Last Friday the Supreme Court of Iowa upheld a summary judgement decision by the Iowa District Court which found that a dentist who terminated his assistant for being too attractive had not engaged in gender discrimination.
The plaintiff was hired in 1999 when she was only 20 years old, and the defendant conceded she was an excellent employee. The relationship was generally without incident, with exception to a few occasions when the dentist commented that he was distracted by her tight fitting uniform. The defendant acknowledged he made inappropriate comments of a sexual nature towards the plaintiff, who was also married and had children.
But the termination of her employment was prompted by another party. The defendant's wife also worked in the same dental office, and she discovered that her husband would text message the plaintiff, especially when she was out of town on vacation. Most of the texts involved discussions about their respective children, although there were some unilateral messages of a sexual nature originating from the defendant. The defendant's wife insisted the plaintiff be terminated because “she was a big threat to our marriage.” The decision occurred after the couple consulted with a local pastor.
The defendant called the plaintiff into his office on January 4, 2010, where another pastor was present, and read to her a prepared statement indicating she was terminated because it was in the best interest of both their families. He offered her one month severance. He met with her husband later that evening, again with the pastor present, and indicated that nothing had happened but that he feared he was getting too attached to the plaintiff.
The plaintiff filed a civil rights complaint and then brought an action on August 12, 2010. She did not allege any sexual harassment, despite the sexual comments and texts. Instead, she claimed discrimination on the basis of sex because she believed she she would not have been fired if she was a male employee. The defendant responded that he only hired women and the plaintiff's position was replaced by a woman, and the basis for termination was actually the threat to his marriage.
The court noted that several cases have found that unlawful gender discrimination does not occur when a female employee is discharged because a consensual relationship created personal jealousy, even though this jealous would not likely to occur if the employee was a male. Similarly, sexual favoritism, where one employee is treated more favourably than other members of the opposite sex because of a consensual relationship with the employer is not necessarily a violation of Title VII because it is the sexual conduct and not the gender which explains the differential treatment. The court summarized these cases saying, "If sexual favoritism does not constitute gender discrimination, treating an employee unfavorably because of such a relationship does not violate the law either."
The District Court summary judgement drew heavily on Tenge v. Phillips Modern Ag Co., but the facts in that case differed considerably. In Tenge, the employer had actually pinched the plaintiff's rear, and the plaintiff had left notes of a sexual nature for her employer. In this case the plaintiff claimed she had not done anything that would actually justify the concerns of her employer's wife.
The court found difficulty in examining an employer's unlawful discrimination by evaluating the employee's conduct, namely the presence or absence of flirtatious behaviour which could give rise to legitimate concerns of an affair. Instead, the plaintiff advanced three arguments:
- any termination because of a boss’s physical interest in a subordinate amounts to sex discrimination
- without some kind of employee misconduct requirement, the employer's position becomes a way of enforcing stereotypes and permitting pretexts which would justify justify adverse employment actions
- if the employer would have been liable to the plaintiff for sexually harassment, he should not avoid liability out of fear that he was going to harass her
Although the court considered these arguments they ultimately rejected them, distinguishing between an isolated employment decision for personal reasons that may exist because of a person's gender, as opposed to a decision based on gender itself, as the former is based on personal feelings to a specific individual. Employment litigation under Title VII stemming from a consensual workplace relationship is not actionable absent sexual harassment.
If the employer repeatedly took adverse employment actions against women because of personal issues it may be possible to infer that gender and not the relationship was a motivating factor. An isolated decision to terminate an employee before a “hostile work environment” or “abusive atmosphere” is created does not in itself create that atmosphere. If the plaintiff could demonstrate that she was fired because she did not conform to a particular stereotype, the employer's actions may also be actionable. But an expansive definition of discrimination based on sex simply because the reasons for termination could not exist but for her gender could not be sustained.
The parties agreed that the termination was over a perception of her threat to the employer's marriage. Whether this perceived threat was a fair or realistic is not actionable under Title VII or the Iowa Civil Rights Act, which do not engage in general unfairness in the absence of discrimination.
The complete decision is available here.