By Dawn Wolfe Gutterman
LANSING – In Michigan, it's legal for an employer to fire you or deny you employment if you smoke, have the wrong bumper sticker on your car or drink the wrong brand of beer in a local bar after work. You can also be fired because you engage in non-marital sex, live with someone without being married to them, or are having – or ever have had – an extra-marital affair. You can also be fired or denied employment because you're gay, lesbian, bisexual or transgender.
Michigan's Senate Democrats want to change all that with a set of bills that would keep employers out of the private lives of their workers.
Known collectively as the Employee Security/Rights Package, the bills would bar employers from making hiring, termination or promotion decisions based on factors ranging from smoking to credit history to participation in legal political activities. Senate Bill 381, the Employee Privacy Protection Act, would ban all employment decisions based on off-duty, private conduct.
"Currently, there is a growing trend to judge employees on their lifestyle behaviors rather than their work product," said Sen. Gilda Z. Jacobs (D-14). "Most Americans agree that it is usually inappropriate to threaten or fire an employee for activities they participate in outside of work that are completely legal. This legislation will help protect Michigan employees from indiscriminate dismissals, while still recognizing that job providers sometimes have to fire employees who recklessly engage in inappropriate and offensive behavior outside the workplace."
Senate Bill 381 was originally sponsored by then-Senator Virgil Bernero in 2005 in the wake of widespread publicity following the firing of four Okemos women for refusing to take a test to determine if they were smoking. Jacobs is now the primary sponsor of the bill. Lisa Dedden, deputy chief of staff for Senate Democratic Floor Leader Mark Schauer (D-19), told BTL that the other bills have been introduced as a way to highlight the importance of employee privacy issues, as the Republican-controlled legislature has not moved on Senate Bill 381 since its introduction. Schauer is another primary sponsor of the package of bills.
In support of the bills, a press release by Jacobs cites the 2004 firing of a woman from her job at a housing insulation company for displaying a political bumper sticker on her car, and the case of a former Budweiser distributor who claims he was fired for drinking a Coors in a local bar after work.
Schauer recently told WILX-TV, "I don't think anyone wants to go down a path saying someone should lose their job … for taking action that has no effect on their work performance or work product. That's a very dangerous road to go down."
According to Jacobs, 30 other states and the District of Columbia have legislation protecting employees' privacy.
The release also cites a Michigan employment law expert, Royal Oak attorney Michael Pitt, as saying that firings for legal off-duty conduct are fairly common in Michigan.
"This kind of thing goes on more than anyone in Michigan could imagine," Pitt said. "My office alone receives dozens of complaints per week and it highlights the anxiety that workers in Michigan are feeling."
According to Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project, "The ACLU supports the general aims of the workers bill packages. Although Michigan is an at-will employee state, employees should not be terminated or denied the same privileges, benefits or protections of other employees because of their lawful activity conducted both off the employer's premises and during non-working hours."
Kaplan said that, with some exceptions, the bills could provide at least more protection to LGBT employees than Michigan law now allows.
For example, said Kaplan, "An employer could not terminate a gay employee because of his/her legal private consensual sexual conduct away from work." However, employers could still fire a gay or lesbian employee, "if the employer had a core mission or belief that homosexuality is wrong." In addition, "Even with the protection regarding familial status an employer probably still could fire an employee who was living with an unmarried partner, because Michigan still has a law on its books that prohibits unmarried cohabitation," Kaplan said.
Transsexual employees would be protected under the proposed law for cross-dressing off work premises during off hours, Kaplan said.
Governor Granholm is watching the bills, according to her press secretary.
"We are absolutely opposed to discrimination in any form or setting so we are very interested in these bills. We will be taking a very close look at them in the days ahead," said Liz Boyd in a May 8 email.
Speak OUT: Contact your state Senator and Representative and tell them to support Senate Bill 381 and the other bills in the Employee/Security Rights package. For contact information for your state Senator and Representative call the Michigan State House Clerk's office at 517-373-0135 or, for your Representative, visit http://house.michigan.gov/find_a_rep.asp.
