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Shorter Iowa Supreme Court: If A Fifty Year-Old Man Can’t Control His Hormones, A Woman Must Lose Her Job

[ 88 ] December 22, 2012 |

This is the set of facts that the Iowa Supreme Court did not see as constituting sex discrimination:

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.

[...]

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’s family 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’s severance pay. Nelson started crying and said she loved her job.

You will probably also recall this gruesomely sexist logic from arguments about why women should not be permitted to serve in the military and other male-dominated industries. “Clearly, adult heterosexual men cannot possibly be expected to accept that they will not be able to have sex with every woman they find attractive. The solution is to deny women equal economic opportunities.” The idea that firing a woman, after sexually harassing her, because you want to have sex with her isn’t gender discrimination is the same kind of sterile illogic that holds that discriminating against pregnant women isn’t gender discrimination, because the law in its majestic equality allows employers to fire men and women alike for being pregnant. (It probably goes without saying that Robert Bork, the greatest jurist and political thinker of the 20th century, found the latter argument perfectly credible.)

Comments (88)

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  1. Ed Marshall says:

    So what would your recourse be if your boss was the same sex as you, homosexual, and fired you because they had the hots for you?

    It seems ridiculous for that to be legal, but it wouldn’t be gender discrimination.

    • Jameson Quinn says:

      The situation in which that is legal, is a situation which is on the whole more unfair to women. Moreover, the fact is that bosses like that generally don’t fire people for that reason, and female bosses don’t fire male employees for that reason, because society wouldn’t stand for it and they know it. IANAL, but I would think that you could do research to back up both of those arguments, and that such research should be enough to prove in a court of law that this case constitutes discrimination.

    • Sly says:

      The extent that this constitutes sex discrimination begins with the notion that male bosses/superiors being required to keep their urges in check is an unfathomable breach of a primordial order when it comes to gender, and ends with the notion that female employees should simply “put up with” unwanted sexual advances from their male employers and/or superiors simply because they are female. Combined, those two principles form the crux of the matter.

      So, no, a person being fired for rejecting the sexual advances of a same-sex employer or superior would not constitute sex discrimination, but only because there is not a widely held belief that the subordinate should simply grin and bear it when faced with those particular unwanted advances in the first place.

      • John says:

        The thing is that here, Nelson did passively put up with Knight’s flirtations without really encouraging them, and that’s basically why she was fired. A complete no win situation.

    • Joseph Slater says:

      Ed: Yes it would be. The Supreme Court has held that same-sex sexual harassment violates Title VII, see the Oncale case. The theory is that it is gender discrimination because you are picking on a particular person because of his gender. Just like a black person can racially discriminate against another black person, or a white person against another white person.

    • cpinva says:

      no, it wouldn’t, obviously:

      It seems ridiculous for that to be legal, but it wouldn’t be gender discrimination.

      it would, however, still be sexual harrasment, which is gender neutral. that is not legal either.

  2. Tnap01 says:

    Come on Doc, all you need is a computer with Internets connectivity, a sock you don’t mind messin’ up and this:

    https://www.youtube.com/watch?v=tt_YcQlYxyY

    Should fix ya up for the rest of the day.

    • Spokane Moderate says:

      You’re going to he’ll for that.

    • cpinva says:

      she’s about as physically coordinated as she is intellectually so. which is to say, not very much. i’m guessing she’s still pissed, because she didn’t make the cheerleader squad in high school, and all those mean girls who mocked her did.

  3. DrDick says:

    And the stupid goes on forever.

  4. Joe says:

    blaming the victim (fired worker), sounds like

  5. TT says:

    This opinion springs from the same risible extended family of logic that believes a woman is to blame for getting raped if she dressed “provocatively”.

  6. tewhalen says:

    Note that although the set of facts elaborated above may constitute sexual harassment, the plaintiff in this case didn’t allege sexual harassment, and no court or jury heard any evidence as to whether sexual harassment occurred. If you’ll read the opinion, the case was decided on summary judgement, so the facts are presented in the opinion in the light most favorable to the plaintiff.

    • Richard says:

      Making a harassment complaint would have been difficult because she worked there for years, never complained, never suffered any consequence as a result of the harassment and stated she loved her job. That’s undoubtedly why her counsel chose to bring a wrongful termination claim based on gender discrimination rather than harassment

      • Sherm says:

        Correct. And I’m pretty certain that the result would have been quite different here in New York.

