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Is discrimination based on sexual orientation legal?

It is common knowledge in the legal profession that Title VII of the 1964 Civil Rights Act protects employees in California and the rest of the country from workplace discrimination. Employers are banned from discriminating against employees on the basis of race, sex, national origin, color of skin, or religion.

Some smaller companies with fewer than 15 employees might not be subject to the law. However, the law is binding on organizations employing more than 15 workers, including local, state or federal governments. Still discrimination does occur in all sectors and across the spectrum of barred categories resulting in unfair disciplinary action and blocked promotions.

One might think that it would only be logical to expect that Title VII would also bar discrimination on the basis of sexual orientation, but this is actually a question that remains somewhat unresolved.

As we noted in one article not long ago, it was only this past June that the U.S. Equal Employment Opportunity Commission issued guidance saying that the ban on discrimination on the basis of sex also applies by extension to discrimination on the basis of sexual orientation.

Since then, the EEOC has reinforced its position on this point by ruling in favor of a former Federal Aviation Administration employee who claims he was denied promotion, and otherwise discriminated against, because of his orientation. Last fall the man filed suit against the FAA.

Such claims have not enjoyed a great deal of success in the past. Most of the time the Justice Department has succeeded in having the cases dismissed by saying that sexual orientation isn't specifically listed in the law. But in this case, the administration responded to the complaint, rather than asking to have it dismissed before it could go to trial.

Some observers suggest that the move to allow litigation of the issue indicates the Justice Department has changed its position on Title VII applications regarding sexual orientation, but that hasn't been confirmed by any officials.

Is this a turning of the tide? What do you think?

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