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Can you fire someone because she’s too attractive?

published in Oklahoma Employment Law Letter | August 1, 2013

By Joshua W. Solberg

Did you hear about the dentist who fired his dental assistant because she was too attractive? That was the situation in a recent case?at least sort of. News outlets have run wild with the story of the woman who was fired because she is too “hot,” but the case has less to say about “appearance discrimination” than the media would let on.

Facts

Dr. James H. Knight, a dentist in Iowa, hired Melissa Nelson to work as a dental assistant. Over the next 10 and a half years, she worked as a dental assistant for him, and he admitted that she was a good at her job. In fact, he stated she was the best dental assistant he had ever had. Nelson in turn acknowledged that Knight generally treated her with respect, and she believed him to be a person of high integrity.

Around 2008, Knight began to complain to Nelson that her clothing was too tight, revealing, and “distracting.” He later testified that he made those statements because “I don’t think it’s good for me to see her wearing things that accentuate her body.” Despite that, Knight and Nelson both acknowledged texting each other toward the end of the employment relationship regarding personal and sometimes intimate matters. Neither one objected to the texting or to any aspect of the relationship. No one claimed there was sexual harassment or a hostile work environment.

In late 2009, Knight took his children to Colorado for Christmas vacation. His wife, Jeanne, who also was an employee in the dental practice, stayed home. She found out that her husband and Nelson were texting each other during that time. When Knight returned home, his wife confronted him and demanded that he terminate Nelson’s employment because “she was a big threat to [their] marriage.”

Following her termination, Nelson sued Knight and his dental practice, alleging one claim?that she had been discriminated against on the basis of her sex in violation of Iowa law. The district court dismissed the suit, finding that “Ms. Nelson was fired not because of her gender but because she was [a] threat to the marriage of Dr. Knight.” Nelson appealed to the Iowa Supreme Court.

Court’s decision

The supreme court set out the issue as a narrow one: “Can a male employer terminate a long-time female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” In other words, the issue in the case and the decision itself is less about appearance and more about jealousy and concern from a spouse.

The court ultimately found that yes, an employer can lawfully perform such a termination. The court held, “Nelson was fired because Jeanne Knight, unfairly or not, viewed her as a threat to her marriage.”

What the case doesn’t stand for

Despite what you may have heard, this decision doesn’t address whether an employee can be terminated based on her appearance?whether attractive or unattractive. However, as the concurring opinion in the case indicates, if Knight had terminated Nelson because she was too attractive or not attractive enough, she may have been able to state a claim. The concurring opinion states:

If a woman is terminated based on stereotypes related to the characteristics of her gender, including attributes of attractiveness, the termination would amount to sex discrimination because the reason for termination would be motivated by the particular gender attribute at issue. . . . Thus, just as an employer cannot fire an employee for not conforming to a sex stereotype embraced by the employer and their customers, an employer cannot legally fire an employee simply because the employer finds the employee too attractive or not attractive enough.

In the U.S. Supreme Court case Price Waterhouse v. Hopkins, the Court made clear that an employment decision based on a gender stereotype can be unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. In the case, the Court ruled that a female accountant who was denied partnership in part because of her failure to “dress more femininely, wear makeup, have her hair styled, and wear jewelry” was a victim of unlawful sex discrimination in violation of Title VII.

In addition to stereotypes, “Title VII has been held to have been violated where special appearance rules were imposed on members of only one sex.” In the case of Gerdom v. Cont. Airlines, Inc., the U.S. 9th Circuit Court of Appeals found that an employer discriminated against females in violation of Title VII by implementing a policy of requiring female flight attendants to adhere to certain weight restrictions. These types of cases, along with the reasoning set out in the concurring opinion in the Nelson case, indicate that appearance-type claims may be viable under the proper circumstances. Nelson v. James H. Knight DDS, P.C., ___ N.W.2d ___, 2013 WL 3483805 (Iowa, July 12, 2013).

What Oklahoma employers should do

Follow these tips to ensure your workplace decisions don’t violate discrimination laws:

  • Become informed about and train HR professionals and supervisors on employees’ rights and your obligations under Title VII, the Americans with Disabilities Act (ADA), the ADA Amendments Act (ADAAA), and other state and federal civil rights laws.
  • Review handbooks, policies, and procedures pertaining to equal employment opportunity, harassment, and discrimination policies, and have clear policies addressing relationships in the workplace.