      • Sherm says:

        I stand corrected. Not familiar with the most recent caselaw, but there appears to be a “rational jealousy” defense in New York as well with the rationale being that the husband/employer is presented with a “hobson’s choice” How does that change the fact that the employee has been terminated on account of her sex? It’s not discrimination bc the boss has no problems with having women he doesn’t want to fuck in his employ?

  7. c u n d gulag says:

    Uhm…
    It took 10 years for this guy to find his female employee irresistable?

    10 years!

    A bit slow on the up-take, ain’t he?

    Or, what happened, he get a new eye-glass prescription?

    His wife got a doctor to prescribe some ‘quicker-pecker-uppers’ for him, and all of a sudden, his pecker-being-uppered, he found that his assistant became the object of his desire, instead of his wife?

    Did the assistant brush her back up against some white paint, and all of a sudden, DDS Pepe Le Pew noticed her, and fell madly and passionately in love?

    How does this take 10 years?

    If course, it’s still wrong if it took 10 seconds.
    But, 10 years?
    He should have been laughed out of court for that alone!

  8. Seems like he was caught sexting and was trying to CYA

  9. Law Spider says:

    Assuming the employer isn’t mature enough to control his attraction, which, let’s be frank, is less controllable than whether he acts on the attraction. If the employer is determined to get rid of her: Either he fires her for the honest reason, in which case she likely has relatively little trouble getting another job with a non-creep, or he lies about her (in)competence, in which case she has a bigger problem. (There are a lot of little ways to increase job expectations to make them effectively impossible to fulfill, if an employer wants to do that, especially in a small office.) I’d actually prefer the former.

    • mpowell says:

      Yeah, he should have just negotiated a satisfactory severance and then sent her on her way. Nothing wrong with that.

      The problem here was thinking one month’s severance is appropriate when the employee is not at fault for the situation.

      • Law Spider says:

        Right. Frankly, if he (or his attorney) had been smarter, he would have offered her 4 or 6 months salary, and this problem would never have gotten to this point.

        People can be appalled all they want, but there is a reason that mothers don’t hire Kate Moss look-alikes as nannies. Don’t create unnecessary temptations.

        • Sherm says:

          Several months severance in consideration for a general release would be SOP under these circumstances. But it appears that he consulted with his pastor rather than an attorney.

          • jeer9 says:

            Three months severance probably would have averted the litigation, though given the creepy way the guy acted throughout her term of service it seems doubtful that the blame for his stinginess should be laid at the church’s door.

            I can see the pastor agreeing with the wife to terminate Nelson in order to save the marriage but the parsimony seems all Knight’s own, a misdiagnosed and poorly fitted crown placed upon a problem which was at its core a deeply decayed root. All the talk about types of filling should have been carefully documented so that malpractice might have been more easily proved.

            • Hogan says:

              a misdiagnosed and poorly fitted crown placed upon a problem which was at its core a deeply decayed root.

              I see what you did there.

            • mpowell says:

              I think the problem really is just that it probably never occurred to the doctor that there could be legal blowback for firing someone like this. That’s another indication of his privilege blinding him.

          • Lindsay Beyerstein says:

            A decent severance package would have been a lot cheaper and less painful than going to court and exposing himself (pun intended) as a weak-willed creep who can’t control himself at work or stand up for himself at home.

            • jeer9 says:

              While no woman should have to tolerate such harassment from an employer, the question then becomes why wasn’t she letting him know he had crossed the line? The good-natured, friendly “father figure” response doesn’t really cut it.

              She loved her job/salary and was amused by? (put up with?) his vulgar flirtations because she thought they were harmless – until Dr. Bulging Pants told her in front of the pastor that she’d been expelled from paradise and that the daily temptation was no longer appreciated nor would her banishment be duly compensated.

              While he’s clearly in the wrong (both socially and employer/severance-wise), she seems to bear some responsibility for the adverse results of this particular litigation (which would have been more effective as an harassment suit than one of gender discrimination).

              Attractiveness is generally considered a benefit in the workplace, though apparently not in Iowa and not when a jealous wife has the patience of Job. The Iowa Supreme Court has spoken out of the whirlwind and their “wisdom” appears just as inscrutable.

