Page:Epoch Producing v. Killiam Shows.pdf/1

, customers, and society generally against promiscuous sexual activity that is thought likely to follow from contacts between men and women where liquor is sold by the drink. The classification chosen to further that interest is female employees versus male employees. A “ground of difference that rationally explains the different treatment” of men and women by the ordinance (Eisenstadt v. Baird, supra, 405 U.S. at 447, 92 S.Ct. 1029) would exist only if it could rationally be assumed that a female employee is more likely than a male employee to engage in promiscuous sexual contacts with customers of the opposite sex. While a legislative body may draw on history for an assumption that most of those who will engage in prostitution will be women, and perhaps for an assumption that prostitution and other promiscuous sexual activities sometimes stem from contacts made in bars, those assumptions do not in logic or experience support broader assumptions about all or most women who work in bars or the relative proclivities of men and women who work in, or are patrons of, bars. We think it is impermissible under the equal protection clause to classify on the basis of stereotyped assumptions concerning propensities thought to exist in some members of a given sex. This is not necessarily to say that sex is an inherently suspect classification, a point which the Supreme Court has yet to decide. There are anatomical and physiological differences between the sexes that may justify classification for certain purposes. But these differences hardly include a greater or lesser propensity for a given kind of conduct.

We hold, therefore, that the provisions of the Milwaukee ordinance in issue here are in violation of the equal protection clause.

Affirmed.