Patrick Higginbotham

“ The rule of law in this country is so firmly embedded in our ethical regimen that little can stand up to its force except literalistic insistence upon one's rights. And such inability to absorb the minor indignities suffered daily by us all without running to court may stop it dead in its tracks. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”