We previously discussed the alarming ruling in Nelson v. James H. Knight, DDS, where the Iowa Supreme Court ruled in December that a dentist did not commit gender discrimination in firing an attractive female employee, Melissa Nelson, at the request of a jealous wife. The “irresistible attraction” rule led many of us to question the standards applied by the Court. Now, the Court has taken the exceptionally rare step of withdrawing the December 2012 decision and announcing that it will reconsider the case.
In her lawsuit, Nelson claimed gender discrimination rather than sexual harassment.
The opinion offers the following background information:
On several occasions during the last year and a half when Nelson worked in the office, Dr. Knight complained to Nelson that her clothing was too tight and revealing and “distracting.” Dr. Knight at times asked Nelson to put on her lab coat. Dr. Knight later testified that he made these statements to Nelson because “I don’t think it’s good for me to see her wearing things that accentuate her body.” Nelson denies that her clothing was tight or in any way inappropriate. During the last six months or so of Nelson’s employment, Dr.Knight and Nelson started texting each other on both work and personal matters outside the workplace. Neither objected to the other’s texting. Both Dr. Knight and Nelson have children, and some of the texts involved updates on the kids’ activities and other relatively innocuous matters. Nelson considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him.
Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going. Dr.Knight also recalls that after Nelson allegedly made a statement regarding infrequency in her sex life, he responded to her, “[T]hat’s like having a Lamborghini in the garage and never driving it.” Nelson recalls that Dr. Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. However, Nelson does not remember ever telling Dr. Knight not to text her or telling him that she was offended.
What is astonishing is that Nelson, 32, worked for Knight for 10 years and had an unblemished record. Both Nelson and Knight, 53, were married with children. Knight’s wife also worked in the office and discovered that Nelson and Knight were sending personal messages about their families. The wife demanded that Nelson be fired and the couple consulted with their minister who agreed that Nelson had to go.
Knight is described as a deeply religious man, though his communications to Nelson do not speak of religiosity or restraint in a pious man. Indeed, he comes across as pretty creepy. I always thought that religion taught the pious to resist temptation not eradicate its sources. Yet, Knight actually fired Nelson with a pastor present:
At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office. He had arranged for another pastor from the church to be present as an observer. Dr. Knight told Nelson he was firing her, reading from a prepared statement. The statement said, in part, that their relationship had become a detriment to Dr. Knight’sfamily and that for the best interests of both Dr. Knight and his family and Nelson and her family, the two of them should not work together. Dr. Knight handed Nelson an envelope which contained one month’sseverance pay. Nelson started crying and said she loved her job
The Court relied on various decisions, particularly a decision out of the Eighth Circuit that sexual tension or jealously could be a basis for termination:
Several cases, including a decision of the United States Court of Appeals for the Eighth Circuit, have found that an employer does not engage in unlawful gender discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy. This is true even though the relationship and the resulting jealousy presumably would not have existed if the employee had been male.Tenge v. Phillips Modern Ag Co., like the present case, centered on a personal relationship between the owner of a small business and a valued employee of the business that was seen by the owner’s wife as a threat to their marriage. 446 F.3d 903, 905–06 (8th Cir. 2006). In that case, unlike here, the plaintiff had pinched the owner’s rear. Id. at 906. She admitted that the owner’s wife “could have suspected the two had an intimate relationship.” Id. Further, the plaintiff acknowledged she wrote“notes of a sexual or intimate nature” to the owner and put them in a location where others could see them. Id. In the end, the owner fired the plaintiff, stating that his wife was “making me choose between my best employee or her and the kids.” Id.Reviewing this series of events, the Eighth Circuit affirmed the summary judgment in favor of the defendants. Id. at 911. The Eighth Circuit first noted the considerable body of authority that “ ‘sexual favoritism,’ where one employee was treated more favorably than members of the opposite sex because of a consensual relationship with the boss,” does not violate Title VII. Id. at 908–909. The court distilled that law as follows: “[T]he principle that emerges from the above cases is that absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.” Id. at 909.
I find the basis for the decision disturbing. It is hard to see where the line between such “family values” and discrimination is drawn. It would seem an easy thing to just attribute the firing to sexual tensions. The Court noted such difficulties in a rather unpersuasive passage:
Nelson raises a legitimate concern about a slippery slope. 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 an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.
