Simply Irresistible?
July 18, 2013 5:46 AM   Subscribe

The Iowa Supreme Court has ruled that it is legal to fire someone for being too attractive. An Iowa dentist fired his assistant because his (unreciprocated) feelings of attraction to her might have tempted him to try to start an extramarital affair. The Iowa Supreme Court, an all-male body, determined that it was not a case of sex discrimination because it was based on feelings rather than gender. Many disagree, seeing it as a clear case of cultural, institutional, and even religious sexism (the firing was advised and encouraged by the dentist's pastor.)
posted by kyrademon (266 comments total) 26 users marked this as a favorite

 
So, basically, you can discriminate the hell out of (race or religion) as long as you swear that it's your fetish.
posted by Kid Charlemagne at 5:51 AM on July 18, 2013 [11 favorites]


Link to original decision (Dec. 21, 2012), and decision upon rehearing (July 12, 2013).
posted by cribcage at 5:52 AM on July 18, 2013 [2 favorites]


Damn, reading that article it seems like a countersuit for straight up sexual harassment is in order.

"Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing," the justices wrote.

The messages were mostly mundane, but Nelson recalled one text she received from her boss asking "how often she experienced an orgasm."

I mean god damn, that's the winning side?
posted by Think_Long at 5:53 AM on July 18, 2013 [67 favorites]


the article from the "religious" link was pretty good.

christian dude basically saying "hey non-religious people manage to keep it their pants. why can't this guy? and why should we blame someone else for our own desires?"

pretty awesome.
posted by sio42 at 5:54 AM on July 18, 2013 [5 favorites]


Ah, because grown men are not responsible for their own behaviour, and they need institutionalised protection for their lack of decency and self-control. Now where else have I seen that attitude?
posted by Decani at 5:57 AM on July 18, 2013 [49 favorites]


This is bad news for me, a handsome man!
posted by Mister_A at 5:57 AM on July 18, 2013 [28 favorites]


Guys, just remember: nothing a white male Christian does in America is actually his own fault.
posted by DoctorFedora at 5:57 AM on July 18, 2013 [96 favorites]


JFC.

What is wrong with these fucking people.
posted by kavasa at 5:59 AM on July 18, 2013 [2 favorites]


Sometimes I think we've hit Peak Sexism. Then something like this happens and I realise there is no Peak, just endless Fucking Awful Foothills of Shittiness.
posted by fight or flight at 5:59 AM on July 18, 2013 [42 favorites]


Tell me this case can be, and is going to be, appealed to a higher level.
posted by orange swan at 6:00 AM on July 18, 2013 [1 favorite]


Indeed, as part of Knight's defense, his lawyers noted Nelson was replaced by a different woman (whom he presumably found less pretty), which helped prove that he wasn't motivated by misogyny.

I think I might have an actual stroke.
posted by billiebee at 6:01 AM on July 18, 2013 [38 favorites]


I bet the guy suing Apple because he's addicted to porn is cheering this idiotic ruling.
posted by Thorzdad at 6:01 AM on July 18, 2013


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.

...

After briefing and oral argument, the district court sustained the motion. The court reasoned in part, “Ms. Nelson was fired not because of her gender but because she was threat to the marriage of Dr. Knight.” Nelson appeals.
posted by Foci for Analysis at 6:02 AM on July 18, 2013


what is this i don't even

*passes out*
posted by Kitteh at 6:02 AM on July 18, 2013 [2 favorites]


This just utter bullshit. Surely she has grounds for a harassment suit since it's been documented in this case?

However, I am totally using this as the excuse should I ever get fired.
posted by arcticseal at 6:03 AM on July 18, 2013 [1 favorite]


So, basically, you can discriminate the hell out of (race or religion) as long as you swear that it's your fetish.

Well, sure, that's hardly news. How many people have been sacked for being a 'poor fit' when the problem really was that they were of the wrong race/gender/religion/sexual orientation?
posted by hoyland at 6:05 AM on July 18, 2013 [5 favorites]


Given the way that sexual assault and domestic violence are going in this fine country of ours (and Canada!), how long until they legalize rape because women just look slutty?
posted by zombieflanders at 6:05 AM on July 18, 2013 [6 favorites]


I bet the guy suing Apple because he's addicted to porn is cheering this idiotic ruling.
posted by Thorzdad at 8:01 AM on July 18 [+] [!]


