People often complain that California employment law is bizarre. My colleagues around the country call our judges “fruits and nuts.” To the contrary, however, while our legislature is farther left than most states’ legislatures and our juries are more profligate than most, our appellate courts are relatively centrist. The award for the most bizarre supreme court employment decision of 2012 goes to Iowa and its dismissal of dental hygienist Melissa Nelson’s sex discrimination claim against her boss, James Knight, DDS.
Too sexy for your lab coat
Nelson began working for Knight after getting her community college degree in 1999 at age 20. She never flirted with him or behaved inappropriately. She loved her job, and Knight called her “the best dental assistant he ever had.”
Knight was less appropriate, however. He told Nelson that if his pants bulged, she’d know her clothes were too revealing. He once texted her that her shirt was tight and that it was “a good thing [you] did not wear tight pants because then [I] would get it coming and going.” He asked how often she had orgasms, and upon learning she had sex infrequently, he responded, “[T]hat’s like having a Lamborghini and never driving it.”
In late 2009, Knight’s wife, Jeanne, discovered that he and Nelson were texting each other, called her “a big threat to our marriage,” and insisted that she be terminated. Knight fired Nelson because “their relationship had become a detriment to [his] family.” Nelson’s husband asked Knight to reconsider. Knight replied that she had done nothing inappropriate and there was nothing going on between them―but he “feared he would try to have an affair with her down the road if he did not fire her.”
Nelson sued Knight for sex discrimination. He denied the charge, arguing that she wasn’t fired because of her sex (indeed, he only hired women) but because she was a threat to his marriage.
The Heckler’s Veto
Officials used to prevent minority groups from assembling and speaking in public because they were a threat to public safety―not because members of the group would act unlawfully, but because others might react violently. That theory―called “The Heckler’s Veto”―has been roundly rejected under First Amendment jurisprudence. It was recognized as fundamentally wrong to limit and restrict legally protected conduct just because bigots might react violently and unlawfully. Unlawful reactions to lawful conduct shouldn’t be rewarded.
Of course, that’s exactly what the Iowa Supreme Court rewarded in this case. Knight couldn’t control his libido and reacted to his assistant like a 12-year-old boy glimpsing cleavage for the first time. Likely recognizing her husband’s lack of control―and rather than telling him to knock it off and grow up―his wife forced Nelson out. Nonetheless, the supreme court approved the termination expressly “because the employer’s wife, due to no fault of the employee, [was] concerned about the nature of the relationship between [Knight and Nelson].”
Public policy in the Hawkeye state
As my readers know, employment law is a creature of public policy, defining one of the basic relationships in society. We could have developed the policy that sexual tension is part of the human condition, people are necessarily slaves to their passions, and employees have to deal with it in the workplace. Under that policy, the law could have developed as the Iowa Supreme Court suggests―if things get too sexually tense between an employer and his employee, and the employer or his sexual partner feels threatened, the employee has to go. I guess the same may be true if your spouse feels threatened by gay, Jewish, or Latino employees as well. That may be the law on another planet, or in some alternate reality, but not in California, and not under federal law. Knowing that romantic feelings are hard to suppress, prevailing law (in every state I know of other than Iowa) nonetheless demands that people control their feelings in the workplace.
Nelson made only one mistake: She filed her claim with the Iowa Civil Rights Commission under state law rather than with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964. I don’t think any employee will make that mistake again, knowing that a note from your spouse overrides the law, fairness, and justice in Iowa.
Excerpted from California Employment Law Letter, and written by attorneys at the law firm of Freeland Cooper & Foreman LLP.The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California does not designate attorneys as board certified in labor law. Contact the attorneys at Freeland Cooper & Foreman LLP