Sen. Al Franken, and Reps. Keith Ellison and Betty McCollum are among 128 members of Congress urging a New York Court to rule that discrimination based on sexual orientation is a violation of the 1964 Civil Rights Act.

The case, Christiansen v. Omnicom Group Inc., hinges on alleged harassment of a gay man by a supervisor at an Omnicom marketing subsidiary.

Matthew Christiansen’s lawyers have argued that Title VII of the 1964 Civil Rights Act, which covers discrimination in employment, should cover sexual orientation. That argument was rejected by a federal judge in New York, and the Second Circuit Court of Appeals will hear the case (they’ll already heard it once, but will hear it again. Those details can be read here).

“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,” the Congress members wrote in the amicus brief. “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.”

They continued, “To hold that sexual orientation does not fall under ‘sex’ in Title VII flies in the face of common sense, the understanding of more than 200 bipartisan members of the House and Senate who have cosponsored the Equality Act and the position taken by the Equal Employment Opportunity Commission and other federal circuits. Sexual orientation cannot be understood without reference to a person’s sex, so any instance of discrimination based on sexual orientation must be rooted in impermissible sex-based considerations.”

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