Hmm...how much money do you think mathowie has?
posted by goethean at 6:05 AM on July 18, 2013 [6 favorites]


Six months before Nelson was fired, she and her boss began exchanging text messages about work and personal matters, such as updates about each of their children's activities, the justices wrote.

The messages were mostly mundane, but Nelson recalled one text she received from her boss asking "how often she experienced an orgasm."

Nelson did not respond to the text and never indicated that she was uncomfortable with Knight's question, according to court documents.

Soon after, Knight's wife, Jeanne, who also works at the practice, found out about the text messaging and ordered her husband to fire Nelson.

The couple consulted with a senior pastor at their church and he agreed that Nelson should be terminated in order to protect their marriage, Cochrane said.


...

The two never had a sexual relationship or sought one, according to court documents, however in the final year and a half of Nelson's employment, Knight began to make comments about her clothing being too tight or distracting.

"Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing," the justices wrote.

Udderly ridiculous jurisprudence from Iowa.
posted by snuffleupagus at 6:06 AM on July 18, 2013


How much do you want to bet she was actually fired for refusing his advances? Or alternatively because she accepted his advances and he grew tired of her?
posted by windykites at 6:08 AM on July 18, 2013 [10 favorites]


"Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing," the justices wrote.

No, seriously. What. The. Hell.

This is beyond discrimination or temptation; this asshole was flat-out harassing her. Anyone who says stuff like that to a woman is not a victim.
posted by Kitteh at 6:08 AM on July 18, 2013 [12 favorites]


What the shit? Is this real?
While the two never became amorous, Dr. Knight made numerous comments about his sexual attraction to her, such as telling her that if she saw his pants bulging it meant her clothing was too revealing, and Nelson once commented to him that she and her husband had sex infrequently.

Nelson said Dr. Knight replied that seemed like “having a Lamborghini in the garage and never driving it.”
posted by phunniemee at 6:11 AM on July 18, 2013


How much do you want to bet she was actually fired for refusing his advances? Or alternatively because she accepted his advances and he grew tired of her?

If that were the case why wouldn't she allege that? As it is, she didn't even allege sexual harassment, which I find a little strange, but certainly if she were fired for refusing sexual advances or following a sexual relationship, you'd expect her to make that part of her case.
posted by Bulgaroktonos at 6:12 AM on July 18, 2013 [1 favorite]


What is wrong with these fucking people.

Part of it is that the court is entirely male. Marsha Ternus was once the chief justice but was ousted in the gay marriage backlash of 2010. She and the other two justices who were not retained (both male) were replaced with men.
posted by the christopher hundreds at 6:14 AM on July 18, 2013 [8 favorites]


I mean, he behaves inappropriately- sorry, illegally- and she gets fired. They've essentially just legalized, no, legislated, victim blaming.

Also WHY COULDN'T HE JUST INSTITUTE A DRESS CODE INSTEAD OF SEXUALLY HARRASSING AND THEN FIRING THIS WOMAN GRAAAAAR

I hope she sues the everloving crap out of him for sexual harassment. (Sexual harassment is still illegal, right?)
posted by windykites at 6:14 AM on July 18, 2013 [2 favorites]


So far as I can tell, she would've won if she claimed harassment. What a bummer.
posted by cellphone at 6:15 AM on July 18, 2013


From the opening of the opinion:


MANSFIELD, Justice.

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? This is the question we are required to answer today. For
the reasons stated herein, we ultimately conclude the conduct does not
amount to unlawful sex discrimination in violation of the Iowa Civil
Rights Act.

We emphasize the limits of our decision. The employee did not
bring a sexual harassment or hostile work environment claim; we are not
deciding how such a claim would have been resolved in this or any other
case. Also, when an employer takes an adverse employment action
against a person or persons because of a gender-specific characteristic,
that can violate the civil rights laws. The record in this case, however,
does not support such an allegation.


Also:
Because this case was decided on summary judgment, we set forth
the facts in the light most favorable to the plaintiff, Melissa Nelson.



Iowa appellate courts review summary judgment for "corrections of errors of law" in the lower court. Not de novo.

