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Too sexy for the job?

Is it OK to fire an employee considered too sexy? In a recent case decided by the Iowa Supreme Court, the judges held that such an action is acceptable under the law.

But don’t start jumping to conclusions about potential repercussions of this decision. The case has already been widely ridiculed as a misapplication of commonly accepted workplace law – an oddity most likely having much more to do with the fact that this took place in Iowa than any rational interpretation of the law.

The facts of the case start innocently enough. In 1999, Dr. James Knight hired Melissa Nelson as a dental assistant to work in his office in Fort Dodge, Iowa. Over the next 10 years, they enjoyed a good working relationship – Nelson was a good dental assistant, and Knight became her “father figure” and a mentor. She said that Knight always treated her with respect. Both were married and had children, and things seemed to be going great.

However, Knight eventually became attracted to Nelson. They began texting each other outside of work about innocuous matters – their kids’ activities and other similar banter. Nelson said that she never led Knight on: She never flirted with him or sought out any sort of romantic relationship.

To his credit, Knight did take a few reasonable steps in an attempt to quash his feelings toward her. Starting in about 2008, he informed Nelson that her clothing was too tight and distracting to him and asked her to wear more professional attire. On several occasions he even asked her to put on a lab coat over her clothes. Although she denied that she ever wore tight or inappropriate clothing (saying she almost always wore medical scrubs to work), she indulged the doctor and covered up.

Knight wasn’t completely innocent, however, as his statements and texts to Nelson became increasingly flirtatious and of a sexual nature.

In late 2009, Knight’s wife learned that he was texting with Nelson outside of work and confronted him. She said that Nelson’s presence at the office presented a threat to their marriage and demanded that she be terminated. In order to preserve his home life, Knight agreed.

Out of the blue, in January 2010, Knight called Nelson into a meeting – with his pastor present as a witness – and fired her. He read from a prepared statement and told her their relationship had become a detriment to his family and that it was in his best interests to let her go. He later claimed that he feared that he would have tried to initiate an affair with Nelson down the road if he hadn’t taken this step.

Nelson sued Knight for gender discrimination, but her claim was dismissed by the court. In late December 2012 the Iowa Supreme Court (comprising seven men and no women, by the way) rejected her appeal.

The court said that there was no evidence that Knight fired Nelson because she was a woman, noting in fact that he had hired another woman to replace her (probably one he found decidedly less attractive). They concluded that Nelson presented an “irresistible attraction” to Knight, and while it may not have been fair to fire her, there was nothing discriminatory about the termination.

My advice to employers is simply to not attempt this maneuver. It reminds me of the “creative” approaches that some companies took soon after the law was amended to include pregnancy discrimination as a cause of action. Their arguments would be: “We didn’t fire her because she was a woman; we fired her because she was pregnant. We would’ve fired anyone who got pregnant – it just so happens that only women become pregnant. That’s not our fault.” Courts were quick to reject this imaginative theory, recognizing that it was a veiled act of gender discrimination.

The same holds true here. The Iowa Supreme Court agreed with Knight that he didn’t fire Nelson because she was a woman, but because she presented herself as a threat to the Knight family marriage. However, the reality of the situation is that only a woman could have presented a threat to the marriage, and therefore Nelson was seemingly being unfairly punished for being a woman.

My advice is that employers enforce their sexual harassment policies and that individual managers take personal responsibility to resist their own temptations at the workplace rather than scapegoat a co-worker simply because he thinks she’s too sexy for the office.

Rich Meneghello, managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or rmeneghello@laborlawyers.com, or follow him on Twitter – @pdxlaborlawyer.

About Rich Meneghello