This could easily be read as a type of “one-free-bite rule” for sexual harassment or discrimination. On the other hand, we have discuss the tension in business that often hire for looks from television to bars (here and here and here). This is not such a business, however. Under this logic, a dentist could presumably refuse to hire any woman who was attractive to shield himself from temptation. What do you think? That’s an extraordinary move, which comes six months after the court received national attention for ruling that a male employer does not commit gender discrimination if he fires a female employee at the request of a jealous wife.
Notably, Nelson filed a petition for rehearing on January 3, 2013, but the justices did not ask for a response from Knight. Rather, on Monday the Chief Justice issued an order withdrawing the December opinion and stating that the court would resubmit the case, without oral argument, this Wednesday, June 26.
Cheese Head Law, I also have sex w/ sockpuppets. On one occasion I took a sockpuppet across state lines, violating the Mann Act. And, if you are an attorney, you’re assuming a fact not in evidence. I did not state the venue of the sheep sex. Oh, and sockpuppets are cowards and hurtful to honest discussions.
“Gene, At 11:52am you pissed on your leg. We’re all human and we all do it. People w/ balance are able to admit it, even laugh @ it, and move on.”
Nick,
This is where you let your anger overcome your intelligence. The topic of this particular thread, lest you’ve forgotten, is a Dentist who fired a woman because he found her sexually attractive and afraid he couldn’t control his own emotions. Gene’s statement about not sleeping with a woman he didn’t want to sleep with was basically saying the Dentist’s defense was self justifying nonsense, which I assume given your long marriage you know is true. I’m sure in your work you’ve come across many a sexually attractive woman and I’m certain you never acted upon that and remained true to your wife. Like you, I’ve never cheated on my wife either, nor have I ever let myself to become attracted to any woman I’ve encountered while married.
Yes. I prosecuted rape cases and know on a profound level we are all personally responsible for our actions. But you and your partner have inserted pontification that led this thread in an entirely different direction. Like saying strong sexual urges can just be flipped off like a light switch and providing personal anecdotes as evidence. I’m the guy who calls you on that horseshit. You’re the 2 who think I’m not worthy of even asking you questions. Something you admitted @ 11:55am. Gene’s narcissism and your pomposity have been shown quite clearly in this thread. Finally of course the Prince of pc would have a problem w/ the word “stud.”
Mr. Spinelli,
It’s probably wiser to not discuss any sheep you’ve had sex with. Bestiality is against the law in Wisconsin. On the other hand, from reading your posts, wisdom doesn’t seem to factor in to your decision making.
“It was all about you, as it always is.”
Nick,
Here you are using the defense mechanism of projection, where you accuse someone else of doing what you always do yourself. Calm down Buddy, this can be an interesting discussion without your anger carrying you away.
I’m as cool as the other side of the pillow. Although it was hot walking outside today. Are you able to exercise? I suggested we end this tortured discussion awhile back. Misquoted???
I’m still waiting for your definition of “success”vis a vis sex, if you care to share. You are an admittedly very open person in discussing sex. And, since you have placed yourself in w/ Gene, have you always consented to having sex w/ all the women you bedded, or have you ever been raped. And, having worked numerous rape and sexual harassment cases, and you being a man who also dealt in that realm in a different role, a sensitive man like you should acknowledge a man can never know for sure if the sex was consensual. Another point you have conspicuously avoided. You guys have been following a pattern of avoiding substance and just lashing out.
“My old man was a stud according to his friends. However, I NEVER heard him talk about it.”
That’s the macho male in you when you use the word “stud”. In that context it is an ugly word as I have explained above. As for not talking about it I haven’t once discussed the people I’ve been with sexually so their privacy is intact. I will admit to having sex with my wife though and I guess you will admit that too.
Getting back though to the subject of this thread. Could we agree that the attitude of the defendant that he lacked control over his sexuality seems preposterous?
“Define “success” please.”
In this context a highly pleasurable sex life that went beyond the physical realm into emotional intimacy. Added with it the fulfillment of all of my sexual fantasies and finally no regrets.
