People often complain that California employment law is bizarre. My colleagues around the country call our judges “fruits and nuts.” To the contrary, however, while our legislature is farther left than most states’ legislatures and our juries are more profligate than most, our appellate courts are relatively centrist. The award for the most bizarre supreme court employment decision of 2012 goes to Iowa and its dismissal of dental hygienist Melissa Nelson’s sex discrimination claim against her boss, James Knight, DDS.
Too sexy for your lab coat
Nelson began working for Knight after getting her community college degree in 1999 at age 20. She never flirted with him or behaved inappropriately. She loved her job, and Knight called her “the best dental assistant he ever had.”
Knight was less appropriate, however. He told Nelson that if his pants bulged, she’d know her clothes were too revealing. He once texted her that her shirt was tight and that it was “a good thing [you] did not wear tight pants because then [I] would get it coming and going.” He asked how often she had orgasms, and upon learning she had sex infrequently, he responded, “[T]hat’s like having a Lamborghini and never driving it.”
In late 2009, Knight’s wife, Jeanne, discovered that he and Nelson were texting each other, called her “a big threat to our marriage,” and insisted that she be terminated. Knight fired Nelson because “their relationship had become a detriment to [his] family.” Nelson’s husband asked Knight to reconsider. Knight replied that she had done nothing inappropriate and there was nothing going on between them―but he “feared he would try to have an affair with her down the road if he did not fire her.”
Nelson sued Knight for sex discrimination. He denied the charge, arguing that she wasn’t fired because of her sex (indeed, he only hired women) but because she was a threat to his marriage.
The Heckler’s Veto
Officials used to prevent minority groups from assembling and speaking in public because they were a threat to public safety―not because members of the group would act unlawfully, but because others might react violently. That theory―called “The Heckler’s Veto”―has been roundly rejected under First Amendment jurisprudence. It was recognized as fundamentally wrong to limit and restrict legally protected conduct just because bigots might react violently and unlawfully. Unlawful reactions to lawful conduct shouldn’t be rewarded.
Of course, that’s exactly what the Iowa Supreme Court rewarded in this case. Knight couldn’t control his libido and reacted to his assistant like a 12-year-old boy glimpsing cleavage for the first time. Likely recognizing her husband’s lack of control―and rather than telling him to knock it off and grow up―his wife forced Nelson out. Nonetheless, the supreme court approved the termination expressly “because the employer’s wife, due to no fault of the employee, [was] concerned about the nature of the relationship between [Knight and Nelson].”
Public policy in the Hawkeye state
As my readers know, employment law is a creature of public policy, defining one of the basic relationships in society. We could have developed the policy that sexual tension is part of the human condition, people are necessarily slaves to their passions, and employees have to deal with it in the workplace. Under that policy, the law could have developed as the Iowa Supreme Court suggests―if things get too sexually tense between an employer and his employee, and the employer or his sexual partner feels threatened, the employee has to go. I guess the same may be true if your spouse feels threatened by gay, Jewish, or Latino employees as well. That may be the law on another planet, or in some alternate reality, but not in California, and not under federal law. Knowing that romantic feelings are hard to suppress, prevailing law (in every state I know of other than Iowa) nonetheless demands that people control their feelings in the workplace.
Nelson made only one mistake: She filed her claim with the Iowa Civil Rights Commission under state law rather than with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964. I don’t think any employee will make that mistake again, knowing that a note from your spouse overrides the law, fairness, and justice in Iowa.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. You can reach him at 415-541-0200 or schickman@freelandlaw.com.
With the story presented the way it was, I might have to concur. But reading a little between the lines, it seems that Nelson was texting back. Maybe nothing “inappropriate” had happened yet, but it sounds like pretty “inappropriate” to me that she was texting back and basically encouraging her boss. I agree with the wife — there was very definitley a threat of an affair coming. I would have demanded she be terminated as well. That’s just plain common sense. Shame on Nelson for playing along with her boss.
Under the theory of employment at will, it can be for a good reason, bad reason or no reason at all. The termination was not based on any Federal or State protected job category. Being too pretty is not a protected class.
All the legalities aside, is working for this dentist a place she really wants to be?? Common sense would say “no”. His lack of ethics and his immoral behavior would support that.
So the obvious question is, why didn’t she leave BEFORE he terminated her? We may never know.