One has to wonder what her lawyer was thinking in not bringing the other claims.
Still, it's dubious to my mind to allow a basic at-will clause to excuse this kind of conduct.
posted by snuffleupagus at 6:16 AM on July 18, 2013 [7 favorites]


She claims she never felt threatened as the age difference made him feel like a father figure.
posted by Feisty at 6:17 AM on July 18, 2013


if that were the case why wouldn't she allege that?


Many reasons, one being that he might never have said "I am firing you because you aren't having sex with me".

There's a lot of fear and shame around being a victim of sexual crimes and, like many kinds of abuse, they often go unreported. I have a friend who was sexually harrassed by a schoolmate. Her boyfriend convinced her "not to pursue the issue" because of the "trouble it might make for her" and that it was "better just to let it go".
posted by windykites at 6:19 AM on July 18, 2013 [3 favorites]


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


Ding Ding Ding!

We have now cut through the salacious headlines and gotten to the question the court actually tried to answer.
posted by Tell Me No Lies at 6:21 AM on July 18, 2013 [22 favorites]


She claims she never felt threatened as the age difference made him feel like a father figure.

You don't have to feel threatened to be harassed--that would be related to Iowa's definition of a hostile work environment, or so I'd guess. Harassment is covered by Federal law, not just state law. Although this dental practice may be too small.

And even so, once she started to receive remarks that led to her termination, that may be enough. Having taken a quick look, the threat is one of firing, which happened here. Not of assault or rape.
posted by snuffleupagus at 6:22 AM on July 18, 2013


The case was brought by Melissa Nelson, 33, against Dr. James Knight of Fort Dodge, who fired her after his wife learned of text messages between the two. (NYT)

His WIFE learned about the text messages. How much do you want to bet the firing happened because the wife wanted it to happen?
posted by shivohum at 6:22 AM on July 18, 2013 [2 favorites]


the age difference made him feel like a father


I just- i- I can't even- auuuuuuuuggggghhhhh....

I'm done. I need puppy videos. Excuse me
posted by windykites at 6:23 AM on July 18, 2013 [2 favorites]


This has "struck down by the (national) Supreme Court" written all over it.
posted by twoleftfeet at 6:24 AM on July 18, 2013


This has "struck down by the (national) Supreme Court" written all over it.

Two words: Clarence Thomas.
posted by zombieflanders at 6:25 AM on July 18, 2013 [11 favorites]


This has "struck down by the (national) Supreme Court" written all over it.

No it doesn't.
posted by snuffleupagus at 6:25 AM on July 18, 2013 [6 favorites]


It's like the description of a one-act play or short story:
"the dentist, with his wife's encouragement, fired his assistant so he wouldn't be tempted to pursue a woman who'd expressed no romantic interest in him"
posted by doctornemo at 6:25 AM on July 18, 2013 [3 favorites]


Many reasons, one being that he might never have said "I am firing you because you aren't having sex with me".

That's not a barrier to bringing a lawsuit on this issue; it makes the case more . If he actually propositioned her, and then she was fired, any lawyer who was aware of those facts would make that part of her complaint.

My point generally, however, was that all we have to go on is her complaint and her testimony. She never testified that any of that happened. This guy looks bad enough without speculating about things you think he might have done, without any evidence.

His WIFE learned about the text messages. How much do you want to bet the firing happened because the wife wanted it to happen?

We don't have to speculate about that, it's precisely what he said happened according to the Court's opinion (on page 4).
posted by Bulgaroktonos at 6:26 AM on July 18, 2013 [2 favorites]


She claims she never felt threatened as the age difference made him feel like a father figure.

I imagine that was a withering blow to his poor precious male ego.
posted by Kitteh at 6:27 AM on July 18, 2013 [1 favorite]


The claim was brought under Iowa law (although they refer frequently to cases under Title VII cases under federal law in interpreting it), so there's no higher court to overturn this.
posted by Bulgaroktonos at 6:27 AM on July 18, 2013 [3 favorites]


This guy looks bad enough without speculating about things you think he might have done, without any evidence.

Because he's the real victim at the heart of this, right? Fucking hell.
posted by fight or flight at 6:28 AM on July 18, 2013 [4 favorites]


TGIF. Thank God I'm Fugly.
posted by ColdChef at 6:29 AM on July 18, 2013 [9 favorites]


No, because it's better to talk about how bad the situation actually is instead of how bad it looks if you turn the opinion 90 degrees and squint.
posted by Holy Zarquon's Singing Fish at 6:30 AM on July 18, 2013 [8 favorites]


The claim was brought under Iowa law (although they refer frequently to cases under Title VII cases under federal law in interpreting it), so there's no higher court to overturn this.

