Patrick Higginbotham

“ It is ironical that the federal courts are asked to accept a broadly stated principle that would regulate the states by decreeing that some federal principle denies them the choice of accepting or rejecting a license when absent its waiver of immunity the federal copyright regime is not enforceable against them. ”

“ While a pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as well as, according to the findings of the trial court, their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of the airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another. ”

“ There is no competent proof that Southwest's popularity derives directly from its females-only policy to the exclusion of other factors like dissatisfaction with rival airlines and Southwest's use of convenient Love and Hobby Fields. Nor is there competent proof that the customer preference for females is so strong that Defendant's male passengers would cease doing business with Southwest as was the case in Fernandez. In short, Southwest has failed in its proof to satisfy Diaz's business necessity requirement, without which customer preference may not give rise to a BFOQ for sex. ”

“ Against a refrain that "the law" belongs to the people, Veeck asked us to conclude, as a matter of federal common law, that the choice made by the voters of this municipality was not available to it. Its utility as a decisional norm aside, the refrain passes by the fact that it was legislators who chose what they thought was the most practical path, to adopt a technical code developed at the expense of others under a licensing agreement.
Nothing suggests that private entities will control access to "the law." ”

“ Customer preferences should not be bootstrapped to the level of business necessity. The only occasion where customer preference will rise to the dignity of a bona fide occupational qualification is where no customer will do business with a member of one sex either because it would destroy the essence of the business or would create serious safety and efficiency problems. Id. at 1165.↑ Southwest's argument that its primary function is "to make a profit," not to transport passengers, must be rejected. Without doubt the goal of every business is to make a profit. ”

“ It is undisputed that Veeck copied the copyrighted product of SBCCI. That parts of the copied material contain the same expressions as the adopted codes of two Texas cities is no defense unless the use by the cities of the protected expression somehow invalidated SBCCI's copyright.
The cities could have hired counsel and engineers to draft a code, recouping its expense either from all taxpayers or by charging a fee to users for a copy of its ordinance. A city could also decide, on behalf of the citizens, to license a finished and copyrighted work. ”

“ As an integral part of its youthful, feminine image, Southwest has employed only females in the high customer contact positions of ticket agent and flight attendant. From the start, Southwest's attractive personnel, dressed in high boots and hot-pants, generated public interest and "free ink." Their sex appeal has been used to attract male customers to the airline. Southwest's flight attendants, and to a lesser degree its ticket agents, have been featured in newspaper, magazine, billboard and television advertisements during the past ten years. ”

“ A contrary vision persists while ignoring the assured access of persons interested in the language of the ordinance. We are not told what impediment a person interested in the ordinance will face that will not be avoided by the doctrines of fair use and implied license or the constitutionally footed right of persons to access the law. ”

“ While possession of female allure and sex appeal have been made qualifications for Southwest's contact personnel by virtue of the "love" campaign, the functions served by employee sexuality in Southwest's operations are not dominant ones. According to Southwest, female sex appeal serves two purposes: (1) attracting and entertaining male passengers and (2) fulfilling customer expectations for female service engendered by Southwest's advertising which features female personnel. ”

“ Banks holds that judges, as public employees, cannot have a financial interest in the fruits of their judicial labors. It is a case about authorship, about the acquiring of copyrights by public officials, not a case invalidating the copyrights held by private actors when their work is licensed by lawmakers.
As for the merger doctrine, I am not persuaded that it brings anything more to the table. ”

“ Consistent with the language of Diaz, customer preference for one sex only in such a case would logically be so strong that the employer's ability to perform the primary function or service offered would be undermined by not hiring members of the authentic sex or group exclusively. ”

“ Southwest reasons it may discriminate against males because its attractive female flight attendants and ticket agents personify the airline's sexy image and fulfill its public promise to take passengers skyward with "love." Defendant claims maintenance of its females-only hiring policy is crucial to the airline's continued financial success.
Since it has been admitted that Southwest discriminates on the basis of sex, the only issue to decide is whether Southwest has proved [2] that being female is a BFOQ reasonably necessary to the normal operation of its particular business. ”

“ Indeed, on Southwest's short-haul commuter flights there is time for little else. That Southwest's female personnel may perform their mechanical duties "with love" does not change the result. "Love" is the manner of job performance, not the job performed. ”

“ Southwest's position knows no principled limit. Recognition of a sex BFOQ for Southwest's public contact personnel based on the airline's "love" campaign opens the door for other employers freely to discriminate by tacking on sex or sex appeal as a qualification for any public contact position where customers preferred employees of a particular sex. ”

“ To do this, Southwest employs ticket agents whose primary job duties are to ticket passengers and check baggage, and flight attendants, whose primary duties are to assist passengers during boarding and deboarding, to instruct passengers in the location and use of aircraft safety equipment, and to serve passengers cocktails and snacks during the airline's short commuter flights. Mechanical, non-sex-linked duties dominate both these occupations. ”

“ Southwest contends its attractive flight attendants are the "largest single component" of its success. In the 1979 survey, however, of the attributes considered most important by passengers, the category "courteous and attentive hostesses" ranked fifth in importance behind (1) on time departures, (2) frequently scheduled departures, (3) friendly and helpful reservations and ground personnel, and (4) convenient [p296] departure times, [9] Defendant's Exh. ”

“ Similarly, a potential loss of profits or possible loss of competitive advantage following a shift to non-discriminatory hiring does not establish business necessity under Diaz. To hold otherwise would permit employers within the same industry to establish different hiring standards based on the financial condition of their respective businesses. ”

“ Thus, being female has been deemed a BFOQ for the position of a Playboy Bunny, female sexuality being reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers. ”