Pick a legal fight you can win

An Iowa Supreme Court ruling announced last week made news around the country. The seven justices unanimously rejected a gender discrimination claim from a plaintiff whose boss had obviously treated her unfairly.

Many newspapers and blogs picked up this December 21 Associated Press report on the Iowa Supreme Court's ruling. The plaintiff, Melissa Nelson, had worked for Fort Dodge dentist James Knight for more than ten years. He fired Nelson after his wife became jealous of his attraction to her, and a pastor recommended terminating the employment to save Knight's marriage.

Nelson sued, charging that she had been discriminated against because of her gender. A man in her position would not have been fired. Webster County District Court Judge Thomas Bice dismissed the case, so Nelson appealed.

The full text of the Iowa Supreme Court's decision is here (16-page pdf). The justices affirmed the lower court ruling. Writing for the unanimous court, Justice Edward Mansfield concluded that "the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act." The facts of the case, discussed on pages 2-5, make clear that Nelson got a raw deal from her boss:

Dr. Knight admits that Nelson was a good dental assistant. Nelson in turn acknowledges that Dr. Knight generally treated her with respect, and she believed him to be a person of high integrity.

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 seeher wearing things that accentuate her body." Nelson denies that her clothing was tight or in any way inappropriate.2

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.

In late 2009, Dr. Knight took his children to Colorado for Christmas vacation. Dr. Knight's wife Jeanne, who was also an employee in the dental practice, stayed home. Jeanne Knight found out that her husband and Nelson were texting each other during that time. When Dr. Knight returned home, Jeanne Knight confronted her husband and demanded that he terminate Nelson's employment. Both of them consulted with the senior pastor of their church, who agreed with the decision.

Jeanne Knight insisted that her husband terminate Nelson because "she was a big threat to our marriage." According to her affidavit and her deposition testimony, she had several complaints about Nelson. These included Nelson's texting with Dr. Knight, Nelson's clothing, Nelson's alleged flirting with Dr. Knight, Nelson's alleged coldness at work toward her (Ms. Knight), and Nelson's ongoing criticism of another dental assistant. She added that "[Nelson] liked to hang around after work when it would be just her and [Dr. Knight] there. I thought it was strange that after being at work all day and away from her kids and husband that she would not be anxious to get home like the other [women] in the office."

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.

Nelson's husband Steve phoned Dr. Knight after getting the news of his wife's firing. Dr. Knight initially refused to talk to Steve Nelson, but later called back and invited him to meet at the office later that same evening. Once again, the pastor was present. In the meeting, Dr. Knight told Steve Nelson that Melissa Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve Nelson that 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.

Dr. Knight replaced Nelson with another female. Historically, all of his dental assistants have been women.

What woman could read that story and not feel angry on behalf of Nelson? Ten years of doing a job well counts for nothing if your boss feels attracted to you and has a jealous wife.

Mansfield analyzed the legal arguments on pages 6 through 15 of the decision. In cases from other states and various federal courts, including the Eighth Circuit and Eleventh Circuit U.S. Courts of Appeals, judges have concluded that firing someone over sexual jealousy or to remove a threat to a marriage does not constitute gender discrimination.

Section 216.6(1)(a) of the Iowa Code makes it generally unlawful to discharge or otherwise discriminate against an employee because of the employee's sex. [...] Generally, an employer engages in unlawful sex discrimination when the employer takes adverse employment action against an employee and sex is a motivating factor in the employer's decision. [...]

Nelson advances a straightforward "but for" argument: I would not have been terminated "but for" my gender. [...]Dr. Knight responds that Nelson was terminated not because of her sex-after all, he only employs women- but because of the nature of their relationship and the perceived threat to Dr. Knight's marriage. Yet Nelson rejoins that neither the relationship nor the alleged threat would have existed if she had not been a woman.

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. [...]

Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee's protected status. [...]

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson's view of the facts, Dr. Knight's unfair decision to terminate Nelson (while paying her a rather ungenerous one month's severance) does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson. [...]

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. [...]