“Unless we’re mind readers, we can never know for sure the women w/ whom we had sex really wanted to. There are so many variables and to be so unequivocal fails to even acknowledge the woman and those emotions, the big one being, feeling guilty when they say “no.””
Nick,
Seriously. Do you really think I’m unaware of men who pressure women to have sex with them out of guilt tripping? Aren’t you confusing that with women who fake orgasm so as not to make their partner feel bad? One doesn’t have to be a mind reader to know these things when you’ve established the nature of the relationship. I was never what you call an “easy lay”, nor a sexual guilt tripper. Being shy, I always made sure there was interest.
Also since I don’t believe that it’s the male role to always initiate sex, I think I can be pretty certain as to what my partners wanted. Now it’s true that some women do fake orgasm because they enjoy the closeness of sex and worry about the man’s fragile ego. While I would always try very hard to have my partner achieve orgasm, I also believe that each of us is responsible for their own orgasms. To be honest about it, part of the trouble with many male’s sexuality is that they think their “prowess” defines them as men. They see having sex as an affirmation of their manhood, which is not at all true. They look at women as conquests, which I’ve always thought of as crazy. Studies have shown that many men only define sex as intercourse, which I find sad, given the broad range of options for sexual pleasure. Finally, the idea that the orgasm is the unit of achievement of sexual pleasure is a myth that has undone many. This is an area where I have some expertise beyond the experiential, since as a psychotherapist I’ve also taken specialized courses is Sex Therapy. If there’s anything more you’d like to know I’ll be happy to informs you.
AY, My old man was a stud according to his friends. However, I NEVER heard him talk about it. He was the consummate gentleman, Actually, so much so I think he married a woman he bopped in New Orleans. I had heard over the years about his woman, portrayed as a stalker, who came up to Ct. after WW2. Apparently, my old man had a relationship w/ her in New Orleans, where he was stationed during part of the war. Even my Aunt Julia, who knew EVERYTHING about the family knew, or said, little about this woman. The ironic thing about me is I am not nosey by nature. If you pay me, I’ll be quite nosey.
Fast forward to 1989, my old man dies of a stroke. I’m helping mom go through all of dad’s papers. I start reading his discharge papers from 1945 and it clearly says “Married” as his marital status. He and my mom married in 1950, when dad was 33, mom 24. When my mom saw me reading the discharge paper she quickly took it and OBVIOUSLY didn’t want to discuss it. Which I honored. But, obviously my old man did the horizontal bop w/ this southern belle and her old man said “get married” as he cleaned his 12 gauge. There must be a divorce somewhere, probably in NO. Otherwise my old man was a polygamist. I briefly thought of doing so research @ the courthouse when I was in NO but said, let it rest. It would have devastated my older sister. My younger sister would have been interested. My brother wouldn’t have given a shit.
So, by example I’ve never talked about the women[and sheep] w/ whom I’ve had sex. But, to each their own.
Thanks Gene…
Nate…. The one going to Africa…. Started out in school…
Nick,
A gentleman never tells… Now, where you find a gentleman is the question….
Actually, if that helps you accept the eventual consequences of your actions? Then keep telling yourself that, nick. Anger causes all kinds of cognitive distortions.
AY, I’m shocked! It wasn’t mine was it?
Gene, At 11:52am you pissed on your leg. We’re all human and we all do it. People w/ balance are able to admit it, even laugh @ it, and move on. Time to let this one go dude, for the sake of the thread and everyone here. Basta!
Maybe, AY, but that’s a matter for the court to decide as even if the retraction is voluntary and made before a court demands it, the damage may already be done.
And you may be right about mofos. I had a ’72 Mustang once that about every six months wouldn’t start because of a stuck mofo. Or that may have been a solenoid. I forget which.
Well nick… I guess I am one then…..
AY, mofo is m@therf@cker.
Oh… I thought it was part of a train that didn’t work correctly…. Or a car that won’t start…l mofo… It a chain derailer as well….
Ok… I get it …. If I say someone is a bastar6 and I don’t know if its true…. Would that be libel or slander….
But then if I write in the paper that it is not true that very same person I originally claimed was a bastar6 is in fact not a bastar6 are my basis coverd?