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Sexual orientation discrimination an open federal issue

The issue of sexual orientation discrimination in the workplace is a growing concern for businesses in Texas and across the United States. In December 2017, the U.S. Supreme Court declined to review a decision by a court of appeals decision in a case on the issue. This leaves intact a current split across circuit courts on whether federal law prohibits discrimination based on sexual orientation in employment and hiring.

In the case, the plaintiff, an employee who worked in security in a hospital, claimed that she had been discriminated against due to her homosexuality, specifically by being passed over for a promotion. In the case, the circuit court ruled that Title VII of the 1964 Civil Rights Act does not prohibit workplace discrimination based on sexual orientation; however, it did note that discrimination for failing to conform to gender stereotypes was prohibited under the gender discrimination provisions of the law.

Two other federal circuit courts came to different conclusions in cases they were considering on sexual orientation discrimination in the workplace, with the Seventh Circuit finding sexual orientation to be protected under Title VII and the Second Circuit finding it not to be a protected characteristic. The issue of whether "sex" discrimination includes "sexual orientation" discrimination remains in many cases an open question without a clear ruling from the Supreme Court.

For employers, avoiding discrimination on the basis of sexual orientation can be an important framework for protecting oneself from current or future claims. There are also many state and local ordinances that explicitly prohibit such discrimination even as the federal issue remains not fully resolved. Employers can work with an employment attorney to develop policies and best practices on the issue of sexual orientation discrimination and LGBTQ employees in order to provide maximum protection and a positive work environment. An employment law attorney can help a workplace develop clear protocols for investigation and action in case of such claims.

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