Yes, this. Here's wiki's overview of the doctrine of adequate and independent state grounds.
posted by snuffleupagus at 6:30 AM on July 18, 2013 [2 favorites]


NO YOUR WIFE SHOULD NOT BE ABLE TO DECIDE WHETHER YOU FIRE SOMEONE UNLESS YOUR WIFE IS THE HEAD OF HR/ A BUSINESS PARTNER WHAT THE FUCK
posted by windykites at 6:30 AM on July 18, 2013


I literally can't wrap my head around how this could be legal. I can understand (not approve of, mind) letting someone go for "poor fit", as someone said above. But to be so gutsy and essentially say "I am firing you because you give me boners" is something that, if a client came to me and asked me what to do, I would have to ask him to return the next day. So that I could get some form of LED-based "Settle, you idiot!" display mounted on my wall. Preferably with musical cues.

Oh, law.
posted by Lemurrhea at 6:31 AM on July 18, 2013 [5 favorites]


Courts at this level don't deal with questions about the facts, they deal with questions about the law. And 'I don't like you' is reason enough to fire somebody in this country most of the time, so 'my wife doesn't like you', unfortunately, is probably about the same.

What happened is disgusting, yeah, but--I'm not sure I disagree with the legal outcome. Or put it another way: If I hire my sexual partner as my secretary, and then we break up, do I have to keep employing them as my secretary? If I have a secretary and we flirt a bit and we go on a number of totally welcome dates but then it goes badly and we break up afterwards, what then? Yeah, if they weren't the gender I'm attracted to, it wouldn't have come up, but... it's a bit more than that. Hitting on your employees is rightly against policy at most larger organizations, but in a small business, lines get crossed sometimes. Bad idea, but illegal?

If there was actual sexual harassment, she should totally go after him for that, but that wasn't the question that was asked, here. I really hope she does, but I think the alternative decision here would have been seriously overreaching if you applied it to anybody else's situation.
posted by Sequence at 6:31 AM on July 18, 2013 [17 favorites]


So far as I can tell, she would've won if she claimed harassment. What a bummer.

But she didn't claim harassment. Are you bummed that she didn't feel harassed, or bummed that she didn't lie and claim she felt harassed?
posted by amorphatist at 6:32 AM on July 18, 2013 [2 favorites]


Oh for fucks sake, I didn't say he was a victim; he's obviously not. Don't put words in my mouth. I said "don't speculate without evidence." That's all. That should be a really basic principle of discussing something like this. Be outraged about the case before you, not a case you invent in your head.
posted by Bulgaroktonos at 6:32 AM on July 18, 2013 [21 favorites]


Look at those assholes, in a fleeting, clinical, and non-sexual way.
posted by dirtdirt at 6:32 AM on July 18, 2013 [1 favorite]


Christ, what an asshole. I'm sure I won't let Dr. Knight stick anything in my mouth in the future.
posted by octobersurprise at 6:32 AM on July 18, 2013


Sexism? Maybe.
Sexual harassment? As the fired worker claims, she never felt threatened by the "father figure". So that's not what it was.

Degradation of workers' rights? Hell yes.

What the great State of Iowa is allowing employers to do is make up a bullshit reason to fire employees they may not like because of race, sex, gender, orientation, etc...all the protected things under the guise of "threat to my marriage, through no fault of the employee".

So yeah, next time some racist or sexist manager wants to get rid of their black female employee, boom...they have court-approved reason.

Way to go, highest court in Iowa! No wonder everyone makes fun of you.

I guess we can change your State Motto from "Gateway to Illinois" to "just shitty".
posted by hal_c_on at 6:32 AM on July 18, 2013 [2 favorites]


Sometimes I wish it was a thing where sexist shit like this was presented by the media with the genders reversed so that when people inevitably got upset and called it an outrage we could immediately be like PSYCH IT WAS A WOMAN AND NOT A MAN BUT IT IS AN OUTRAGE I HOPE YOU'RE STILL ANGRY HA HA
posted by six-or-six-thirty at 6:32 AM on July 18, 2013 [23 favorites]


This is totally wrong anyway. The boss should fire all the ugly people and keep the attractive ones. It makes for a better work environment.

