Public Accommodation and Public Service
Under the ELCRA, places of public accommodation and public service may not discriminate based on religion, race, color, national origin, age, sex, or marital status. MCL 37.2302.
What is Public Accommodation in Michigan?
Place of public accommodation means:
“a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” MCL 37.2301(a).
A person is not required to show an actual denial or refusal of accommodation to state a cause of action under the ELCRA. Rather, a violation of MCL 37.2302 occurs when a person is denied full and equal enjoyment of goods, services, and facilities. Clarke v K-Mart Corp, 197 Mich App 541, 495 NW2d 820 (1992).
The public accommodation provision prohibits unlawful discrimination against any individual, not just members of the public. In Haynes v Neshewat, 477 Mich 29, 729 NW2d 488 (2007), plaintiff physician alleged that defendant hospital discriminated against him by interfering with his staff privileges and depriving him of the opportunity to fully use defendant’s medical facilities. The supreme court held that plaintiff stated a cause of action under the statute, even though the practice of medicine is not a privilege offered to the public. Despite the consensual nature of a doctor-patient relationship, a doctor or clinic is not allowed to discriminate against potential patients based on protected characteristics such as marital status and may be sued under the ELCRA. Moon v Michigan Reprod & IVF Ctr, 294 Mich App 582, 810 NW2d 919 (2011).
In Doe v Young Marines, 277 Mich App 391, 745 NW2d 168 (2007), the court of appeals held that the Young Marines, which describes itself as “a private, non-profit corporation run by volunteers whose purpose is to promote the mental, moral and physical development of its members, who are ages eight through high school,” was not a place of public accommodation. The court distinguished Haynes:
Haynes does not … define what is a place of public accommodation. Rather, it holds that discrimination in a place of public accommodation against an individual is unlawful without regard to whether the goods, services, facilities, privileges, advantages or accommodations are offered to the public. The decision offers no guidance to whether a private organization fits within the statutory definition of a place of public accommodation.
Id.
What is Public Service in Michigan?
A public service means:
“a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political subdivision, or an agency thereof, or a tax exempt private agency established to provide service to the public.” MCL 37.2301(b).
In 1992, the ELCRA was amended to include the following otherwise private clubs within the definition of place of public accommodation:
a country club or golf club
a boating club or yachting club
a sports or athletic club
a dining club, unless that club in good faith limits its membership to members of a particular religion for purposes of furthering the teachings or principles of that religion and not for the purpose of excluding individuals on the basis of gender, race, or color
The ELCRA does not cover individuals who are “serving a sentence of imprisonment” in a state or county correctional facility. Note that this exception in MCL 37.2301(b) does not encompass all legally incarcerated persons. See, for example, Hamed v Wayne County, 284 Mich App 681, 775 NW2d 1 (2009), leave to appeal granted in part, 486 Mich 996, 783 NW2d 107 (2010), where the court found the ELCRA to cover plaintiff, who was sexually assaulted while in Wayne County Jail awaiting disposition of a bench warrant.
The supreme court, in a 4-3 decision, reversed the court of appeals and held that Wayne County and its sheriff’s department may not be held vicariously liable for quid pro quo sexual harassment affecting public services under traditional principles of respondeat superior. Hamed v Wayne County, 490 Mich 1, 803 NW2d 237 (2011).
The supreme court held that the Michigan Civil Rights Act did not impose liability on municipal employees for the actions of its agents absent evidence
(1) that the unlawful actions were taken within the scope of the employment or
(2) that the action was “a foreseeable act that was committed outside the scope of the employment.” Id. at 23.
Thus, after Hamed, “liability may certainly attach if there is sufficient cause to impute the employee’s or agent’s acts to the employer because the employer knew of the employee’s propensity to commit the type of act involved.” Id.
Where a police sergeant employed by defendant city admitted to stopping plaintiffs for traffic violations, and instead of issuing traffic tickets, initiating sexual contact with plaintiffs, which actions resulted in a $2,625,000 jury verdict against defendant, the court of appeals held that plaintiffs’ claims fell within the ambit of the ELCRA and that the trial court correctly denied summary disposition, directed verdict, and judgment notwithstanding the verdict on this basis. Diamond v Witherspoon, 265 Mich App 673, 696 NW2d 770 (2005).
Exceptions to ELCRA
Except Where Permitted by Law
The ELCRA prohibits discrimination in places of public accommodation or public service “except where permitted by law.” MCL 37.2302.
This phrase includes the entire body of law and therefore encompasses common law, constitutional law, statutory law, and municipal ordinances.
For example, when a bar denied admission to patrons between the ages of 18 and 21, the ELCRA was not violated because state law prohibits serving alcohol to persons under the age of 21 and denial of admission was a reasonable extension of this statute. Findling v TP Operating Co, 139 Mich App 30, 361 NW2d 376 (1984). The Michigan Court of Appeals has consistently rejected age-based challenges to the nonadmission of young people to places of public accommodation when the policy is permitted by other law.
Private Clubs
Under the ELCRA, certain private clubs are exempted from the prohibition of discrimination. The statute states:
This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation or is licensed by the state under [MCL 436.1101 et seq.]
MCL 37.2303. This provision does not apply to clubs that are otherwise defined as places of public accommodation in MCL 37.2301, for example, country clubs, golf clubs, boating or yachting clubs, sports or athletic clubs, and most dining clubs.
Factors used to determine whether a club is private are:
Size;
Selectivity;
Public services offered;
The use of public facilities. R
For example, a Michigan court held that a club was not private because its size was unlimited, it admitted virtually all male applicants who met minimal standards, its goal was to provide public services, and its meetings and events were held in public places.
A private club may, on the basis of age or sex, limit sports, schools, or leagues for children under 18 as long as comparable and equally convenient access to the club’s facilities is made available to both sexes. MCL 37.2302a.