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April 24, 2014

Can You Fire an Employee for Being Too Sexy? Don’t Count on It, Notwithstanding A Recent Iowa Decision to the Contrary

On the Friday before Christmas, the Iowa Supreme Court issued an opinion in which it held that it is not gender discrimination for a male boss to fire a female subordinate on the grounds that she is an irresistible sexual attraction for him, even when the female employee engaged in no improper conduct.  Should you rely on this decision in making hiring and firing decisions?

Don’t count on it.

The Iowa Supreme Court decision issued on December 21, 2012, involved the firing of Melissa Nelson, a dental assistant, by dentist James Knight after ten years of employment – ten years of employment which Dr. Knight conceded were exemplary.

According to the published opinion, Dr. Knight complained toward the end of her employment that Ms. Nelson’s clothing was tight and “distracting.”  She denied her clothes were inappropriate, and there appears to be no proof otherwise.  Dr. Knight also told Ms. Nelson that “if she saw his pants bulging, she would know her clothing was too revealing.”

During the last six months of Ms. Nelson’s employment, Ms. Nelson and Dr. Knight started sending text messages to each other outside of work. Neither objected to the texting, but Dr. Knight’s wife, who was employed at the same dental office, found out about those messages in late 2009 and demanded he fire Ms. Nelson.

Dr. Knight acceded to his wife’s demands in early 2010, and fired her.  He told Ms. Nelson she had become a “detriment” to his family and that for the sakes of both their families, they should no longer work together.  He admitted that Ms. Knight was the “best dental assistant he ever had,” and that she had done nothing wrong.

The Iowa Supreme Court framed the legal question as 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.” Justice Edward M. Mansfield, writing for the all-male high court, found that such a firing did not constitute unlawful discrimination under the Iowa Civil Rights Act.

Clearly this is now the law of Iowa regarding claims under the Iowa Civil Rights Act.  But should employers outside of Iowa rely on this opinion?  Absolutely not.  This firing was clearly motivated by Ms. Nelson’s gender and Dr. Knight’s inability to control his sexual impulses.  This appears to be clear gender discrimination under any normal definition, and the Iowa opinion is under fire from legal commentators across the country.  It is doubtful that any other court would follow Iowa’s example.

Prudent employers should learn from Dr. Knight’s example and use it not as a model, but as a course of conduct to avoid.  Notwithstanding Iowa’s blessing, don’t rely on “irresistible attraction” as a basis for termination.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Amy D. Cubbage, Commercial Litigation Attorney, McBrayer Law Firm
Of Counsel

Amy D. Cubbage practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and...

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