Amirite? Yes? Right? Anyone?
posted by twoleftfeet at 6:33 AM on July 18, 2013 [1 favorite]


There's a lot of fear and shame around being a victim of sexual crimes and, like many kinds of abuse, they often go unreported. I have a friend who was sexually harrassed by a schoolmate. Her boyfriend convinced her "not to pursue the issue" because of the "trouble it might make for her" and that it was "better just to let it go".

Yes, this. Most women are socialized to be polite and friendly in the workplace, even with people who are way overstepping normal boundaries, and while in a perfect world a woman might hold up her hand and declare, "THIS IS INAPPROPRIATE AND I AM UNCOMFORTABLE PLEASE DO NOT CONTINUE THIS BEHAVIOR" at the first instance of ickiness, there are many more shades of gray in real-life interactions. This makes it really easy for people to put the blame on the person being harassed, suggesting that because they may have approached the interaction with good faith, they somehow sent signals that the harasser was perfectly justified in interpreting as a green light.

There's an unbelievable amount of guilt and shame tied up in even the most cut-and-dried sexual harassment dispute, so I could absolutely see why it'd be more comfortable for her to pursue this from a discrimination rather than a harassment angle.
posted by superfluousm at 6:34 AM on July 18, 2013 [22 favorites]


If I hire my sexual partner as my secretary, and then we break up, do I have to keep employing them as my secretary?

Fuck yeah. Because your breakup feelings should in no way overrule that person's right to employment.

"Hey, sorry you have to go find a new job in a recession, and try and pay your bills and all, but now that I've finished putting my penis in you I kind of feel uncomfortable."
posted by billiebee at 6:36 AM on July 18, 2013 [37 favorites]


How can an unwilling participant in a nonexistent affair be a threat to someone's marriage? I wonder how Dr Creepo worded it to his pastor.
posted by elizardbits at 6:38 AM on July 18, 2013 [6 favorites]


But the plaintiff in this case is such a shrinking violet that she sued him for firing her. Of course it's possible that she was harassed but didn't allege it, but it would be nice if people didn't make the leap from possible, or indeed statistically likely, to actually happened in this case in which the plaintiff was represented by counsel, both of whom have financial incentives to actually win the case by bringing the strongest facts they have.
posted by gauche at 6:38 AM on July 18, 2013 [4 favorites]


So yeah, next time some racist or sexist manager wants to get rid of their black female employee, boom...they have court-approved reason.

Most jobs are at-will, meaning that an employee can be fired for any reason at all other than the prohibited ones. You could fire someone because you didn't like their personality, for instance, and that would be perfectly legal. This decision doesn't meaningfully add to that.
posted by shivohum at 6:38 AM on July 18, 2013 [8 favorites]


I think it would be fitting if all male judges, politicians and police officers were required to have very long beards.
posted by bonobothegreat at 6:39 AM on July 18, 2013


I wonder how Dr Creepo worded it to his pastor.

I imagine the word "Jezebel" made an appearance.
posted by billiebee at 6:39 AM on July 18, 2013 [8 favorites]


Be outraged about the case before you, not a case you invent in your head.

Believe me when I say I'm plenty outraged at the case before me. I apologise if I have misinterpreted your trying to keep the thread on track. It's been a long, hot, shitty week.
posted by fight or flight at 6:40 AM on July 18, 2013 [2 favorites]


This guy's total shittiness aside, it's probably legally correct as even federal equal employment protection doesn't protect against discrimination if the business has less than 15 employees. (Equal pay protection is always in effect, however.)

I think it's telling that even the court's decision was along the lines of "This is legally permissible but boy imagine if you'd sued for sexual harassment HINT HINT?"
posted by Freon at 6:40 AM on July 18, 2013 [5 favorites]


Part of it is that the court is entirely male.

And since men can't make decisons based on morals and laws, as upheld by this ruling, then you'd expect them to rule this way.
posted by The 10th Regiment of Foot at 6:42 AM on July 18, 2013 [2 favorites]


You could fire someone because you didn't like their personality, for instance, and that would be perfectly legal.

