Commentary: U.S. Senator Martin Heinrich (D-N.M.) and 127 Members of Congress filed an amicus brief in the Second Circuit Court of Appeals in the case of Christiansen v. Omnicom Group, Inc., arguing that workplace discrimination on the basis of sexual orientation and gender identity is already prohibited under the Civil Rights Act of 1964 since these types of discrimination are inherently linked to sex discrimination. Discrimination on the basis of sex is banned under Title VII of the Civil Rights Act. The amicus brief was lead by U.S. Senators Jeff Merkley (D-Ore.) and Tammy Baldwin (D-Wis.) and U.S. Representative David Cicilline (D-R.I).
"Different interpretations of Title VII have led to uncertainty in the workplace and left LGBT Americans inconsistently protected from workplace harassment and discrimination, despite applicable federal law," wrote the Senators and Representatives. "We firmly believe that Title VII's sex discrimination provision already prohibits discrimination based on an individual's sexual orientation and gender identity, and we urge the Court to overrule erroneous Second Circuit precedent to the contrary."
Senator Heinrich is an original cosponsor of the Equality Act, legislation to clarify and expand current civil rights laws to better protect people of color, women and LGBT Americans from discrimination. Among other provisions, the Equality Act would clarify existing law by adding sexual orientation and gender identity to the list of explicitly protected classes in the Civil Rights Act of 1964.
The Senators and Representatives wrote in the brief that "the Equality Act acknowledges that Title VII already protects against sexual orientation and gender identity discrimination. Amici explicitly sought not to overrule case law and administrative holdings that discrimination based on sexual orientation and gender identity are sex discrimination. We therefore took a ‘belt and suspenders' approach when drafting the Equality Act's substantive provisions. [T]he Equality Act would amend Title VII to explicitly include ‘sexual orientation' and ‘gender identity' as protected characteristics alongside ‘sex.' We believed this would help clarify the statute for the average American who would look at its text without the benefit of legal experience or a repository of case law."