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You Were Fired Because You Are Too Pretty: Really???

July 23, 2013

 

I am not one to rant about court decisions (okay, maybe I get on my soapbox every once in a while) but the decision of the Iowa Supreme Court in Nelson vs. James H. Knight DDS, P. C. is one that is off base.  The Iowa Supreme Court had a chance to get it right, not once but twice and whiffed it each time.  (I know there is probably a good reason, I’m not a Supreme Court Justice – a.  I don’t have a black robe, b. my IQ is a lot less – I get that.)

Melissa Nelson worked for Dr. Knight for 10 1/2 years as a dental assistant. By all accounts, she was a good employee. Melissa looked up to Dr. Knight as a father figure. During the last year and a half of her employment, Dr. Knight complained to Nelson that her clothing was too tight, revealing and “distracting.” He would later testify that he made the statements because, “I don’t think it’s good for me to see her wearing things that accentuate her body.” Dr. Knight further admitted to sending a text message advising Nelson that the shirt she wore was too tight. Nelson responded she felt the doctor was not being fair, to which the doctor replied that it was a good thing that Nelson did not wear tight pants because then he would get it coming and going. He also told her that if she saw his pants bulging, she would know her clothing was too revealing. Dr. Knight also send a text and Nelson, which she did not answer, asking her how often she experienced an orgasm.

 

In late 2009, Dr. Knight’s wife found out he was texting Nelson and confronted him.  She demanded that he terminate Nelson’s employment. They both consulted with the pastor at their church who agreed that Nelson should be terminated. At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office, and with a Pastor present, read a prepared statement to Nelson telling her that she was fired. According to the statement, their relationship had become a detriment to Dr. Knight’s family and that for the best interest of Dr. Knight and his family, the two of them should not work together. She was given one month’s severance pay. Nelson started crying and told the doctor that she loved her job. Later that day, Nelson’s husband called the doctor and the doctor admitted that he feared he would try to have an affair with Nelson down the road if he did not fire her.

 

The Iowa Supreme Court, citing several decisions out of the 8th Circuit Court of Appeals that interpreted Title VII, held that an employer does not engage in unlawful gender discrimination by discharging a female who was involved in a consensual relationship that has triggered personal jealousy. According to these line of cases, if a female is seen as a threat by the owner’s wife, the owner is entitled to terminate the employee without any repercussions. In supporting its decision, the Supreme Court pointed to an 8th Circuit case in which the court held that it was acceptable for an employer to hire people that have that “Midwestern girl look.” What they missed is that this employer was imposing this up front as a “term and condition” of employment. Nelson, on the other hand, did nothing but perform her work and looked up to the doctor as a father figure. The fact that the doctor couldn’t keep his dirty mind (my opinion) off this young woman is not her problem.  It is an issue that should be addressed between his wife, his pastor and, perhaps, a marital counselor.

 

The doctor was operating a business. The issues that his wife may have had with regard to his feelings towards an employee are issues between a husband and wife and should not have entered the realm of the employment relationship. Let’s take this one step further. Under the reasoning of the Iowa Supreme Court, if the doctor’s wife objected to him working with people of color, then the doctor would be perfectly justified in getting rid of any employee of color just because the doctor’s wife felt it was necessary. Similarly, if the doctor’s wife didn’t want him working with somebody that was gay, again the doctor has a perfectly acceptable reason to terminate the employee.

The Iowa Supreme Court attempted to justify its decision by characterizing the conduct as being consensual. The fact of the matter is that in the employer-employee relationship context, particularly in the case of smaller business, the employer has a disproportionate degree of leverage and women and people of color throughout this country, on a daily basis, tolerate comments or conduct from their employer because they have a family to support and they need a J-O-B.

 

It’s when I read decisions like this and I’m glad our practice is in Washington state. Here are my takeaways for this week:

  1. Be glad you don’t work in Iowa or in any jurisdiction covered by the Eighth Circuit or the 7th Circuit Court of Appeals.

  2. If you’re an employer or member of management and you’re having improper thoughts about an employee or you feel compelled to make inappropriate comments; don’t. Your employee doesn’t want it.  Your employee wants to do their job, get paid and go home. You aren’t all that and a bag of chips.  Your misguided attempts to have a workplace relationship will put you on the receiving end of a lawsuit under the best of circumstances and could place you in the unemployment line.

  3. If you’re exposed to an employer that engages in this type of inappropriate conduct you’ve got some decisions to make and action to take. Be clear that this type of conduct is not acceptable. I know this is more difficult if you’re working for a small company than a large company. A large company has the luxury of transferring one of the parties to a different work area, whereas a small company does not have that luxury.  If you don’t feel comfortable about reporting the inappropriate conduct, speak to a lawyer who can advise you on what to do.

  4. If you are going to offer a severance package to an employee, always condition it on the execution of a full release of liability.  Had the Doctor made a more generous offer and conditioned receipt of it upon the execution of a release of liability, he would have saved a considerable amount of attorney’s fees and kept his business private.

  5. Don’t go to Iowa looking for work, unless you’re positive your employer does not have issues. (Yes, I know I will get lots of hate mail from the Hawkeye state).

Until next week,

Rod

 

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