Seriously? Is this true? How the hell are half the workforce not fired on a daily basis? It's nice to know Northern Ireland is ahead of the game in some ways. Our Fair Employment laws are so tight you need a damn good reason to fire someone or risk being sued big time. And thankfully "Because I (or my wife) don't like you" is not one of them.
posted by billiebee at 6:45 AM on July 18, 2013 [1 favorite]


"Hey, sorry you have to go find a new job in a recession, and try and pay your bills and all, but now that I've finished putting my penis in you I kind of feel uncomfortable."

And does that change if I'm a woman and the other party dumped me? "Hi, sorry I told you that you're fat and undesirable after I slept with your best friend, but see you at work on Monday, and don't you dare deny me raises or anything because that's now discriminatory behavior." It could go either way.

Human beings have feelings, and feelings can get in the way of work. Some human beings are also assholes, but that doesn't mean that nobody's personal lives and work lives ever intertwine and that we should punish anybody who allows them to become so. And the way this question was worded, no, the court could not have chosen just to punish the assholes.
posted by Sequence at 6:45 AM on July 18, 2013 [3 favorites]


Honest question: why didn't she sue for sexual harassment? It seems weird that her lawyer didn't help her see how this would have been a perfectly good harassment case, even if she hadn't felt threatened at the time.
posted by Sticherbeast at 6:46 AM on July 18, 2013 [2 favorites]


Just putting aside the whole obvious sexism going on here, I have to wonder why it's so easy to fire people in the US without the employer suffering any consequences. It seems like you could just make up any old reason: left-handed, Phil Collins fan, irritating laugh, wears too much polyester, etc. In much of Europe, this kind of arbitrary firing, even without sexism, would cost the employer a lot of money and possibly land him in court.
posted by mr.ersatz at 6:46 AM on July 18, 2013 [5 favorites]


How the hell are half the workforce not fired on a daily basis?

Becuase HR people forget to put "must maintain good interpersonal skills and communications" in their job descriptions.
posted by The 10th Regiment of Foot at 6:47 AM on July 18, 2013


So wait. What if this happened at a Hooters in Iowa? Would Iowa's highest court still decide this way? Serious question here.
posted by hal_c_on at 6:47 AM on July 18, 2013


And does that change if I'm a woman and the other party dumped me?

Absolutely not. People might have feelings, but surely that's why there are laws? To stop feelings getting in the way of someone having a job and earning a living?
posted by billiebee at 6:47 AM on July 18, 2013 [2 favorites]


Honest question: why didn't she sue for sexual harassment?

She may not have wanted her entire personal history dragged through the court in the process of a sexual harassment suit. I'm not saying that's the decision she made, and I'm not saying if she did make it that it was the right legal decision, but it is really, really hard and really unpleasant to make formal sexual harassment claims and that is a reason why someone might forgo that and focus on something like wrongful termination instead.
posted by superfluousm at 6:49 AM on July 18, 2013 [3 favorites]


The Iowa court essentially tells us why Nelson's attorneys didn't pursue a sexual harassment claim. It doesn't suggest they should have.
Nelson’s one-count petition alleges that Dr. Knight discriminated against her on the basis of sex. Nelson does not contend that her employer committed sexual harassment. See McElroy v. State, 637 N.W.2d 488, 499–500 (Iowa 2001) (discussing when sexual harassment amounts to unlawful sex discrimination and restating the elements of both quid pro quo and hostile work environment sexual harassment). Her argument, rather, is that Dr. Knight terminated her because of her gender and would not have terminated her if she was male.
The part about "McElroy v. State" is a legal citation intended to explain the previous sentence ("Nelson does not contend that her employer committed sexual harassment"). So let's look at McElroy v. State, pages 499–500. I'll remove the (myriad) citations, as well as a few passages specific to that case, so it's more comprehensible.
It is widely recognized that sexual harassment is a form of sexual discrimination actionable under Title VII. One type of harassment is linked to the grant or denial of tangible aspects of employment. This is known as quid pro quo sexual harassment. Additionally, in 1986, the United States Supreme Court decided the watershed case of Meritor Savings Bank v. Vinson, which held that a sexual harassment case could also be brought under Title VII on the basis of a hostile or abusive work environment. Thus, Title VII is violated when sexual harassment is so "severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'"

The concept that a hostile work environment claim is actionable when the sexual harassment is so severe or pervasive as to alter the conditions of employment and create an abusive working environment has been frequently applied by courts since Meritor and is well engrained in the law. ...

