Saturday, December 22, 2012

Iowa Supreme Court Decides Employers Can Fire Women Who Are "Irresistibly Attractive?"

Normally, I would preface my blogs with a picture, but I would like to keep this post safe for work and I can only imagine that a picture of an "irrestibibly attractive" employee could get some of my readers in trouble...

Just yesterday, the Iowa Supreme Court, which has recently been right on the forefront of civil rights matters, handed down an incredibly confusing and highly illogical opinion regarding gender discrimination. In Nelson v. Knight, the Court upheld summary judgment in favor of the employer.

Yes. You read that right. Summary judgment. Indeed, no facts were at issue in this case. Essentially, what the Court said was what Nelson pleaded did not form a prima facie case of sex discrimination.

Well, let's talk about those pesky facts a bit (and for the time being, let's skip the employment setting). Nelson was a younger women. Knight was a older, married man. Nelson and Knight exchanged innocuous text messages outside of work. Nelson thought of Knight as a father figure. Knight's wife became jealous of their relationship.

But wait there is more. Knight told Nelson that her tight fitting clothing was distracting and revealing, Nelson denies that to be the case. Okay, fine. Then Knight told Nelson that "if she saw his pants bulging, she would know her clothing was too revealing." Umm, what now? Nelson once commented that she had an inactive sex life, Knight said that was like having a Lamborghini and never taking it out of the garage. After some more innocuous texts, Knight's wife demands he fire Nelson as she was a threat to their marriage.

Ok, let's step back a second. Iowa follows Title VII in that it is a motivating factor state. Nelson had to prove that she was a member of a protected class (female), suffered an adverse employment action (termination), and that her being female was the motivating factor for the adverse employment action.

Granted, Title VII's standard is a fairly tough one and notoriously difficult to survive summary judgment, but where is the legitimate business reason for termination here? Was she a bad employee? No, Knight said himself she was the best he ever had. Was she scaring away clients with her tight-fitting clothing? No. I cannot even think of any truly legitimate reasons based off these facts.

So why summary judgment? As the Court so eloquently put it, the decision was motivated by "feelings and emotions" and fear of losing his wife. Moreover, he employed other women and replaced Nelson with a woman--clearly there was no way this man could be gender discrimination.

Fine, say what you will Court. Why was she fired? Because she was an attractive woman and he was a man. If Nelson was Daniel Craig or David Beckham, she would still have a job because Knight's wife would have nothing to be jealous of (and Knight would likely have more female business). But no, Knight was attracted to an employee and fired her because of it.

The Court engages in mental gymnastics to justify the decision, such as stating that civil rights laws are there to protected whole classes and Knight replaced a female with a female so... They cite to some case law that states employees who engage in sexual activities with their bosses can later be fired as support for the idea that she "asked for it" with her clothing.

Most interesting is how the Court addresses the slippery slope concept. Nelson asked, what if he fired multiple women because of attraction or his wife's jealousy? Well, the Court said that those would be different cases, as if the number of people affected has any bearing on the implementation of the civil rights laws.

I could on for days about this decision... Here is the takeaway for our local readers. Fortunately, in Missouri, the court employs a contributing factor standard. This means that if discrimination plays at all into the adverse action it is discrimination. Even if discrimination is one percent of the decision to fire and the remaining ninety-nine percent is legitimate, a prima facie case can be made. Kansas law is more akin to the law in Iowa and Federal law.

One parting shot- the Missouri legislature is looking to gut the Missouri Human Rights Act (yet again) and potential targets could be the contributing factor standard. Please contact your local representative and tell him or her to stand up to discrimination.

If you have any questions about discrimination in the workplace as it applies to you, please do not hesitate to call Jordan Bergus at the Paulus Law Firm- (816)581-4040.

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Jordan Bergus
Attorney
Paulus Law Firm, LLC

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