Let’s play claim or no claim. Here is the question as framed by the Iowa Supreme Court: Can an employee who has not engaged in flirtatious conduct be terminated lawfully simply because the boss views her as an irresistible attraction? The answer is “yes.”
Because the Iowa high court decided the case on appeal from a grant of summary judgment, the court notes that it’s sketching out the facts in Melissa Nelson, v. James H. Knight DDS, PC and James Knight in the light most favorable to the plaintiff.
“Dr. Knight” (which the court uses to refer to both defendants collectively) hires a woman as a dental hygienist. She works for him for more than 10 years and performs well. In the last six months of her employment, Dr. Knight admits that: he told her that her clothing was too tight; he once texted her to ask how often she experienced an orgasm; and, after she allegedly said she infrequently engaged in sex, he told her, “That’s like having a Lamborghini in the garage and never driving it.”
There is more, but the reader gets the idea. They texted one another lot. The court noted the plaintiff “considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him.” When the dentist and his kids went to Colorado for a vacation, his wife, who was also an employee of the dental practice, discovered the texting. (Note for lawyers propounding discovery requests: It is texting now, no longer email, that ensnares.) Jeanne Knight told her husband upon his return that the hygienist was a threat to their marriage and had to be fired. They sought religious counsel from their senior pastor, who agreed that was the right thing to do.
So, Dr. Knight told the hygienist she was fired, with the pastor present as support, and read a prepared statement that his relationship with her had become a detriment to his family and thus she had to go. He then gave her what the court called an “ungenerous” severance of one month’s pay.
The hygienist’s husband asks to meet with the dentist, which the dentist does with the pastor as wingman. Here is the court's description: “In the meeting, Dr. Knight told Steve Nelson that Melissa Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve Nelson that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.”
Melissa Nelson sued for gender discrimination. The trial court granted summary judgment, and the Supreme Court affirmed. Her argument: But for the fact that I am a woman, my termination would not have occurred, and thus I was fired because of my gender.
The court on Dec. 21 rejected this circular argument, noting “federal caselaw to the effect that adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable under Title VII.” The Iowa court explained that courts have found no gender discrimination where a plaintiff was terminated because her boss wanted to conceal a previous affair from his wife, where the plaintiff’s supervisor fired her because he was jealous of her relationship with another employee, and where a supervisor terminated a plaintiff after they broke up. If none of these scenarios was gender discrimination, than neither was this case.
Everyone has heard the phrase “The devil made me do it.” But that wasn't the defense here. Rather, the defense essentially was, “The devil is going to make me do it.” The court held that this is a valid defense because it was not related to gender but, rather, to sexual jealously.
In an odd passage the court observes: “Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.”
But why should the number matter? Perhaps the court was suggesting a bizarro world of a boss who hires women with the intention of firing them? (Although this case is pretty bizarro itself.) Or maybe the court was suggesting that, if the scenario repeats itself, then — at least on summary judgment — there is a fair inference that the asserted reason of jealousy is not the true reason? Regardless, I think the court got it right.
A final observation: Just because an employer can do something does not mean it should. The decision to take a person’s livelihood away should not be taken lightly. It is also a moral decision, and lawyers should counsel employer clients to at least consider — even if the client doesn’t end up choosing — other options.
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