In December 2012 the Iowa Supreme Court issued a stunning opinion, holding that an employer was within his rights to fire an employee he found “distractingly” attractive and a threat to his marriage because he feared he would be unable to stop himself from having an affair with her. The decision caught so many off guard that the court took agreed to give the case a second look.
As it turns out, that second look wasn’t much better than the first. In a unanimous decision, the all-male Iowa supreme court again held that firing an employee for being too attractive was OK, but this time limited the decision to the particular facts of the case at issue, meaning the decision isn’t intended to have a wide reach. That said, the newer, narrower decision is still plenty bad.
In 1999, Dr. James Knight hired Melissa Nelson to work as a dental assistant in his office. At that time, Nelson had just received her community college degree and was 20 years old. Nelson worked for Knight for the next ten years, and by all accounts she was a model employee. During the last six months or so of Nelson’s employment, Dr. Knight and Nelson started texting each other outside the workplace. The texts were reportedly mostly innocent. Both Dr. Knight and Nelson have children, and some of the texts involved updates on the kids’ activities and other relatively innocuous matters. According to court documents, Nelson testified that she 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.
But there’s no denying at least some of the texts were sexual in nature. On one occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would “get it coming and going.” Dr. Knight also testified that after Nelson allegedly made a statement regarding infrequency in her sex life, he responded to her, “[T]hat’s like having a Lamborghini in the garage and never driving it.” Nelson testified that Dr. Knight once texted her to ask how often she experienced an orgasm. Nelson didn’t answer at all, not even to let him know she was offended.
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In late 2009, Dr. Knight took his children to Colorado for Christmas vacation. Dr. Knight’s wife Jeanne, who was also an employee in the dental practice, stayed home. While her husband was out of town Jeanne Knight found his text messages to Nelson. When Dr. Knight returned home, Jeanne confronted her husband and demanded that he fire Nelson. Both of them consulted with the senior pastor of their church, who agreed with the decision.
At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office. He had arranged for another pastor from the church to be present as an observer. Dr. Knight, reading from a prepared statement, told Nelson he was firing her. The statement said, in part, that their relationship had become a detriment to Dr. Knight’s family and that for the best interest of Dr. Knight and his family and Nelson and her family, the two of them should not work together.
According to court documents, Dr. Knight then handed Nelson an envelope that contained one month’s severance pay. Nelson started crying and said she loved her job. Nelson’s husband Steve phoned Dr. Knight after getting the news of his wife’s firing. Dr. Knight initially refused to talk to Steve Nelson, but later called back and invited him to meet at the office later that same evening. Once again, the pastor was present. In the meeting, Dr. Knight told Steve that Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he had ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve 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.
Nelson sued, claiming Knight discriminated against her on the basis of sex. Nelson did not claim she was sexually harassed or was subject to a sexually hostile work environment, simply that Dr. Knight fired her because of her gender and that he would not have terminated her if she was a man. Dr. Knight responded that Nelson was terminated not because of her sex but because of the nature of their relationship and the perceived threat to Dr. Knight’s marriage. Nelson’s response was that neither the relationship nor the alleged threat would have existed if she had not been a woman.
Workplace affairs are, by definition, messy, and the law has done a horrible job trying to sort them out. In Nelson’s case, the court went to great lengths on this second read to make it clear it did not view Title VII and the Iowa Civil Rights Act as “general fairness laws,” noting that an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based on the employee’s protected status. Knight’s treatment of Nelson may be unfair, but because it was based on his feelings for her and not her gender, that treatment was lawful.
It’s a tortured distinction and one that raises significant concerns for employees moving forward. The position embraced by the court will become a way to avoid liability for discrimination by relying on the stereotype that heterosexual men are unable to stop themselves from behaving inappropriately around attractive female co-workers. Any employer can justify a series of adverse employment actions against persons of one gender by claiming, “My spouse was jealous.” But the all-male Iowa supreme court was not concerned with this argument, choosing instead to look out for all those employers who they feared would face lawsuits after attempted workplace affairs went south.
In many ways the entire decision is a reflection of just how pervasive purity culture is, and shows that Nelson’s claims were doomed from the start. Nowhere is Knight, the admitted aggressor in this case, held to any standard of accountability here—not by his wife, his pastor, or the law. Every institution reinforced that idea that it was Nelson to blame and that the solution to Knight’s “problem” was to fire her. And to get to that conclusion, each institution had to overlook the fact that Knight only employs women, including his wife, that it was Knight who sent Nelson sexually pointed texts that she ignored, and that it wasn’t until his wife discovered the indiscretion, and on her demand, that Knight acted to change that behavior, by firing Nelson. And the court takes great pains to applaud Knight for seeking out the help of his pastor and following the wishes of his wife and completely ignores that none of those actions represent traditional paths of resolving an employment dispute. Who needs human resources when you have your pastor at the ready?
What was Nelson, or any other employee in her position to do that she didn’t already? According to the National Women’s Law Center, almost half of all working women have experienced some form of harassment on the job, but only between 5 and 15 percent formally report problems of that harassment to their employer or employment agencies. In Nelson’s case, she had, essentially, the makings of a harassment claim, except that she was fired before she was propositioned. The proposition Knight made clear was coming. It was not a question of if but a question of when. So, knowing he would be unable to control himself, he fired her instead. It’s the employment law equivalent of victim-blaming, and the Iowa supreme court endorsed it whole-heartedly.
In her dissenting opinion in Vance v. Ball State, the U.S. Supreme Court decision that narrowed beyond recognition the definition of “supervisor” for purposes of workplace harassment claims, Justice Ruth Bader Ginsburg accused her conservative colleagues of being drastically out of touch with the realities of workplace relationships and the challenges women face when the justices authored a decision that refused to recognize the realities of employee-on-employee harassment. As it turns out, being drastically out of touch with the realities of workplace relationships is pretty common for courts these days.