"Dr. Knight complained to [his employee, Melissa] Nelson that her clothing was too tight and revealing and 'distracting.'..."

Posted by Charles Colman

Nelson v. James H. Knight DDS, P.C., 11-1857 (Iowa Jul. 12, 2013)

(excerpts from new opinion, issued in place of original 12/21/12 decision)



MANSFIELD, J. (for the Court) [emphasis added; footnotes omitted]

 

... In 1999, Dr. Knight hired Nelson to work as a dental assistant in his dental office. At that time, Nelson had just received her community college degree and was twenty years old.

Over the next ten-and-a-half years, Nelson worked as a dental assistant for Dr. Knight. Dr. Knight admits that Nelson was a good dental assistant....

On several occasions during the last year and a half when Nelsonworked in the office, Dr. Knight complained to Nelson that her clothing was too tight and revealing and "distracting." Dr. Knight at times asked Nelson to put on her lab coat. Dr. Knight later testified that he made these statements to Nelson because "I don’t think it’s good for me to see her wearing things that accentuate her body." Nelson denies that her clothing was tight or in any way inappropriate.

During the last six months or so of Nelson’s employment, Dr. Knight and Nelson started texting each other on both work and personal matters outside the workplace. Both parties initiated texting. Neither objected to the other’s texting. Both Dr. Knight and Nelson have children, and some of the texts involved updates on the kids' activities and other relatively innocuous matters. Nelson considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him....

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." . . . However, Nelson does not remember ever telling Dr. Knight not to text her or telling him that she was offended.

In late 2009, Dr. Knight took his children to Colorado for Christmas vacation. Dr. Knight’s wife Jeanne, who was also an employee in the dental practice, stayed home. Jeanne Knight found out that her husband and Nelson were texting each other during that time. When Dr. Knight returned home, Jeanne Knight confronted her husband and demanded that he terminate Nelson’s employment. Both of them consulted with the senior pastor of their church, who agreed with the decision. Jeanne Knight insisted that her husband terminate Nelson because 'she was a big threat to our marriage.'...

At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office. He had arranged for another pastor from thec hurch to be present as an observer. Dr. Knight, reading from a prepared statement, told Nelson he was firing her. The statement said, in part, that their relationship had become a detriment to Dr. Knight’s family and that for the best interests of both Dr. Knight and his family and Nelson and her family, the two of them should not work together. Dr. Knight handed Nelson an envelope which contained one month’s severance pay. Nelson started crying and said she loved her job....

[Stating relevant rules to be applied; summarizing each side's legal arguments]

Nelson’s arguments warrant serious consideration, but we ultimately think a distinction exists between (1) an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and (2) a decision based on gender itself. In the former case, the decision is driven entirely by individual feelings ande motions regarding a specific person. Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender. The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson’s view of the facts, Dr. Knight’s unfair decision to terminate Nelson (while paying her a rather ungenerous one month’s severance) does not jeopardize that goal. As the Platner [v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990)] court observed, "'[W]e do not believe that Title VII authorizes courts to declare unlawful every arbitrary and unfair employment decision.'" Id. at 905 (quoting Holder v. City of Raleigh, 867 F.2d 823, 825 (4th Cir. 1989)).

Nelson’s viewpoint would allow any termination decision related to a consensual relationship to be challenged as a discriminatory action because the employee could argue the relationship would not have existed but for her or his gender. This logic would contradict federal case law to the effect that adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable under Title VII....



CADY, Chief Justice (concurring specially) [emphasis added; footnotes omitted]

... What has emerged from this complex area of the law is the general legal principle that an adverse employment consequence experienced by an employee because of a voluntary, romantic relationship does not form the basis of a sex-discrimination suit. See Kahn v. Objective Solutions, Int’l, 86 F. Supp. 2d 377, 382 (S.D.N.Y. 2000) (collecting cases).

Moreover, this general rule is not confined to relationships involving sexual intimacy. The same rule is applied to consensual affiliations involving sexually suggestive conduct. See Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 910 (8th Cir. 2006) (holding no sex discrimination occurred when an employee was fired in a case where the employee engaged in physical conduct of a suggestive and risqué nature with her employer and wrote sexual or intimate notes to her employer); Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990) (holding no sex discrimination occurred when an employee was fired after engaging in sexually suggestive conduct with her supervisor who was also the owner's son). When employees are terminated due to consensual, romantic or sexually suggestive relationships with their supervisors, courts generally conclude the reason does not amount to sex discrimination because the adverse employment consequence is based on sexual activity rather than gender....

True to our governing legal authorities, a sex-discrimination claim predicated on physical appearance accompanied by a consensual personal relationship between the employee and employer requires proof that the physical appearance of the plaintiff was a gender-based reason for the adverse employment action. An adverse employment action based on a personal relationship that existed here between Nelson and Dr. Knight or its consequences is not actionable discrimination basedon sex under our statute....

Is important to observe that a critical aspect of the entire analysis centers on the consensual and voluntary nature of the personal relationship. The law that navigates through the intersection between sex discrimination and personal workplace relationships to reach the destination of nondiscriminatory conduct requires willing participants to the relationship. Of course, a personal relationship between an employer and subordinate can give rise to subtle issues of power and control that may make the line between consensual and submissive relationships difficult to draw. See generally Billie Wright Dziech, Robert W. Dziech II & Donald B. Hordes, "'Consensual' or Submissive Relationships: The Second-Best Kept Secret," 6 Duke J. Gender L. & Pol'y 83 (1999). This concern has been particularly observed in cases involving claims of sexual harassment, either hostile-environment claims or quid pro quo claims. See Ammons-Lewis v. Metro. Water Reclamation Dist., 488 F.3d739, 746 (7th Cir. 2007) (finding existence of voluntary relationship did not preclude sexual-harassment claim). Thus, the consensual aspect of a relationship is pivotal to the analysis of the claim of discrimination based on a personal relationship. In this case, it is undisputed the relationship was consensual....

 

 

Nelson v. James H. Knight DDS, P.C., 11-1857 (Iowa Jul. 12, 2013) (revised opinion)