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Comment by gregors | Hacker News Reader

The reason why we have "protected status" is that people were banning people based on their racist/hate views. Those people used their 5 senses to easily target the people they hated for discrimination. Other variables (such as who you work for) well that's not easily found out...until now. AI is now allowing for new innovating hate and discrimination to drive decisions.

What an absolute cluster. I don't envy the courts. It's going to be interesting if everyone starts weaponizing every aspect of political affiliation, employment, residence location and social status.

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> used their 5 senses to easily target the people they hated

No. Very easy to disprove: there are many examples of protected status that is not easy to tell just by looking at someone.

1. Race (esp. mixed race)

2. Religion

3. Pregnancy

4. National origin

5. Sexual orientation

6. Disability

7. Genetics

You've been downvoted, but I'd agree; most of them are not necessarily "visually obvious" and more "stuff you can't easily change".

In almost all cases, there were people in the protected group who were able to disguise that status. So in those cases just 5 senses weren't perfect. But it was sufficient for at least some cases, which is where the laws came from.

Just because you can't tell 100% doesn't mean you can't discriminate - and accuracy doesn't factor much in prejudice.

I assume that is a US thing. How does that exactly work? In what sense are these people protected?

In the legal sense.

https://en.wikipedia.org/wiki/Protected_group#United_States

You cannot, for instance, fire someone for being black. These characteristics are protected in the sense that discrimination against them in certain areas is illegal.

Ok, but then the US Air Force would not hire anyone shorter than 64 inches or taller than 77 inches. Your height is a part of your genetics, you can't change it.

Why are people outside of this range not protected? Am I oversimplifying something here?

> Why are people outside of this range not protected?

Because legislation has been written to target certain characteristics. The experience of short people in American history doesn't quite match that of black, gay, or disabled people, and thus it hasn't been legislated.

If there weren't a BFOQ then this could be seen as veiled sex discrimination since women are shorter than men on average.

They are called bona fide occupational qualifications. Even a private business can discriminate against say, an actor who can’t play a particular role due to the race or gender of the character. Same goes with certain jobs that involve lifting or an expected level physical fitness.

Could you say that you need a white male bartender for your pub in rural Texas, because your customers are racist and sexist and anyone else would make them feel uncomfortable? Or would that "choice" be limited by the protected status?

Race can never be a BFOQ except in the specific case of artistic works, due to the first amendment.

In addition, mere customer satisfaction secondary to the primary job is not enough to establish BFOQ; it's a thin line though as Hooters seems to hide behind BFOQ (thus essentially stating that the primary reason for their serving staff is sex appeal), while flight attendants cannot.

I suppose if you had an airline called "cleavage air" and had all the flight attendants wear low-cut tops, then you might get away with it.

Indeed. The law says that sex is characteristic that may be a BFOQ, and in the case of Hooters it seems to be. BFOQs may apply to sex, religion, and national origin, but not the other protected classes.

Could Hooters then reject a woman based on visual trait connected to a race, arguing that it doesn't give her the required "sex appeal"? Skin colour would be of course to obvious, but lips size or body shape?

No.

The only way Hooters could in principle discriminate on the basis of race is if they come up with some first amendment pretext for it; e.g. the waitress job is actually an artistic performance and for some reason the art demands the performer be a certain race. That works for movie productions, but for a bar hiring waitresses? In practice it wouldn't work because the courts and the public would both write you off as an obvious racist.

That is quite fascinating to me (as a layperson and non-american). Are there any articles or is there any literature that you'd advise in that topic?

I'd be interested in something that gives more context, details and examples than the wikipedia article, but not targeted at lawyers and not excessively long.

How does that work in practice for a company like Hooters - do they spend millions on lawyers to be able to defend their position? What if you'd open a local place working in similar way to Hooters - would you go bankrupt trying to defend yourself?

I don't know of any good resources, but application of the laws is mostly common-sense, with a slight bias towards non-discrimination in the gray areas.

It doesn't take a lawyer to tell that Hooters' primary product isn't chicken wings (Chris Rock even made a joke about it).

The reason behind the laws isn't common-sense, in the case that the 1964 Civil Rights Act is basically a list of "things currently happening that we think are bad" rather than an exhaustive list of things it's bad to discriminate on; it's also limited somewhat by the legal framework that the US congress was working within.

