Hacker News Reader

Comment by akvadrako | Hacker News Reader

They are not saying that. Say you have two employees:

  * Person A is male and has a wife.
  * Person B is female and has a wife.

If you fire person B because of her sexual orientation, you are treating her differently then person A, when the only difference is her sex.

I think the dissent does a good job showing the flaws in that argument, but it's better then you're giving it credit for. The flaw is that you could ask on a hiring form:

  Are you [ ] homosexual [ ] heterosexual [ ] other.

If they answer homosexual and you fail to hire them, you don't even know their sex - so you can't possibly be treating men and women differently.

View on HN

For completeness, I'll quote the majority's counterargument to that thought experiment:

> Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.

> The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. [...] Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

Alito did respond to this too. As he says, if they check a box saying they are black or Catholic, presumably they are one or the other. But checking a box saying you are homosexual doesn't give any information about your sex.

In your examples you can see the discrimination clearly, but this made me ponder. How about scenarios where the discrimination isn't overtly stated by the discriminators? Let's assume they aren't really upfront and ask you about your sexual preference (Which is very odd since asking personal questions is a big NO-NO in Canada, where I live). Having this law will help in your case, but how can a general person even try to pinpoint why they were fired, especially so if they have an 'at will' status of employement?

Reply on news.ycombinator.com