              • Lindsay Beyerstein says:

                None of this was the woman’s fault. As a subordinate, it wasn’t her job to police her employer’s behavior. As a client, it wasn’t her job to dictate strategy to her lawyer.

                • Chuchundra says:

                  As an employee, it is absolutely your responsibility to inform the person you feel is acting inappropriately that their behavior is unwanted. Alternatively, you can inform HR or your supervisor, but in this situation she had to inform Knight that his comments were not appreciated.

              • Law Spider says:

                Given the evidence (the 10-year absence of complaints to the boss or apparently to others about the conduct), a harassment suit would have been an uphill battle.

                In any case, Lindsay is correct — in practice, the claim asserted is almost always the attorney’s decision.

                • Richard says:

                  Even if harassment could be proved, her own testimony is that she suffered no damages from the harassment and loved her job. It’s a lousy harassment case. That’s why it was filed as wrongful termination because of gender discrimination

        • Anonymous says:

          Women aren’t sweets, and this shit happens (shock, horror) to those who don’t look like fashion models. Most men, hetero or otherwise, should be perfectly capable of recognizing the difference but for a culture (and, now, legislation) that removes from them culpability when they make conscious decisions to harass one half of the population and then claim that their marriage has been compromised as a result.

        • Ed says:

          People can be appalled all they want, but there is a reason that mothers don’t hire Kate Moss look-alikes as nannies. Don’t create unnecessary temptations.

          Well, Jesper and Mia Parnevik hired Elin Nordegren. I would think the onus would be on the husband not to act like a hound, not on the wife to screen prospective nannies and au pairs for their looks lest the master of the house lose his moorings at the sight of a pretty foot.

          Not to mention that as noted by another poster, girls and women don’t have to be supermodels or anything close to attract such attentions.

          • Scott Lemieux says:

            I would think the onus would be on the husband not to act like a hound, not on the wife to screen prospective nannies and au pairs for their looks lest the master of the house lose his moorings at the sight of a pretty foot.

            Thank you.

          • Speak Truth says:

            ..and then there’s the practical way, the way of avoiding conflicts and no sane wife would hire Kate Moss and let her into her house.

            If you think women will not and do not practice ‘looks’ discrimination among their own gender, you don’t know women.

            And while Scott and others complain about men and their libidos, it’s the reason why we’re all here.

        • Marek says:

          I like how the judge who wrote the opinion called the one-month severance cheap.

        • Hogan says:

          So she looks more like Kate Moss now than she did ten years ago? You don’t think proximity itself could have been the main driver of his “attraction”?

  10. Mister Harvest says:

    The seven wise men seem to have, while shaking the heads sadly at the unfairness of life, have found a way to completely separate the notion that the dentist was attracted to his assistant from the fact that she was a woman. I am in awe of such Solomon-like judgement.

  11. James E Powell says:

    One month severance? Seriously?

  12. TBogg says:

    This is good news for John McCain Kathryn Jean Lopez.

    Sorry. Someone had to say it.

  13. cpinva says:

    “Ms. Nelson was fired not because of her gender but because she was threat to the marriage of Dr. Knight.”

    which would be because of, well, her gender. did these solomon-like jurists bang their heads, when they ran into themselves, in this circular fit of “logic”?

    “he didn’t fire you because of your gender, but only because your gender threatened his marriage. don’t you see the difference here?”

    um, no, no i don’t. would you care to re-phrase that, in the form a question that isn’t stupid on its face? thank you.

    • Sherm says:

      But not all women employees are a threat to his marriage, just the ones who get him hard. Thus, she was not fired for her gender. She was fired bc her boss got a rise out of her and his wife knew. That clearly had nothing to do with her gender, but merely her hotness. Can’t you see this clear legal distinction?

    • Hogan says:

      If anyone is a threat to his marriage, it’s him. (“Those texts are coming from inside the house!”) The court should have granted a summary divorce.

  14. efgoldman says:

    Unfortunately, per Josh at TPM, there is federal court precedent for the decision.