Labour laws in the US are also weird for similar reasons. There was a point at which union members were beaten and killed, with the local police being bought-off to not intervene. It escalated to at least one pitched battle between a private army and workers. Things like assault, battery, and murder are enforced at the local ("state" in the US terminology, not in the meaning everywhere else in the world) level not federal level, so rather than arresting the people doing this, laws were passed giving special protections to unions. Then a few decades later people argued that the special protections made unions too powerful and a bunch of extra rules limiting what unions can do were passed.

> How does that work in practice for a company like Hooters - do they spend millions on lawyers to be able to defend their position?

They certainly spend millions on lawyers. They've been sued for not hiring men several times, AFAIK always settle out of court. They defend their position by claiming being a woman is a BFOQ for working at Hooters, but aren't eager to risk losing in court.

They have certainly been sued many times, but I could only find two suits related to not hiring men. The older one resulted in a large settlement and an agreement to hire regardless of sex for non-waitress positions (including bartender and host/hostess). The latter was against a single franchise and had non-disclosed settlement terms (I'm not sure how a class-action suit can have a confidential settlement; wouldn't all members of the class be notified?).

> except in the specific case of artistic works, due to the first amendment.

The first amendment protected the Boy Scouts' right to express their disapproval of gays by not employing them. Is race different from a first amendment perspective?

Sexual orientation is not one of the five protected classes in legislation (sex, race, age, religion, country of origin). As such, it is not de jure protected through the entire US.

It's been argued in the 7th circuit that "sex" and "sexual orientation" apply to employment, but not elsewhere; Title IX was decided in favor of making orientation a protected class in education in 2020. 22 states protect sexual orientation by law (with 19 of them also including gender), and there's an executive order protecting both for federal jobs and contractors. But if you're in Texas, Florida, Alabama, or 25 other states? It's absolutely legal to be fired for being gay.

> But if you're in Texas, Florida, Alabama, or 25 other states? It's absolutely legal to be fired for being gay.

Recent Supreme Court precedent says that discrimination by sexual orientation is a type of discrimination by sex. If that's what you're referring to here:

> Title IX was decided in favor of making orientation a protected class in education in 2020.

The result wasn't that orientation is a protected class. It was that discrimination by orientation is an example of discrimination by sex, and sex is a protected class. So if it's not legal to fire someone for being female in Alabama, it also isn't legal to fire them for being gay, since that's the same thing.

But none of that would apply to the first amendment, since it's statutory and the first amendment is constitutional. Is there a distinction between race and sexuality relevant to the first amendment?

> Race can never be a BFOQ except in the specific case of artistic works, due to the first amendment.

This is technically wrong, in that the First Amendment limitation on title VII is separate from BFOQs, and race can expressly never be a BFOQ. But the effect of the limitation is similar to allowing race to work like a BFOQ in certain circumstances in artistic contexts.

Look up the definition of the term "bona fide" and tell me if you think that would qualify as a good faith requirement allowing a business to discriminate their workers.

Hooters hires "performers", not waitresses.

So this is indeed how it works.

Many reasons that's not protected:

1. The "Genetic Information Nondiscrimination Act" specifically bans using "Genetic Information" in certain circumstances, which is generally understood to mean e.g. DNA testing. Discriminating on height does not fall into this.

2. You could still fall into issues with e.g. the Civil Rights Act of 1964 by having a height requirement if e.g. far more men than women fall into that height range, however there are exceptions[A] built into that act when a job has specific requirements, one being you can ask for "male models" to model clothing targeted at men.

A: https://en.wikipedia.org/wiki/Bona_fide_occupational_qualifi...

> You cannot, for instance, fire someone for being black

So now companies don't put that as the termination reason, & fire them anyway for 'culture fit'. Or leave the term reason blank, b/c 'At-Will'.

"Protected class" isn't very protected, as it leaves burden of proof to the victim, who needs to lawyer up & chase the proof via discovery.

> So now companies don't put that as the termination reason, & fire them anyway for 'culture fit'. Or leave the term reason blank, b/c 'At-Will'.

No, for large companies (those at risk of being sued) it works the other way round: they collect very detailed data to objectively justify any firing, otherwise they are at high risk of losing a discrimination lawsuit.

