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All the women in Iowa, flee now.  Quit your jobs and move to Cleveland, Ohio to avoid sexual discrimination, harassment and pig bosses.  That is what most commentators are saying in response t0o Nelson v. James H. Knight DDS, P.C.,  where the Iowa Supreme Court, comprised of all men, held that a dentist could legally fire an employee because he found her to be “irresistible.”   Melissa Nelson worked for dentist Knight ten and a half years.  According to the Supreme Court opinion, “Dr. Knight admits that Nelson was a good dental assistant. … 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.” While the Defendants had some complaints about Nelson, any employment attorney told just the above would have bet you 100 to 1 that this would be resolved by the jury as a question of fact.

But, based on how the case got to the Supreme Court, it can make sense.  The biggest problem was that “Nelson’s one-count petition alleges that Dr. Knight discriminated against her on the basis of sex. Nelson does not contend that her employer committed sexual harassment.”  So everyone who read the above and thought, “geez, that must be sexual harassment,” take a step back and understand that for some inexplicable reason, Nelson’s attorney did not make a claim for sexual harassment.  Therefore, the only issue was whether Nelson was discriminated based on her gender.

The second big problem is that Nelson did not get out in front of this issue.  Women that feel that they are being sexually harassed should immediately Call The Right Attorney.tm If Nelson had done that, she would have know to immediately complain about the sexual harassment in writing, which would have protected herself from retaliation.

So, turning to just the gender discrimination claim, Nelson’s biggest legal hurdle was that “Dr. Knight replaced Nelson with another female. Historically, all of his dental assistants have been women.”

The Supreme Court then cited a slew of employment law for the proposition “that terminating an employee based on the employee’s consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment.”  Again, we come back to the problem that Nelson did not assert a claim for sexual harassment or a hostile work environment.

Nelson argued that she “did not do anything to get herself fired except exist as a female.”  The Supreme Court held:

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction. Notwithstanding the Eighth Circuit’s care to leave that question unanswered, it seems odd at first glance to have the question of whether the employer engaged in unlawful discrimination turn on the employee’s conduct, assuming that such conduct (whatever it is) would not typically be a firing offense. Usually our legal focus is on the employer’s motivation, not on whether the discharge in a broader sense is fair because the employee did something to “deserve it.” 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.

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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.

This would have been a very different outcome if Nelson complained of sexual harassment or even if she had told the good dentist to that she was not interested.  Nelson’s attorney mistakenly made this case about what is morally right and wrong.  But, she should have made this case about what was unlawful, which is a big difference.

Lastly, as an employment discrimination attorney, I’m very curious as to what the settlement discussions were leading up to the trial court’s grant of summary judgment.  Settlement negations were probably also less fruitful because the sexual harassment, hostile work environment, and quid pro quo harassment claims were not made.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 271-3742. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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