As we have indicated above, the issue before us is not whether a jury could find that Dr. Knight treated Nelson badly. We are asked to decide only if a genuine fact issue exists as to whether Dr. Knight engaged in unlawful gender discrimination when he fired Nelson at the request of his wife.

When this story hit the blogosphere late last week, several commentators reacted with outrage or disbelief. Scott Lemieux of the Lawyers, Guns & Money blog decried the "gruesomely sexist logic" on display: "If A Fifty Year-Old Man Can't Control His Hormones, A Woman Must Lose Her Job." Talking Points Memo's Josh Marshall viewed the case as an example of the satirical publication "The Onion" "invading real life." At Mother Jones, Asawin Suedsaeng criticized the court for the message it sent to women and girls everywhere: if you're an "accomplished, intelligent, diligent, and thoughtful female professional who's done absolutely nothing wrong," you can lose your job anyway.

I am not an attorney, but it seems to me that Nelson got bad legal advice. I would think that Knight's comments about tight clothing and his "bulges" would give Nelson a slam-dunk case for sexual harassment. I mean, her boss texted her to ask how often she had orgasms. That is so inappropriate. Her only mistake was giving him the benefit of the doubt (as a father figure) and not recognizing his harassing behavior for what it was. She may have perceived his comments as harmless, if she did not feel attracted to him. I'm sure she had no idea she could be fired for the perceived threat to Knight's marriage.

Speaking to the Associated Press, Nelson's attorney Paige Fiedler warned,

"These judges sent a message to Iowa women that they don't think men can be held responsible for their sexual desires and that Iowa women are the ones who have to monitor and control their bosses' sexual desires [...] If they get out of hand, then the women can be legally fired for it."

Various federal and state courts have already sent that message to women. Fiedler's job was to represent her client well, which means filing a case on grounds that can be won--not on grounds that many other courts have rejected. The defendant's own attorney admitted that the plaintiff did nothing wrong but insisted that his client was not acting out of gender discrimination.

Knight's attorney, Stuart Cochrane, said the court got it right. The decision clarified that bosses can make decisions showing favoritism to a family member without committing discrimination; in this case, by allowing Knight to honor his wife's wishes to fire Nelson, he said.

Knight is a very religious and moral individual, and he sincerely believed that firing Nelson would be best for all parties, he said.

"While there was really no fault on the part of Mrs. Nelson, it was just as clear the decision to terminate her was not related to the fact that she was a woman," he said. "The motives behind Dr. Knight terminating Mrs. Nelson were quite clear: He did so to preserve his marriage.

"I don't view this as a decision that was either pro-women or opposed to women rights at all. In my view, this was a decision that followed the appropriate case law."

A Talking Points Memo reader commented,

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.

Fiedler should have been aware of this case law and filed a different claim on behalf of her wronged client.

Any relevant comments are welcome in this thread.

P.S. - I would encourage Bleeding Heartland readers in the Fort Dodge area to take their dental business to a less "religious and moral individual."

UPDATE: Rekha Basu's latest column for the Des Moines Register bashes the Iowa Supreme Court's ruling and quotes Fiedler as follows:

That behavior by a boss has all the hallmarks of sexual harassment, but Nelson didn't sue him for that, knowing how hard it is to win a sexual harassment lawsuit for anything short of outright sexual assault on the job, Fiedler says. Nelson said she had no sexual interest in the man she considered to be a "dork," but she also didn't fear he would assault her. So she ignored the lurid text messages and told no one.

It's shocking to me that these facts are not considered strong enough for a sexual harassment claim.

More from Basu's column:

Attorneys may also be reluctant to take up cases like this after Fiedler spent two years foregoing $80,000 in legal fees she would have collected if they had won.

As unnecessary as this should be, maybe the Legislature needs to specify in the law on sex discrimination that a boss cannot fire a woman because he is attracted to her.

I would support that change in the law, although I can't imagine state legislators would go along.

