Item — HN Reader

Regarding sexual orientation I found this bit of logic interesting:

“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women"

Basically, if a particular gay man wasn't a man then he wouldn't have been penalized, so it follows that the discrimination is tied to his sex.

1 comments

>regarding sexual orientation

However, if I am reading Gorsuch's argument correctly, firing or not hiring someone for solely sexual orientation would be legal. A company could have a policy that says "we only hire people attracted to women." If someone comes out as as attracted to men, they could be fired. As long as the company consistently applies said policy to men and women, it doesnt appear to run afoul of this ruling.

Though your hypothetical seems like it would run afoul of disparate impact protections. A violation of Title VII may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class. AFAICT, a disparate impact also does not require a showing of intention.

But is sexual preference a protected class?

It really boils down to whether sexual preference is viewed as "being attracted to the other or the same" or "being attracted to men or women." The former uses the sex of a person to discriminate, while the latter does not.

No the disparate impact I'm talking about has nothing to do with sexual preference. I'm talking about disparate impact on sex.

Suppose (per your comment) a company indeed had a policy that says "we only hire people attracted to women". Given the current sexual orientation distribution in the world, such a policy would result in a disparate impact in which the vast majority of people that qualify would be men, and not women. This creates a disparate impact on the basis of sex.

https://en.wikipedia.org/wiki/Disparate_impact

What is the scope of this geographically? Does disparate impact apply locally, or is it generalized nationally first? If the discrimination took place somewhere like Palm Springs, in a place where half the population is LGBTQ, could they get away with it?

The scope of the law is probably commensurate the scope of the employment policy in question — i.e. for a nationwide company, the scope might be applied nationally. For a local mom-and-pop shop, it might apply locally.

All that being said, I'm pretty sure there is no locality on the planet where half the population is LGBTQ (not sure where you found that Palm Springs claim). As of 2015, the metropolitan area with the highest rate of LGBTQ residents was San Francisco, at 6.2% [1].

[1] https://www.nytimes.com/2015/03/21/upshot/the-metro-areas-wi...

Yeah I dont believe it, its a platitude thats been repeated, BUT, 10.7% of households identify as same sex in the census.

http://web.archive.org/web/20181205015304/https://williamsin...