Does Your Boss Have the Right to Fire You For Being Physically Irresistible?
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Most people would probably agree that it isn’t fair for an employer to fire a worker because of his or her looks. But in America, employment-at-will is the law of the land. That means you can be fired at any time, for almost any reason, or for no reason at all. So fair doesn’t really enter into it. You can be heaved out onto the street for anything from the color of your shirt, to your haircut, to your sexual and reproductive choices.
There are some significant exceptions to this state of affairs. Most union contracts include “just cause” provisions, which mean an employer has to have a good reason to fire you, and many public employees are similarly protected. Title VII of the Civil Rights Act defends against employment discrimination by race, gender, age, religion, disability, genetic makeup, or national origin. (Some states protect LGBTQ people against employment discrimination, but the feds do not.) But these protections are sometimes difficult to enforce, as few employers explicitly cite race or gender as the sole reason for sacking a worker.
But what if your boss fires you simply because he or she just thinks you are too damn attractive? Do Title VII’s protections cover such an eventuality? Don’t bet on it. A case decided this July by the Iowa Supreme Court seems to show that when Title VII clashes with employment-at-will, the Civil Rights Act doesn’t necessarily come out on top.
Here are the facts of the case. Nothing physically sexual occurred between Dr. James Knight, a dentist, and his assistant, Melissa Nelson. But he made several suggestive comments toward her, which she neither denounced nor reciprocated. Nelson had worked in Knight's dental offices for over 10 years and their relationship, as described in the court’s decision, appears to have been friendly. It included text exchanges about non-work related issues.
In the year and a half before Nelson was sacked, Knight began commenting, in a salacious fashion, about the supposed tightness of her clothing. On one occasion he told her that she would know if her clothing was too tight because his erection would be visible through his pants. (Nelson denies that her clothing was ever anything other than professional and that she always wore a lab coat when Knight asked her to.) When she mentioned infrequent sex at home, the doctor responded: “[T]hat’s like having a Lamborghini in the garage and never driving it.” On another occasion he texted her to ask about the frequency of her orgasms. She did not respond.
Near the end of 2009, Knight’s wife learned that her husband had been texting with Nelson. After consulting with their pastor, they agreed Knight should fire Nelson. He did so on Jan. 4, 2010, presenting her with an envelope containing a month's severance pay. When Nelson’s husband confronted Knight, the latter admitted, according to court documents, “that she was the best dental assistant he ever had…[and] nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.”
On Aug. 12, 2010 Nelson brought action against Knight, claiming that he discriminated against her because of her gender, which is illegal under both Title VII of the Civil Rights Act and Iowa state law, and that she never would have been fired had she been male. (Most states have laws similar to Title VII on the books, which is why this ended up in state, not federal court.) Nelson did not argue that his behavior constituted sexual harassment. Last December, the Iowa Supreme Court decided against her, but then agreed to reconsider the case. However, its July 12 decision came to almost the exact same conclusion, with a bit more emphasis on the limits of the case: “The employee did not bring a sexual harassment or hostile work environment claim; we are not deciding how such a claim would have been resolved in this or any other case."
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.”
Got that? Even though Nelson never reciprocated the sexual banter, she is somehow culpable for Knight’s inappropriate comments and has no recourse under the law because she had a relationship beyond rigid professionalism with her boss of over a decade. But who doesn’t develop friendships and other personal bonds with those who have authority over them? In the absence of just-cause firing laws or union protections, friendly relations with a boss is probably one of the best protections against unjust firing. After all, under employment-at-will your boss can legally fire you just because he doesn’t like you. But under employment-at-will your boss can also legally fire you because he likes you too much.
So what can you do if faced with a similar situation? In theory, the best protection would probably be to immediately inform the offending superior that his comments are making you uncomfortable. This would conceivably make the wrongdoer stop, or if worst comes to worst, provide a strong basis for a sexual harassment suit. If possible, inform another manager and keep a detailed account of dates and times of the incidents. If the company is large enough to have a Human Resources department, report the unwelcome attentions to a representative or harassment hotline.
But such actions are easier typed than done. What if the creep in question is the highest authority, as Knight was? Human Resources departments, while better than nothing, are no substitute for a third party arbitrator or the option of independent action. With a power imbalance of this magnitude, it'd be nice to have someone on your side who isn’t being paid by the same employer that could potentially be legally implicated in your complaint. Mersich notes that the National Labor Relations Act protects workers engaged in “other concerted activities for the purpose of…mutual aid or protection” and that “I often advise clients to bring other employees into a complaint about lawful (but awful) behavior. When you act on behalf of others, even if they don’t ask you to, you are engaged in ‘concerted’ activity.”
But he admits that Nelson had no such option, as she was the sole object of Knight’s attentions.
“I think this employee might have been better off if the moment her boss started saying sexually oriented things to her she had objected, and objected vociferously…[instead] she understandably kind of brushed it off and didn’t really engage,” says Bagenstos. “Now that is a double-edged sword for an employee. You don’t want to rock the boat. If you complain too much your boss may not like you; most people want to make day-to-day relations go smoothly. If you complain, your boss might fire you and you might not be protected against being fired.”
Do you have workplace questions of your own? Email AlterNet's labor editor email@example.com and we'll try to answer them.