Nelson told Basu that she gave up hope of working as a dental assistant: "She can't bring herself to look for another job in the field, knowing the close proximity in which a dentist and assistant have to work." That is tragic. I sincerely hope that the publicity surrounding this case causes Knight's clientele to go elsewhere. A woman should open up a dental practice in Fort Dodge and hire Nelson.

  • Denny Crane!

    Oh my, this so sounds like a case ripped from the files of Crane, Poole, and Schmidt LLC.

    A middle-aged, possibly stuffy employer, a modestly-presented not-unattractive employee, a wife who seems to have sensed some reason to become jealous, the employer's minister, and a collection of double-entendre emails is the stuff of TV lawyers Alan Shore and Denny Crane.

    • haven't watched that show

      but Law and Order sometimes shows judges having to rule in favor of a sleazebag because of technicalities or precedent.

  • An excellent synopsis and comment

    Thank you for this well-written and rather nicely balanced synopsis and commentary. You acknowledge the outrageous awfulness of the dentist's behavior and the lack of wrongdoing by the assistant, while pointing out that the ISC did not approve of what the dentist did but had to rule on the narrow, specific basis on which the suit was filed.

    A relatively few people seem to be able to do this. For example, I have been in the comments section over at feministe ( http://www.feministe.us/blog/ ) (under a different name than this) trying to talk about the nuances, but most of the readers, both women and men, just aren't having it. Some of them are raging about how the justices ought to be thrown out at the next retention vote over this one decision, unaware of or not appreciating the irony of misogynistic homophobes having already done that to three of them, including the only woman justice!

    Some, though, have ventured that this sounds like it would have been a much better sexual harassment case than it was a sex discrimination one. I agree and think that why it wasn't is one of the most interesting unanswered questions. We don't have enough information, so it's just speculation. I would guess at the least that it might be because Nelson was rather naive and inexperienced with situations like this and she made the mistake, as you said, of giving him the benefit of the doubt.

    I've been on this site before, BTW, but just decided to sign up and I think I will make it a regular stop to keep up on Iowa news.

    • I've been reading lots of commentaries

      Just today Iowa State University Professor Warren Blumenfeld wrote,

      Well, I thought I had heard of most of the attempted and manifest means of patriarchal control and domination over women's bodies and minds, until news hit of a court ruling in my home state of Iowa. [...]

      To paraphrase the Bard, discrimination by any other name would still stink. Fundamentally, the Iowa Supreme Court is placing responsibility on women for the libidinous drives of their male employers. This blatantly falls under the category of "blaming the victim," just as accusing a woman for a man raping her because she was dressed attractively.

      Writing in the Kansas City Star, Mary Sanchez asserted,

      Just when women think that equality between the sexes is nigh, along comes something outlandish to snap us into place.

      The latest reminder was delivered by the Iowa Supreme Court. In a 7-0 decision, it ruled that a dentist could fire his assistant merely because he found her presence in the office to be too titillating - an "irresistible attraction" are the words chosen by Justice Edward Mansfield in his opinion.

      That's right, ladies. If the boss finds you too hot, you can be fired. This is not a joke, although portions of the December decision read like the satirical news site The Onion. Male immaturity just got a big thumb's up from the all-male Iowa Supreme Court.

      The common thread in these pieces is that they do not acknowledge the relevant case law, implying that Mansfield dreamed up this legal reasoning and had no problem with what Knight did or said.

      I have heard that Paige Fiedler is an outstanding plaintiff's attorney. She may have had reasons for going this route. I'm no expert in employment law, but it may be that Nelson's failure to complain in a timely manner about the suggestive comments and text messages would have undermined a sexual harassment claim.  

      • Paige Fiedler

        She IS an outstanding attorney, which makes me think there must be a good reason why she did not pursue a harassment case against the good doctor.  I wonder if the cheapskate had written a bigger severance check whether this all would've gone away and nobody would have ever known.  It is all about the benjamins.

      • you should take into consideration

        The common thread in these pieces is that they do not acknowledge the relevant case law

        that if justice is not perceived as blind, then the "relevant case law" will obviously not be acknowledged. Relevant case law may be viewed as entrenchment of the status quo that far too many are comfortable with.  

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