Author of Google Memo Sues Former Employer For Discrimination Against Conservative White Men

[Jim Lane]

105. Sorry, but you've completely misread my post.

You write that "the inferior genetics of women ... [is] a critical premise of the suit...."

No, it's not. In the post of mine that you're purportedly responding to, I specifically said that "he could win the lawsuit without proving or even alleging that there is any inherent genetic difference between the sexes in terms of aptitude for the work."

The law on this point has been well established for years. A plaintiff has the burden of making a prima facie case (i.e., that a "first look" at the evidence shows that the employer discriminated on the basis of a protected category). The burden then shifts to the employer to show that its employment decisions were based on bona fide occupational qualifications.

Even on the issue of a BFOQ, genetics has nothing to do with it. For example, the average woman has less upper-body strength than the average man. For a job that requires a lot of heavy lifting, though, the employer couldn't just point to that generalization as an excuse for not hiring women. That was the practice decades ago, but no longer. Now, the employer would give each applicant a test involving tasks that duplicate what the person hired will have to do on the job. More women than men will fail such a test. Therefore, it has a disparate impact, and the employer must justify it as a BFOQ. Nevertheless, even if a test that correlates with job requirements does disqualify more women, some women are stronger than most men. If a woman passes the test, the employer can't refuse to hire her just because she has XX chromosomes.