Fired for Being Too Pretty

I have wanted to write about this case for a while now, but waited to see if it would be appealed any further after last summer’s Iowa Supreme Court ruling. Unfortunately, it has not.

On December 21, 2012, the Iowa Supreme Court unanimously upheld the district court’s decision that firing a female employee because she is too attractive does not violate the state’s Civil Rights Act. In that specific case, James Knight, a dentist, fired his dental assistant of ten years, Melissa Nelson, solely on the basis that he had become attracted to her and she had become a threat to his marriage, as he thought he may one day act on his impulses and be unfaithful to his wife (Nelson v. Knight, No. 11-1857).

The Court’s decision received worldwide attention, mainly in the form of criticism from women’s rights and anti-discrimination activists, as well as everyday newsreaders shocked that a woman could be fired for such a reason, even in the face of her boss’s testimony that she was a model employee and that he had made several inappropriate comments to her in the months leading up to her firing.

Following the backlash against the district court’s decision, in a rare move, the Supreme Court announced at the end of June 2013 that it would reconsider Nelson’s sex discrimination case, on the basis of the previously submitted briefs and testimonial evidence. It seemed that the Court had decided to reverse its judgment. But on July 12, 2013, the Supreme Court issued its revised judgment and affirmed its December 2012 judgment, this time with a lengthier discussion of precedent and the appropriate place of courts versus legislatures in the legal scheme of things.

The fallacy of the Court’s judgment (and maybe of the civil rights legislation in general) is that it undertook its analysis of sex discrimination with blinders on. Rather than integrating a consideration of the other dimensions of gender in its analysis, it held itself to the purely biological male-female construction of sex discrimination. While, it is true, Nelson may not have been fired, strictly speaking, because she is a woman (after all, a female superior could also fire a male employee for the same reason under the state’s laws), Nelson was nonetheless fired because of, inter alia, certain steretypes associated with attractive women in the workplace , or a socialized (and apparently accepted) ethic that women are to be blamed for attracting male attention (rather than, say, chastizing the male boss for making comments to Nelson about his bulging pants).

The Court’s appeal to precedent itself speaks to the aberration of seeing the issue of sex discrimination in a purely male-female biological dichotomy. In particular, all the cases cited by the (all male) bench involve instances in which a male boss dismisses a female employee in order to « save his marriage ». Despite the blatant obviousness that being fired for being too attractive clearly disproportionately affects women rather than men, the Court seemed unmoved by arguments that equality does not necessarily mean identical treatment of men and women but may also necessitate proactive steps to protect vulnerable minorities. The Court’s statement that « the civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status » misses the mark in that it will inevitably work to the detriment of women more than men, not only because men are more likely to be in higher level positions (still today) but because, as the cited case law shows, it is apparently men who have taken it upon themselves to fire female employees for being too pretty.

As the Court mentions, the Defendant had by the time of the appeal hired a new female employee to replace Nelson. Apparently the Court did not think it relevant to ask « How hot is she? ».

 

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Comments

  1. Part of the problem with the case may lie in the general problem with US employment law, which tends to give employers the right to fire employees at will, unless there is some specific statutory protection (such as the Civil Rights Act).

    My understanding of this case at the time was that the employer’s wife had given him an ultimatum to fire the assistant because he was distracted by her. That would not under Canadian law be sufficient grounds for termination, but as a practical matter in a small office, he might fire the employee anyway. In that case she would be wrongfully dismissed and entitled to appropriate compensation.

    Is a human rights claim the best way to deal with this awkward personal situation, even if one agrees that the employer’s action is motivated by sex/gender and that the situation is more likely to occur to the detriment of women?

    Would an appropriate remedy under human rights legislation be reinstatement, or just the damages that she should have got under ‘pure’ employment law, if that law had a general concept of wrongful dismissal?

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