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An Employee Too Hot To Handle

Suppose, in the weeks after 9/11, I had fired a longtime employee who happened to be a Muslim because I was afraid my emotions might have led me to behave inappropriately.

You might expect my former employee to sue me for illegally discriminating on the basis of her religion. You would probably further expect that I would lose that lawsuit. And you probably would not expect this result to change simply because I happened to hire another Muslim to replace the fired employee. The issue, after all, would not have been whether I illegally discriminated against all Muslims on the basis of their religion; the issue would be whether I illegally discriminated against the particular individual I had fired.

But this is not the way that some courts are applying state and federal anti-discrimination laws, as Melissa Nelson, an Iowa dental assistant, recently discovered.

Nelson, a married mother, worked for dentist James Knight for more than a decade. He reportedly said she was the best dental assistant he ever had. But Knight became sexually attracted to Nelson, and when the dentist’s wife - who also worked in his office - discovered this, she forced him to choose between his assistant and his marriage.

Whatever his skills as a dentist, Knight does not sound like a man whose personal charm would often sweep females off their feet. He allegedly told Nelson that if she saw his pants bulging, she would know her clothes were too revealing. He once texted her after work to complain that the top she’d worn that day was too tight. When she protested that this was unfair, he replied that it was good that she had not worn tight pants too, because then he would get it coming and going.

Nelson did not appear to let these comments bother her. She testified that she saw her boss as a father figure, and that she respected him but did not flirt with him. They began exchanging after-work text messages about six months before she was fired. Some were innocuous notes about their families; others went further. Nelson said she ignored one text in which her boss asked how often she experienced an orgasm. She never complained or asked him to stop, however.

Things went south when Jeanne Knight, the dentist’s wife, discovered the texts. She and her husband consulted their pastor, who agreed that if the Knights’ marriage was to be salvaged, Nelson had to go. The dentist thereupon summoned his assistant to a meeting, attended by another pastor, at which he fired her. He gave her a month’s severance pay. Nelson’s husband later spoke to Knight, to no avail. Knight told Steve Nelson that he was afraid that he would not be able to resist pursuing an affair if Nelson remained his employee.

Nelson and her lawyers thought they had a pretty good case under the Iowa Civil Rights Act, which makes it illegal to “discharge any employee…because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion or disability of such…employee, unless based upon the nature of the occupation.”

But the fired employee never got the chance to present her case to a jury. An Iowa district court judge dismissed her suit, and the state Supreme Court agreed, ruling that Nelson was fired not because of her gender, but because “she was a threat to the marriage of Dr. Knight.” In other words, Nelson lost her job not because she was a woman, but because she was a woman whom the dentist found dangerously attractive.

The precedents cited by the Iowa courts were mainly instances in which the fired employee engaged in consensual sex, or at least suggestive behavior, with a boss. In other cases, employees who were not involved in intimate relationships with a supervisor complained of favoritism toward a co-worker who was. In one case, the owner of a family business fired a female employee who worked with his son because the son’s wife became jealous without apparent reason.

“So the question we must answer is…whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction,” Justice Edward Mansfield wrote for the unanimous seven-member court, which happens to be all male.

“We ultimately think a distinction exists between (1) an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and (2) a decision based on gender itself,” Mansfield concluded . “In the former case, the decision is driven entirely be individual feelings and emotions regarding a specific person. Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.

“The civil rights law seeks to insure [sic] that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson’s view of the facts, Dr. Knight’s unfair decision to terminate Nelson (while paying her a rather ungenerous one month’s severance) does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson.”

The Iowa justices apparently do not consider Nelson’s irresistibility, in her employer’s eyes, to be a factor “that might be a proxy for gender.” And they apparently believe the Iowa statute is not violated by an adverse action against just one member of a protected group, though the statute seeks to protect “any employee.” The court is willing to give the employer at least one freebie. Mansfield himself wrote, “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 this strikes laypeople as nonsensical, that’s because it is. If I run a lunch counter, I don’t get to exclude one person from sitting at it because of his skin color as long as I allow other members of his race to dine freely. We settled this principle nearly a half-century ago.

Nelson v. Knight strikes close to home for me because my professional circumstances are much like the dentist’s. I own a business and my wife works there. In fact, she is in charge of hiring at our firm. For what it’s worth, I think our employees are all fine-looking people, regardless of gender.

But I run a business, not a harem. The people who work for me have bills to pay and households to support. As I see it, the law - as well as common decency - entitles them to a boss who does not inject matters like race, religion and sex into their work lives, and then makes them pay the price when someone else takes offense.

Let’s keep it simple: Any text or email that a boss sends to an employee ought to be one that either party’s spouse can read without cause for concern or embarrassment.

The law does not protect bosses from abuse by employees because it simply does not need to. An employer can insist that employees behave professionally and courteously, on pain of termination. As the Iowa court pointed out, case law already holds that an employer can fire an employee who consensually enters into an intimate relationship, even if the firing is unfair. The employee at least had control over his or her own conduct.

We cannot know at this point whether Nelson is wholly an innocent victim. It is possible that her conduct did, in fact, give her boss’s wife cause for concern. That is an issue that should be decided at a trial. The problem is that Nelson was not given a chance to have one. (Her lawyers have asked the Iowa Supreme Court to rehear her case, but such reconsideration hardly ever happens.)

My employees sign agreements when I hire them, which note that either of us has the right to terminate the arrangement at any time, for any reason. This is called an “at-will” employment contract. But anti-discrimination laws constrain such agreements.

I have the right to fire an employee for no reason at all. But I don’t have the right to fire her because she is a woman; the law has stripped me of that power. It follows that I therefore have no right to fire her because she is a woman whom I happen to find attractive. The law makes this my problem, not hers. If that is not clear to the courts by this late date, legislators ought to spell it out for them, ASAP.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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