Is a provision of Michigan's Civil Rights Act unconstitutional?

By Louis Eble

The Michigan Elliott-Larsen Civil Rights Act of 1966 (“ELCRA”) is Michigan’s version of the federal Civil Rights Act of 1964, but with a broader scope of protection. The ELCRA prohibits discrimination on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status, in employment, housing, public accommodations, public service and education.  

The ELCRA was a milestone development and one of the most comprehensive civil rights laws at the time of its enactment. There is, however, one provision that may raise constitutional concerns. Section 37.2207 of the ELCRA provides, in relevant part, that “[a]n 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 . . . .”

Prohibiting an individual who is seeking employment from publishing anything that even indicates the person’s religion, race, sex, etc. is not only impractical in in today’s social networking world – think LinkedIn –  it is likely a violation of the right to free speech guaranteed by the First Amendment to the United States Constitution.  California recently passed a statute, AB 1687, that prohibits the Internet Movie Database (“IMDb”) from publishing information about the ages of people in the entertainment industry. The purpose of the statute is to prevent age discrimination in Hollywood. The statute went in to effect on January 1, 2017. IMDb recently filed a lawsuit in federal court arguing that the statute unconstitutionally restricts free speech.  

On February 22, 2017, U.S. District Court Judge Vince Chhabria, nominated by President Barack Obama, issued an order granting a preliminary injunction preventing enforcement of the California statute. Chhabria did not mince words when granting the preliminary injunction, stating that “it’s difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content.” While Chhabria did note that preventing age discrimination was a compelling goal, he did not feel that AB 1687 could “meaningfully combat discrimination at all.” Instead, Chhabria suggested more vigorous enforcement of antidiscrimination laws.  While the IMDb case has not yet been decided on its merits, the federal court would not have enjoined enforcement of the California statute unless Judge Chhabria believed that there was a likelihood that IMDb would ultimately prevail.                     

Section 37.2207 of the ELCRA is arguably even a greater restriction on free speech.  It may be time for the Michigan Legislature to tweak the ELCRA and remove this Orwellian prohibition from the statute. Its enforcement is not only impractical, it is likely unconstitutional. 

(Louis B. Eble, a graduate of Harvard Law School, is the owner of Louis B. Eble, PLLC, a Bloomfield Hills firm specializing in employment counseling and litigation.)