A hostile work environment claim is premised on the concept that sexual harassment can impact the conditions of employment well beyond the denial or granting of economic or tangible benefits. Title VII covers more than the terms and conditions of employment "in the narrow contractual sense." Instead, when an employer creates a hostile work environment, employees are forced to "`run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living....'" The hostile or abusive work environment itself affects a condition of employment because the employee must endure an unreasonably offensive environment or quit working.

Thus, when an employee is exposed to sexual harassment that is so severe or pervasive that it creates an abusive working environment, the sexual harassment necessarily affects a condition of employment. The conditions of employment are altered by the existence of the hostile working environment. This is the very essence of the claim.
So that's the legal background. We have a good summary of Nelson's facts, but just a summary. The court had a full review of the evidence. If the court wanted to stomp up and down on Nelson's attorneys—who specialize in employment law—for failing to allege sexual harassment, it could have. (Courts do.) Instead, we get a brief mention and a throwaway citation. Generally speaking, this suggests that claim couldn't have been sustained on the evidence.
posted by cribcage at 6:50 AM on July 18, 2013 [12 favorites]


I have to wonder why it's so easy to fire people in the US without the employer suffering any consequences.

It varies from state to state and by the type of employment and employer. States and jobs with collective bargaining rights, for example, are a lot more like European jobs. That said a private employer in most states could fire you for looking at him/her funny.
posted by The 10th Regiment of Foot at 6:50 AM on July 18, 2013


Honest question: why didn't she sue for sexual harassment? It seems weird that her lawyer didn't help her see how this would have been a perfectly good harassment case, even if she hadn't felt threatened at the time.

This is a question to be asked by the plaintiff's next lawyer.
posted by snuffleupagus at 6:51 AM on July 18, 2013 [1 favorite]


This is a story from last year. I don't know why we're discussing it now.

Just sayin.
posted by twoleftfeet at 6:52 AM on July 18, 2013 [2 favorites]


Because your breakup feelings should in no way overrule that person's right to employment.

"Right to employment," how quaint.

If anyone needs me I'll be over here weeping.
posted by Ice Cream Socialist at 6:52 AM on July 18, 2013 [4 favorites]


This is a story from last year. I don't know why we're discussing it now.

Just sayin.


IN THE SUPREME COURT OF IOWA

No. 11–1857

Filed July 12, 2013


I guess you didn't close your loop, eh?
posted by snuffleupagus at 6:53 AM on July 18, 2013 [8 favorites]


Yes, in the U.S., with a couple of exceptions such as

1) certain specific types of blatant discrimination, or
2) jobs that are backed by a strong union,

you can be fired from most jobs at any time, for any reason, up to and including random whim.

(Incidentally, the current swath of laws aiming to destroy what remnants of union organization remain in the U.S. are known as "Right To Work" laws. And they say the far right doesn't have a sense of humor ...)
posted by kyrademon at 6:53 AM on July 18, 2013 [5 favorites]


This is a story from last year. I don't know why we're discussing it now.

A (presumably) final decision was issued six days ago.
posted by cribcage at 6:53 AM on July 18, 2013


I'm still in the dark as to why, when someone in a position of authority says that "it was a good thing [Nelson] did not wear tight pants too because then he would get it coming and going" to another person in their employ, it is not enough grounds to sue for sexual harassment in the state of Iowa. Is it because no actual bodily contact took place (that we know of)? Honest question.
posted by fight or flight at 6:54 AM on July 18, 2013


It's not accurate to make that statement, regarding arbitrary firings, with regard to the US as an entirety. (At least not structurally.) At will statutes are state law.
posted by snuffleupagus at 6:54 AM on July 18, 2013


Per her attorneys' statement, they asked for the court to reconsider the original decision; this was the decision on reconsideration.
posted by Bulgaroktonos at 6:55 AM on July 18, 2013


That said a private employer in most states could fire you for looking at him/her funny.

Unless the person is part of a federally protected class, right? Which is likely why they pursued the angle that she was fired for being female.
From quote above: Her argument, rather, is that Dr. Knight terminated her because of her gender and would not have terminated her if she was male.
posted by aught at 6:55 AM on July 18, 2013 [1 favorite]


If anyone needs me I'll be over here weeping.

