More than 100 congressional Democrats and the U.S. Equal Employment Opportunity Commission ("EEOC") in conjunction with civil rights and gay rights advocates have filed "friend of the court" briefs with the Second Circuit Court of Appeals. In those briefs, these groups have asked the court of appeals to rule that Title VII protects against sexual orientation bias.
The case before the Second Circuit is Christiansen v. Omnicom Grp. Inc. In that case, the plaintiff was an openly gay man who accused his supervisor of making fun of him and abusing him because of the supervisor's animosity toward homosexuals. The trial court judge referred to the harassment as "reprehensible"but also stated that she was limited in her ability to rule for the employee. A 16-year-old prior Second Circuit case had clearly held that Title VII did not ban sexual orientation discrimination. The Christiansen judge asserted that times had changed since that case and suggested that the impractical and incoherent "line should be erased between sexual orientation discrimination and sexual stereotyping, the latter having been held to be within the protection of Title VII. She urged the Second Circuit to reconsider its old decision.
The Congressional members who filed the brief are also co-sponsors of the proposed Equality Act. That Act, if passed, would explicitly prohibit employment bias on the basis of sexual orientation or gender identity. These members do believe that Title VII's prohibition on sex discrimination already covers lesbian, gay, bisexual and transgender workers. They contend that the court'differing 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."