Yes, Dear, I Will Fire My Employee Because She is "Hot"

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Can a boss fire an employee simply because he finds her attractive?  Yes, according to the Iowa Supreme Court in a recent decision, Nelson v. James H. Knight, DDS (Iowa, December 21, 2012).  And, lest you conclude that the case is an anomaly, the decision relies heavily on a 1990 decision by the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 903–05 (11th Cir. 1990)).

Melissa Nelson was a dental assistant for Dr. Knight’s practice for ten years.  On several occasions Dr. Knight complained to Nelson that her clothing was too tight and revealing and "distracting."  Dr. Knight and Nelson also began texting each other on both work and personal matters. The texts typically involved updates on their kids’ activities and other innocuous matters; neither objected to the other’s texting. While Dr. Knight made a couple of inappropriate comments to Nelson (such as saying that she would know her clothing was too revealing if she saw his pants bulging), Nelson did not complain of sexual harassment.  However, Dr. Knight’s wife complained about their relationship when she discovered they were texting each other, and she demanded that he fire Nelson.  Dr. Knight and his wife consulted with the senior pastor of their church, who agreed that Nelson should be fired.  Dr. Knight fired Nelson, gave her a month’s severance pay, and replaced her with another female assistant.  Nelson sued, claiming that she was the victim of gender discrimination.

The Iowa Supreme Court disagreed. The court cited several cases in which courts have held that that an employer does not engage in unlawful gender discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy, absent allegations that the relationship stemmed from unwelcome sexual advances or a hostile work environment.  The court also cited the Eleventh Circuit’s decision in Platner, where the court upheld the termination of a female employee who worked on the same crew as the business owner’s son, after the wife of the business owner’s son became jealous of her.  The logic of all these decisions, the Iowa Supreme Court observed, is that it is not unlawful to make a decision "driven entirely by individual feelings and emotions regarding a specific person. Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender." 

But isn’t it illegal sexual harassment for a boss to terminate an employee for refusing his sexual advances, even if the employee is the only target of his affections? Yes, but the Iowa Supreme Court rejected this analogy by noting that "sexual harassment violates our civil rights laws because of the 'hostile work environment' or 'abusive atmosphere' that it has created for persons of the victim's sex.  On the other hand," the court observed, "an isolated decision to terminate an employee before such an environment arises, even if the reasons for termination are unjust, by definition does not bring about that atmosphere." 

As the Nelson case illustrates, the line between illicit gender discrimination and lawful favoritism (or, in this case "un-favoritism") is not always clear.  Dr. Knight won his case and may have saved his marriage in the process, though it was probably a costly victory.  Employers with a similar issue should consult with an employment lawyer, not just a pastor.