Does Your Boss Have the Right to Fire You For Being Physically Irresistible?
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But despite the supposed narrowness of the decision, there is a lot to learn from the (all male) Iowa Supreme Court’s underwhelming response to Nelson’s manifestly unjust firing.
“[T]he loss of a job is often devastating to an employee, and at times unfair, these considerations do not play a role under our employment-at-will doctrine,” writes Iowa Chief Justice Mark Cady in a concurrence (beginning on page 18).“ [T]he unfairness is enhanced for employees when the termination results from a personal relationship with the employer because only the employee suffers the loss of a job, while the other participant in the relationship does not....the law against workplace discrimination only seeks to protect a woman from discrimination based on her status as a woman in the workplace, not on her consensual sexual relationships or personal affiliations with her employer.”
Never mind that in this case there was no romantic relationship or that the flirtatious and suggestive comments were entirely instigated by the employer. The court’s confused, surface-deep analysis is a testament to the limits plaintiffs may run up against when they try to assert what few protections they have within the larger context of employment-at-will.
“The courts tend to read anti-discrimination laws somewhat narrowly in light of [employment-at-will]” says Samuel Bagenstos, professor at the University of Michigan’s law school and, until 2011, the second highest ranking official in the Justice Department’s Civil Rights Division. “This is a clear case of sex discrimination, if she had not been a woman none of this would have happened. Her sex was intimately bound up in the reason she was fired and the reason the court didn’t want to see that is that recognizing that would cut too far against the employer’s prerogative to fire employees at will.”
It’s impossible to say what might have happened had Nelson taken Knight to court for sexual harassment rather than for gender discrimination. But it seems plausible that she could have been more successful with such a claim.
Protections against sexual harassment also fall under Title VII and such cases tend to fall into two categories. Quid pro quo sexual harassment occurs when an employer or manager makes unwanted sexual advances, and if refused, terminates or otherwise punishes the target of his attentions. The other major form is hostile work environment. This is when an employer initiates comments, contact or other conduct non-consensually, and creates a work environment that is “objectively offensive and so subjectively unwelcome to the employee that it would be a reasonable choice for anyone in their circumstance to quit that job,” in the words of Vincent Mersich, a Pittsburgh-area labor lawyer.
Knight’s remarks are clearly inappropriate and were not reciprocated, fulfilling the objective criteria, but according to Mersich could have been harder to prove the subjective criteria. By all accounts, Nelson loved her job and considered her employer “a friend and father figure.” (The quote is from the court’s decision.) She never reprimanded Knight for his most inappropriate remarks (although she did tell him he wasn’t being fair about the supposed tightness of her clothing). The court basically decided she could be wrongfully discharged because she took part in a friendly and consensual relationship with her employer.
“[A]n employer cannot legally fire an employee simply because the employer finds the employee too attractive or not attractive enough,” writes Cady. “While these comments would commonly be viewed as inappropriate in most any setting and, for sure, beyond the reasonable parameters of workplace interaction, they nevertheless were an undeniable part of the consensual personal relationship enjoyed by Nelson and Knight. The banter, at least, revealed a relationship that was much different than would reasonably be expected to exist between employers and employees in the workplace.”