Hence "improvement plans", "needs improvement" ratings, etc, etc.

It is likely true that small and medium companies can get away with abuse though.

Exactly, but there are even more fundamental problems with all these identity laws.

1. They're inherently unjust and anti-equality.

2. In the case of stuff like race and gender, the law doesn't even clearly define what terms like "black" and "white" are supposed to mean. There is no scientific definition because in physical reality race doesn't exist. It's assumed everyone follows race ideology, but even if we assumed that to be true then the premise of such suits is that someone committed a thought crime. Such cases are bound to lead to wrongful convictions as well as actual discrimination going unpunished because it can't be proven. These discrimination suits are the modern day equivalent of medieval witch trials.

3. They create division and conflict. That may be an intentional feature instead of a bug though.

i don't quite agree. the law provides that being part of a protected group can not be used as a reason. that's enough. there is no need to prove a thought-crime. there is only need to prove that there is no justifiable reason for the action that lead to the discrimination, eg no justifiable reason to fire someone or to deny service. finding the real reason for the discrimination is not necessary

So, saying "you can't be part of our group because you're not black" would be illegal in the US and the person could sue for damages?

Wanna see some examples proving the opposite? That is not how it works at all, what you describe is an example of equal legal rights, I already mentioned these laws are anti-equality. Anti constitutional even, not that many in the US seem to care.

it depends on the purpose of the group. when it comes to employment or services to the public then yes. i don't see how that is anti-equality.

> "Protected class" isn't very protected, as it leaves burden of proof to the victim

Surely though, you understand and agree that having this law is better than the alternative, where employers ARE allowed to fire someone simply for being a member of a protected class, and are even welcome to brag about doing so.

> The reason why we have "protected status" is that people were banning people based on their racist/hate views. Those people used their 5 senses to easily target the people they hated for discrimination.

Easy targeting was not the issue, the combination of pervasiveness and the belief that it was unwarranted and/or resulted in an excess of social strife if tolerated was. (Sometimes, it is misportrayed as being about innate characteristics, but this is very obviously not the case with religion, where freedom of religion as a right waa very clearly the outcome of exhaustion with centuries of strife, largely between different factions within Western Christianity.)

Factor into this the consolidation of so many industries, and if you happen to run afoul of one company you've effecively become a pariah. Getting banned from Google is bad enough.

There is certainly a line that needs to be drawn, since I somewhat understand the intent behind the ban. However, this will quickly get out of hand now that we can effectively disciminate on so many new factors scale.

I think this should be protected.

A business owner should be able to decline to host someone adversarial to that business.

That's not what happened here though.

> "MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including Davis, Saperstein and Salomon, which was notified twice," a spokesperson for MSG Entertainment said in a statement.

Seems pretty cut and dry if true. The law firm is litigating against the company, and the company notified the law firm of their policy to not allow employees to attend their venues.

If anything, lawyers deserve this treatment.

Why do the lawyers deserve this?

I can kind of understand the lawyers actively involved in the case being banned from the arena, but why should a lawyer who is not even licensed in NY, and does not appear to be involved in the case be banned?

Should lawyers be banned from going to hospitals they are litigating against?

That was just a sentiment because lawyers bring this adversarial behavior into society, and I have a general dislike of lawyers because of this behavior I've experienced for no reason. (I was once threatened by a real estate lawyer just because I chose another firm after an initial phone call, for example.) Do they really deserve it? Maybe not, but I'm not a huge fan of the power lawyers wield and their incentives, so them getting a taste of their own medicine seems okay with me. (This is a very generic sentiment though, and not targeted towards particular people.)

Regarding the policy, is it really that absurd? They are being sued, presumably, by the law firm. When I was at a company with ongoing IP litigation, there were extremely strict measures put into place while that went on. The law firm was even notified. So the lawyers purely ignored it. Lawyers are pretty apt to point out when you ignore communication, so why did they do it? They could have communicated prior to the trip, but instead they showed up and gave their surprised Pikachu face.

> Should lawyers be banned from going to hospitals they are litigating against?

Irrelevant hypothetical because that's not what happened here, and there are different rights to medical treatment than there are for seeing an entertainment show.

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