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Pretty Woman, Walk on Down the Street [and out of the workplace] – Firing Attractive Female Employee Due to Wife’s Demand NOT Sex Discrimination

Contributed by Terry Fox

The media, particularly the Internet, is abuzz with reports related to the Iowa Supreme Court’s decision that loosely “makes it ok” to fire a pretty woman. Nelson v. James H. Knight, DDS, P.C., 11-1857 (Iowa Supreme Court 12/21/12).  At first glance, the decision screams sex discrimination to most people.  There was no dispute that the attractive female was an above average employee.  On further analysis, however, the decision is in line with established case law and the underpinnings of discrimination law.

Dentist James Knight employed Melissa Nelson as a dental hygienist when she was just 20 years old.  She worked for Dr. Knight along with other exclusively female hygienists and office help. After ten and a half years, Dr. Knight fired Ms. Nelson, who by that time was married with children. The dentist and his assistant were close, and the relationship grew in the ten years’ time she was employed, with the two exchanging text messages outside the office on professional and personal topics.  However, when Dr. Knight took his children to Colorado to ski one winter, Mrs. Knight discovered the text messages between her husband and Ms. Nelson.  When Dr. Knight returned from the ski trip, Mrs. Knight demanded that he fire Ms. Nelson “because ‘she was a threat to our marriage.’”

Dr. Knight had previously commented that Ms. Nelson wore too tight clothing, that she should wear a lab coat so as not to distract him.  Mrs. Knight found Nelson flirtatious towards her husband.  When Nelson complained of the lack of frequent intimacy with her husband, Dr. Knight responded by observing it was “like having a Lamborghini in the garage but not driving it”. Nelson regarded Dr. Knight as a friend and a father figure.  There was no sexual relationship between them, but Dr. Knight was concerned there would be in the future.

The trial court granted Dr. Knight summary judgment when the fired employee sued, on the basis that the termination was due to a threat to his marriage, not because of the employee’s sex.  The Iowa Supreme Court agreed.  That court pointed to decisions from around the country allowing an employer to fire an employee where a consensual relationship in the workplace lead to jealousy once the relationship ended, as well as decisions allowing an employer to treat an employee better because of the favorite’s sexual relationship with the boss.  Noting that neither Title VII or the Iowa Civil Rights Act are “general fairness laws” precluding an employer from treating its employees unfairly, the Court rejected the employee’s argument that liability should be imposed where an employee is fired to avoid sexual harassment by the boss.

It is clear that had Dr. Knight fired all the females in his office, it would have been a different case.  He replaced Nelson with another female, so sex discrimination appeared not to be the cause. The termination came after Knight and his wife consulted their pastor and the pastor attended the termination meeting.  Knight also met with Nelson’s husband on the evening of the termination, again with the pastor present.

A broad view of the Nelson decision is that, had it turned out differently, the floodgates of personal appearance and body-type litigation would have been opened.  Small employers are particularly vulnerable to that type of litigation, due to more modest resources and because one person usually makes the sole hiring/firing determination.

If you have questions about employee policies or other employment issues, please contact Terry Fox at tfox@salawus.com. Terry is also a contributor to the Labor & Employment Law Update blog – www.laborandemploymentlawupdate.com

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