Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.” It is July 2013. After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.
Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant. Lou is an overweight, balding, married father of three grown daughters. Lou offers Mary an associate producer position, reporting directly to him. Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace. Edie demands that Mary be fired immediately. Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional. Lou fires Mary. He replaces her with Rhoda. In Iowa in 2013, Mary has no legal recourse.
This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive. Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms. In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.” Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).
The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.
Here is the official photo of the Justices of the Iowa Supreme Court. See if you can spot what they all have in common.
Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant. For ten years, she was an exemplary employee. She regarded her boss as a “father figure.” Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant. In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage. Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson. Ms. Nelson sued for gender discrimination. The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.
The Court’s original decision in late 2012 was greeted with outrage and ridicule. In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial. Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself. “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left). “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”
Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere. Of course it was “because of sex.” If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss. If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her. Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.
But back to Mary Richards. In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune. What if he re-hired Mary? Could Edie get her fired again in California? Not likely.
The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit. The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination. California state law takes a broader view of the impact of sexual favoritism on the workplace environment. Our Supreme Court has recognized that sexual favoritism is not merely a private matter. Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women. California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.
And besides. Why would Lou even listen to Edie? They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried. You can watch the wedding here.
Article originally appeared on CELA Voice on July 25, 2013. Reprinted with permission.
About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations. CELA VOICE is a project of the California Employment Lawyers Association. Our goal is nothing short of changing the discussion about issues of importance to California employees. Our method is simple. We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.