OPINION

Elliott-Larsen expansion would be gift to trial lawyers

Paul Mitchell

In 1976, the Elliott-Larsen Civil Rights Act was signed into law in Michigan. In short, the law prohibits discrimination in employment and a variety of other economic transactions because of religion, race, color, national origin, age, sex, height, weight, familial status or marital status. Whether it be to hire or fire someone, deprive someone of employment opportunity after being hired, classify or reclassify the individual when it comes to promotions and demotions or extend benefits and retirement; the Elliott-Larsen Civil Rights Act was established to define protections for workers based on potential discrimination.

Recently, there has been a push from some within the legislature and some major corporations to expand the Elliott-Larsen Civil Rights Act to include lesbian, bisexual, gay and transgender individuals within its definition of protections. However, many oppose this.

The expansion of the Elliott-Larsen Civil Rights Act to include sexual orientation would open the proverbial Pandora’s box and puts Michigan’s small and family businesses at substantial risk.

This is not about acceptance or even rights for that matter. This is about trial lawyers and litigation. This is about workplace policy and the potential exploitation of it. This is about major corporations with a team of lawyers being able to withstand the storm, while “Mom and Pop” small business owners risk losing everything trying to defend themselves against the mere claim of discrimination.

The moment this expansion passes, tens of thousands of Michigan small business owners will be placed directly in the cross hairs of anyone wishing to game the system or claim discrimination. And those cross hairs do not stop at simply employment-related claims. In fact, should this expansion pass the Legislature and be signed into law, they should call it what it really is: “The Full Employment Act for Labor Lawyers.”

Discrimination laws, and enforcement, have been based upon establishing protected classes defined by very clear characteristics. The problem with establishing the LBGT community as a protected class is it is not clear and readily definable. It’s not as if someone walks around with a sign around their neck indicating their sexual preference.

In most employment situations, one’s sexual preference is never discussed or disclosed, which is as it should be. However, once hired, the proposed expansion can do fatal damage to small business owners.

Since sexual orientation is not clear, any disgruntled employee could use it as a weapon by merely making the claim. No evidence, trial or finding of fact. The mere accusation can lead to a formal regulatory process leading to litigation. If you’re a business owner and want to fight a claim you believe to be false, CourtStatistics.org estimates fighting that claim through a full trial would be a median cost of $88,000. This is why few claims ever make it to trial — there is too a great of a cost. In fact, a study conducted by the American Bar Foundation found that from 1987 through 2003, only 6 percent of these cases ever go to trial.

We, as citizens, decry the massive increase in health care costs but few realize the impact of the cost of malpractice insurance which doctors must pay as a preventative measure from frivolous lawsuits. Have we not learned our lesson? Increased litigation costs everyone money.

Paul Mitchell is chairman of the Faith & Freedom Coalition of Michigan.