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Key Members of Congress Are Pushing a Federal Appeals Court to Make Clear That Anti-Gay Discrimination Is Illegal

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Ian S. Thompson,
Senior Legislative Advocate,
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June 28, 2016

When Matthew Christiansen took a job at the marketing communications firm DDB, he had no idea he’d walk into a trifecta of discrimination, stereotyping, and retaliation at the hands of his employer because he is a gay man. As soon as Christiansen was hired, his supervisor “immediately commenced a harassment campaign against him by repeatedly accusing him of having AIDS just because he was gay.” His supervisor also drew graphic pictures mocking Christiansen and the gay community, sharing them at the office and on social media.

Believe it or not, this kind of discrimination isn’t fully considered illegal by the courts. That is why more than 100 members of Congress on Tuesday urged a federal appeals court in New York City to hold that discrimination based on an individual’s sexual orientation is a violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits sex discrimination in employment and is the crux of this case — Christiansen v. Omnicom Group Inc. — before the Second Circuit.

A prior case in the Second Circuit incorrectly held that Title VII did not protect lesbians, gay men, and bisexual people against discrimination. As evidence, the court pointed to a bill in Congress that would have provided explicit protection in federal law against employment discrimination based on sexual orientation.

In their friend-of-the-court brief, the members of Congress — all of whom are supporters of the Equality Act and champions of LGBT rights, including House Democratic Leader Nancy Pelosi — powerfully and persuasively argue that the court’s previous interpretation of congressional intent was erroneous. The goal with the Christiansen case is to provide the Second Circuit with an opportunity to make clear that anti-gay discrimination is unlawful under federal law. The recognition that anti-LGBT discrimination is unlawful has gained significant legal traction in recent years.

But this fight in the courts and in Congress raises a good question: Why are so many members of Congress working diligently to pass explicit, comprehensive nondiscrimination protections for LGBT people while also urging a court to say that this type of discrimination is already prohibited under federal law? Because it is important to ensure that courts are correctly interpreting federal civil rights laws in a way that robustly protects the dignity and rights of LGBT people across the country. This is especially relevant now that we are seeing proposal after proposal in Congress and in state legislatures to discriminate against LGBT people.

The effort to pass these protections remains critically important in order to achieve equality, and one that the ACLU strongly supports at the local, state, and federal level. This work, far from being in conflict, is complementary and essential to securing equal protection under the law for LGBT people.

The ACLU is tremendously grateful to Sens. Jeff Merkley (D-Ore.) and Tammy Baldwin (D-Wis.), Rep. David Cicilline (D-R.I.), and all the members of Congress for joining this brief and urging the Second Circuit to recognize the reality that discrimination against lesbians, gay men, and bisexual people is unlawful. We also thank the law firm Cravath, Swaine & Moore, which took on this brief pro bono. The ACLU, together with the NYCLU, filed its own friend-of-the-court brief on behalf of 16 women’s organizations arguing that discrimination because of sex means much more than simply getting rid of “men only” signs on job postings at work and includes discrimination against lesbian, gay, and bisexual workers.

We will continue to stand with legislators working to get explicit nondiscrimination protections for LGBT people enacted into law so that there are clear consequences for treating LGBT employees the way Matthew Christiansen was.

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