now apply to anyone who terminates a pregnancy, regardless of rationale or medical condition.

In practice, SB 147 aligns Michigan law with the federal Pregnancy Discrimination Act, affording additional protections to people who have had or may have an abortion. 

In light of the ELCRA amendments, Michigan employers should review and update their policies, employee handbooks, and procedures to ensure compliance with the updated law. Attorneys at Epstein Becker & Green continue to monitor the legal developments following the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization, and have developed checklists and a 50-state survey of abortion laws to help your business assess what new policies and procedures you may need.