Remember the case of the Iowa Supreme Court upholding the firing of a dental assistant because she was too attractive for her boss to resist? 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. After a national outcry, the Court surprised many by suddenly vacating its earlier decision and taking back the case. Many hoped the court would discard its prior opinion. Think again. The Court has issued a new opinion with the same conclusion and ramping up its prior holding.

In her lawsuit, Nelson claimed gender discrimination rather than sexual harassment.

The prior opinion offered 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.

Notably, Nelson filed a petition for rehearing on January 3, 2013, but the justices did not ask for a response from Knight. Rather, 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.

However, the Court reconsidered and again found its logic . . . well . . . irresistible. They ruled for the dentist in firing a woman because she was too attractive. However, the court stressed that she was not fired because of her status as a woman, but only that her boss, Dr. James Knight, was concerned that he could not resist the temptation and his wife was jealous. So, Nelson, 33, was fired after working for him for 10 years. I suppose she could reapply if she would do the right thing in Iowa and gain some weight. The Court noted:

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

It does not seem to matter that there is no record of an affair and the worst evidence appears to be that Nelson stayed after hours at the office — something more employers relish in an employee:

5As we have noted above, Jeanne Knight said that she thought it was “strange that after being at work all day and away from her kids and husband that [Nelson] would not be anxious to get home like the other [women] in the office.” Viewed in isolation, this statement could be an example of a gender-based stereotype. However, as with Jeanne Knight’s other comments regarding Nelson, this statement was linked to a specific concern about Nelson’s relationship with her husband. This statement immediately followed Jeanne Knight’s claim that Nelson “liked to hang around after work when it would be just her and [Dr. Knight] there.” Viewing the summary judgment record, we come to the same conclusion as the district court: There is no genuine issue of material fact that the reason for Nelson’s firing was Jeanne Knight’s demand that she be fired, which was based in turn upon Jeanne Knight’s perception that the relationship between Dr. Knight and Nelson was a threat to the marriage.

The logic of the Court continues to escape me. When again confronted with the slippery slope problem of allowing Dr. Knight to hire multiple women until Mrs. Knight felt comfortable, the Court said that “of course, a pretext does not prevail in a discrimination case” and it might take a different view if the number of terminations grew too high. . . . . If an employer repeatedly took adverse employment actions against persons of a particular gender, that

Nelson clearly felt a friendship with Knight, who admitted to sexually related comments like warning her that if she saw his pants bulging it meant her clothing was too revealing. When Nelson once commented to him that she and her husband had sex infrequently, Dr. Knight allegedly replied that seemed like “having a Lamborghini in the garage and never driving it.”

Three judges appear to believe that they reached a more reasoned concurrence by stressing that Nelson knew her relationship with the boss was a more significant one than enjoyed by the other employees. While not sexual it was “special” and that was enough for the Iowa Supreme Court.

Here is the opinion: 11-1857