    Late Update: TPM Reader KM notes that ‘you’re so hot my spouse is threatened’ is something the federal courts have generally been okay with as a cause for termination, which is bizarre, but there you go …

    That decision may seem surprising, but as someone who represents plaintiff’s in sexual harassment cases, I can tell you that it is pretty consistent with federal decisions, including the New York-based federal appeals court. Firing an employee because your spouse is jealous (which seems to be what happened here if the AP report is right) has been consistently been held to be a non-discriminatory, lawful motivation. There’s little doubt that women get fired for this reason about a million times more often than men, but the courts don’t seem to factor that into the analysis. And, yes, that dentist is weird, but I’ve seen much worse in my practice.

    http://talkingpointsmemo.com/archives/2012/12/onion_invading_real_life.php?ref=fpblg

  15. Matt says:

    Clearly, based on Wayne LaPierre logic, the only solution is for female employees to get penises too.

    Wait, what? :)

  16. Linnaeus says:

    Another example of how coercive the workplace can be. It’s like a private state unto its own.

  17. Sherm says:

    This reminds me: What do you call a lawyer with an 80 IQ?

    Your Honor.

  18. e.a.foster says:

    it would appear the Taliban, American version, is alive & well in the Supreme court of I.

    My god American jurists are backward. For that matter so is the Dr. You don’t send messages like his to staff. period. it is not considered appropriate behaviour. He should be fired. The dr. also brought someone from outside the work enviornment to watch this humilation of the woman. Like what is with you Americans. Another reason people need Unions. Workers need to be protected from employers such as the dr.

    • spencer says:

      The dr. also brought someone from outside the work enviornment to watch this humilation of the woman. Like what is with you Americans.

      This was almost certainly done as a CYA move, and as a means of intimidation. It’s appalling, but there’s a lot about our society that’s appalling. Just like yours, I’m sure.

      • Chuchundra says:

        I suspect it was the wife who insisted on him having the Pastor there so that he’s stay on the approved script and not say something like, “My crazy wife insists I fire you”

    • David Nieporent says:

      Fired? It was his practice. Who do you think can fire the owner of a business?

    • Timb says:

      This is the same Supreme Court which ruled marriage discrimination illegal in Iowa, so, jesus, it’s not like some reactionary Indiana Supreme Court or sumpin’

  19. Jim Lynch says:

    Instead of taking her cue from the lovely ex of Tiger Woods and optioning to go the golf club route with this doofus, his wife will have instead managed to render his name a joke that will outlive him. You gotta respect that.

    • AcademicLurker says:

      But will that happen? One would hope so.

      This seems like a case where social shaming mechanisms should supplement legal technicalities.

      In a just world the man, the wife and the pastor would be the subject of ridicule and ruthless mockery every time they appear in public from now on. Maybe this case will give rise to a genre of “A man, his wife and a pastor walk into a…” jokes.

    • AcademicLurker says:

      I suppose for better specificity it should be “A dentist, his wife and a pastor walk into a…”

  20. Gary K says:

    It probably goes without saying

    Of course it goes without saying. To actually say it would constitute “borking.”

  21. David Kaib says:

    While this decision is nuts, it strikes me that discrimination law (especially as interpreted largely by men) will always be too wooden and narrow as long as it operates as an exception to at will employment. Replacing that with just cause employment is a necessary complement to anti-discrimation law (in addition to being a good thing on its own).

    • mpowell says:

      This is exactly right. There is really nothing wrong with a person getting let go in this kind of situation – as long as the person being let go is being adequately compensated.

      Discrimination law is designed to correct general social ills and brings down a heavy hammer on those engaging in it. This is what protected classes and such is all about. It’s a really big deal for the government to say that you have to work with someone you really don’t like or want to work with and while exercising that coercion makes sense to combat racism or a refusal to hire women generally, it does not make sense in this case.

      But most states are at-will employment and while it has it’s advantage, it also has some substantial disadvantages for vulnerable employees in situation like this.

  22. quickly says:

    I thought this was a good write up of the rational jealousy issue.

    http://writ.lp.findlaw.com/grossman/20020423.html

    • Sherm says:

      If there are no legal consequences for firing the female worker, how is it a Hobson’s choice? The intellectual dishonesty is astounding. These decisions seem to be based on an overly literal reading of the plain language of the controlling statutes, without any regard for the very purpose of the statutes.

  23. Stitch says:

    if she saw his pants bulging, she would know her clothing was too revealing.

    Now that’s a one-line classic!

  24. Bill Murray says:

    Who knew the song Sorry by Nerf herder could be a winning defense strategy

    http://www.youtube.com/watch?v=GMNaY2jJ3_Q

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