AirTalk for December 26, 2012

Too sexy for my office? Iowa woman fired for being ‘too attractive’

Vladimir Gusinsky's Political Television Program NTV

Oleg Nikishin/Getty Images

Can you be too attractive for the office? Iowa rules that employers can fire employees who they see as an "irresistible attraction."

An Iowa Supreme Court composed of only male judges ruled unanimously that a dentist who fired his employee because he and his wife viewed her as a threat to their marriage was acting within the law.

The court determined that employers could fire someone they consider to be an “irresistible attraction,” regardless of the nature of their relationship with the employee.

Dentist James Knight fired Melissa Nelson after his wife became wary about text messages between the two. Nelson, who is married and has children, says that she had no interest in a sexual or romantic relationship with her boss, who she saw as a father figure, and claims that her messages were friendly. Knight still saw her attractiveness as a threat, and fired her after consulting with his wife and pastor.

In his defense, Knight’s lawyers claimed that the termination was not an act of gender discrimination – Knight did not fire Nelson because she was a woman, but because she was an irresistible attraction.

Although the court ruled in his favor, many critics have jumped to Nelson’s defense, saying that the all-male court failed to recognize the gender discrimination women face in the workplace. They argue that the judges have sent the message that men can’t be held responsible for controlling their desires, and that responsibility for monitoring attraction falls on female employees.

Although the law would presumably protect a female boss who fired a male employee, or a boss attracted to an employee of the same-sex, if the gender imbalance in sexual harassment reports is any indicator, those circumstances would be far less likely.

While hiring and firing power lies with employers, especially in small business without a formal HR presence, the lines between preference and discrimination are frequently blurry.

According to employment law specialist Nancy Bornn, similar legislation may not go over so well in other states. In California, where she practices, there are currently no similar laws protecting employers who want to fire those they find themselves attracted to. Bornn doubts that laws making such action legal would pass anytime soon.

Bornn also speculates that the Iowa decision could be backlash from more liberal moves made by Iowa courts in recent years. She cites the fact that four newly appointed judges sat on the panel that determined Knight to be within his rights – the Governor who put them on the bench is a Republican, Terry Branstad. Since Iowa’s landmark decision in 2009 to legalize same-sex marriage, there has been widespread disapproval in the popular vote of judges who took part in allowing the measure to pass. The result? A more conservative Iowan court.

Defenders of Knight’s decision claim that he was within his rights, legally and morally, to terminate Nelson’s employment. Subjective hiring and firing should be allowed in a small business, and if Knight found Nelson to be a distraction he felt could turn into a threat to his personal life, shouldn’t he be allowed to fire her? Bornn says no.

“Whether she’s attractive or she’s not attractive, this is a man who’s out there saying ‘I can’t control my emotions, therefore I should have the right to fire somebody who might be a potential threat to me,’” said Bornn, adding that the argument for family values, while politically compelling, is not an excuse for what she claims is clearly a gender issue.

So, should culpability for unreciprocated workplace attraction rest on the employer, on the employee, or both? What should bosses who find themselves distracted by an attractive employee do to control their feelings?

Under Title VII of the Civil Rights Act of 1964, private businesses are not allowed to discriminate based on sex, race, sexual orientation, age, or other distinguishing factors. Title VII restrictions vary by state and the size of a business – Bornn notes that in California, businesses with even one employee must uphold Title VII.

She says that this, along with the fact that the mental state of the perpetrators is irrelevant in sexual harassment cases, would make a case like this an unlikely victory in more liberal states where judges and voters are more likely to draw distinctions between sexual harassment and gender discrimination.

Could Knight’s decision to fire Nelson for being too attractive be considered sexual harassment? Should employers be able to fire anyone they deem “irresistible,” even if the person being fired has shown absolutely no interest in pursuing a relationship? Even if the decision to terminate employment based on attraction is legal, is it morally out of bounds? Have you ever been fired for no reason, or a bad one?

Guest:

Nancy Bornn, employment law attorney with a practice in Marina Del Rey




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