Sunday, December 23, 2012

It's OK in Iowa to Fire a Woman for Being an "Irresistible Attraction"

Melisa Nelson started working as a dental assistant in 1999 at age 20 for Dr. James Knight in Fort Dodge, Iowa after graduating from community college. She worked for Dr. Knight for 10½ years. He is now 53.

Both the dentist and the dental assistant were married with children. She viewed him as a ”father figure.” Both marriages had lost much of their romance.

They began texting each other outside of work, mostly about family issues. At one time when she texted about infrequency of sex in the marriage, he responded “That’s like having a Lamborghini in the garage and never driving it.”

Beauty is in the eyes of the beholder; it is subjective, but his feelings clearly started getting aroused. He complained to her about wearing tight clothes, although she claims she wore scrubs on the job. He once said to her “that if she saw his pants bulging, she would know that her clothing was too revealing.”

The record shows no evidence Melisa flirted with her boss or dressed provocatively to arouse him.

Perhaps the real question is “Can a woman be too beautiful?”

The answer may seem obvious, but let me tell you about two law students several decades ago interviewing for the same opening with a small law firm. Let’s call the young man Tony and the young woman Helen of Troy, for she was a beautiful Greek American. Both were highly qualified and competent.

Tony got the job and Helen did not. He asked the senior partner many months later why he and not Helen was offered. The answer was “Because I would never be able to explain Helen to my wife.”

We know people discriminate on the basis of looks, often on first impression. We know hiring decisions are often based on attractiveness. Mad Men may be a TV show, but I remember the two companies I worked for as an undergrad in the mid 1960's. One was a large, national insurance broker and the other an import-export company, both in San Francisco.

You were met by the reception desk when you got off the elevator. In both cases the receptionist/PBX operator was a beautiful, single young woman. That was no coincidence.

Airlines, especially PSA and Braniff, emphasized sexuality in their flight attendants. The industry, with the exception of Delta, only hired young, single women as flight attendants. The stewardesses would automatically lose their jobs upon marriage or turning 35 – all of which is clearly illegal under Title VII of the Civil Rights Act of 1964.

My long term dentist died when I was in law school. My new dentist had a staff of about 10 – all attractive young women. Perhaps a coincidence, but I doubt it.

That brings us back to Dr. Knight, a dental geezer experiencing middle age male menopause. He engaged outside the office in a year and a half of texting about personal matters with an employee who was turning him on.

His wife, who also worked in the office, discovered the texts in 2009. She demanded that Melisa be fired. After consulting with their pastor, rather than an employment discrimination lawyer, they agreed. The otherwise exemplary employee was fired in 2010 with one month of severance pay after 10 ½ years of loyal work.

The dentist explained to Melisa’s husband that she was a big threat to the dentist’s marriage and that he might attempt to have an affair with her.

She filed suit under Iowa’s Employment Discrimination Act. The Iowa Supreme Court on December 21, 2012 unanimously ruled against her (Merry Christmas Melisa).

The Court cited precedence, not fully applicable, to hold she was not terminated because of impermissible discrimination or sexual harassment, but to save his marriage.

Justice Edward M. Mansfield, wring for the Iowa Supreme Court, said “The question we must answer is …. whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simple because the boss views the employee as an irresistible attraction.”

This decision, a pdf of which is available on line, will not go down in legal history as a leading case abrogating gender based discrimination. It does give us the term “irresistible attraction” which is not to be confused with the hallowed term “attractive nuisance.” 

The purpose of the anti-discrimination statutes is to do just that – prohibit discrimination on the basis of sex or other proscribed classes – not to save a marriage, not to promote domestic tranquility at home. If the spouse is jealous because of the texts, or for other reasons, then the problem lies within the marriage, as with the law firm senior partner, and not the woman. Trust is clearly lacking in the marriage or the spouse has some deep-rooted underlying issues.

The Court held the termination was based on “feelings and emotion” – not gender. Much discrimination is based on feelings and emotions, which is not otherwise protected by the anti-discrimination statutes.

We know the law would not protect his action if the wife had told him to fire a “Black” or “Latino” to save their marriage because she had bias towards non-whites.

The Iowa Supreme Court was wrong. Melisa Nelson in an interview a few days ago said it best “I don’t think it’s fair.”

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