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

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.

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Jordan Bergus
Attorney
Paulus Law Firm, LLC

Former Coach Mike McQueary of Penn State University Files Whistleblower Suit Against University

Former Penn State University Assistant Coach Mike McQueary has filed suit against the University alleging that he was terminated because he was effectively a whistleblower in the Sandusky case. It is well known at this point that McQueary saw Sandusky engaging in illegal actions at the football facilities and reported the incident to Head Coach Joe Paterno. McQueary also reported the incident to ivestigators from the Pennsylvania Attorney General's Office.

McQueary is alleging that he was the only the Penn State Assistant Coach to not be allowed to interview when now-Head Coach Bill O'Brien took over after Paterno's resignation. Essentially, McQueary is alleging that he was wrongfully terminated for whistleblowing, which is a practice that public policy encourages.

Both Missouri and Kansas have adopted causes of action for Wrongful Termination in Violation of Public Policy. Several practices, including whistleblowing, are considered to be viable causes of action, although this is an area of law that is rapidly evolving.

If you have been terminated for engaging in conduct that public policy would encourage or for refusing to take part in illegal conduct, please contact the Paulus Law Firm to see what rights you may have.

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Jordan Bergus
Attorney
Paulus Law Firm

Kansas Supreme Court Upholds Noneconomic Damage Cap in Tort Cases

In Miller v. Johnson (No. 99818), a case handed down just this past Friday, the Kansas Supreme Court upheld the constitutionality of the Kansas Tort Claims Act.

The KTCA caps noneconomic damages in tort claims to $250,000. The trial jury returned a verdict $325,000 excess of this amount, but the trial court set it aside in favor of the statutory cap. The opinion is very lengthy and does not break down easily into component parts, but it appears that the KTCA is here to stay for good. Long story short, the Court said that the legislature's imposition of limits in awards does not violate the separation of powers, in that it does not invade the province of the jury. On the plus side, the Court did reinstate $100,000 for future medical expenses.

Aside from the noneconomic cap, the KTCA also imposes a punitive damages cap of $5,000,000 at best, depending on the circumstances.

For information on how this decision may affect you, please give us a call at the Paulus Law Firm.

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Jordan Bergus
Attorney
Paulus Law Firm