> Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
OK, let's play around with this logic for a second.
Suppose instead that we have an employer with four employees, A B, C, and D. Two are attracted to women, two are attracted to men. The four individuals are, to the employer's mind, materially identical in all respects, except that A is a man attracted to women, B is a woman attracted to women, C is man attracted to men, and D is a woman attracted to men.
Suppose the employer decides to fire C and D, for no other reason than that they are attracted to men. According to this logic, that's permissible, since the gender of the employee has no bearing on the employer's decision.
This will fail on disparate impact. That concept roughly says you can't discriminate against things that are a proxy for protected classes. So you can't blanket fire everyone attracted to men because that will effectively discriminate against women since attraction to men is a rough proxy for women.
OK, let's play around with this logic for a second.
Suppose instead that we have an employer with four employees, A B, C, and D. Two are attracted to women, two are attracted to men. The four individuals are, to the employer's mind, materially identical in all respects, except that A is a man attracted to women, B is a woman attracted to women, C is man attracted to men, and D is a woman attracted to men.
Suppose the employer decides to fire C and D, for no other reason than that they are attracted to men. According to this logic, that's permissible, since the gender of the employee has no bearing on the employer's decision.