I'll be over here, trying to make ends meet, and making sure not to sing my siren song too loudly.
posted by billiebee at 6:57 AM on July 18, 2013 [5 favorites]


Unless the person is part of a federally protected class, right?

As mentioned in the thread a couple times, generally speaking the EEOC covers employers of fifteen people or more.

If you're talking about general equal protection and protected classes, this dentist is not a state actor.
posted by snuffleupagus at 6:57 AM on July 18, 2013


Unless the person is part of a federally protected class, right? Which is likely why they pursued the angle that she was fired for being female.

It has to do with the reason you were fired, not whether you're part of a protected class. I can't fire someone because of their race, sex, et., but I can fire anyone of any class for looking at me funny, (assuming they're an at-will employee). Motivation is what matters.
posted by Bulgaroktonos at 6:57 AM on July 18, 2013 [3 favorites]


The Iowa Supreme Court has a long history of getting things right. I have a hard time believing this decision came from the same bench.
posted by scottatdrake at 6:58 AM on July 18, 2013


Well, one good thing that comes out of this case is that everyone knows what horrible people this perv and his wife are. I hope Ms. Nelson gets a better job offer from someone who is neither a perv nor an asshole, and that Dr. Perv loses all his female patients, who can't really deal with the idea of being attended to by Dr. Bulgypants McInappropriate.
posted by emjaybee at 6:59 AM on July 18, 2013 [13 favorites]


The Iowa Supreme Court has a long history of getting things right. I have a hard time believing this decision came from the same bench.

They're unusual in that they're elected, and IIRC in the last election the wingnuts voted in a bunch of anti-gay, anti-woman, anti-choice ideologues.
posted by zombieflanders at 7:00 AM on July 18, 2013


who can't really deal with the idea of being attended to by Dr. Bulgypants McInappropriate.

Yeah, no fucking way am I letting some dude doctorize me in any way after he's gone on record to say that he can't control his sexual urges around unwilling women.
posted by elizardbits at 7:01 AM on July 18, 2013 [29 favorites]


How can an unwilling participant in a nonexistent affair be a threat to someone's marriage? I wonder how Dr Creepo worded it to his pastor.

he probably could have just said that she dresses in a way that gives him sexual thoughts and since that's basically porn it's a threat to his marriage. there are websites and surveys dedicated to teen men giving teen women advice about how to dress so it doesn't arouse them in any way. sadly, this is an ongoing message. i left the mormon church (and my family home) 15+ years ago and i still spend hours looking at my wardrobe before i go back home because i don't want my v-neck to be too tempting to my male family/their friends or whatever, mostly because i was taught from a young age that someone's reaction to my body is my responsibility.
posted by nadawi at 7:02 AM on July 18, 2013 [7 favorites]


A (presumably) final decision was issued six days ago.

Fair enough. But this story was major news six months ago. Like, really major news and the supposed finality of the decision doesn't elevate its interest (to my mind).

It's a really bad thing we're doing here. If we're going to make this all about sexual discrimination and so forth, the way the media played it in December of last year, then there should be real grounds for that claim. It's a bad thing to make that claim without evidence.

Also, I object to the numerous press reports which point out that the Iowa Supreme Court is all male. The pretended implication is that jurisprudence has been thwarted by a lack of a vagina, but that is a view most dismal of our entire judicial system.

Sexual discrimination exists, undoubtedly, and it's a bad thing. But don't fight that battle where it doesn't exist.
posted by twoleftfeet at 7:04 AM on July 18, 2013 [2 favorites]


beyond the obvious grossness of the specifics in this case - this is why you don't work for small family businesses unless you're part of the family (not at all saying it's the victim's fault, just expressing why i avoid this type of work). because it's not just this guy's wife who made the call, she's also the coworker of the fired woman - which adds an extra shitty dynamic. don't like the way your coworker blows her nose? just tell your husband she's a threat to your marriage.
posted by nadawi at 7:04 AM on July 18, 2013 [1 favorite]


the christopher hundreds: "What is wrong with these fucking people.

Part of it is that the court is entirely male. Marsha Ternus was once the chief justice but was ousted in the gay marriage backlash of 2010. She and the other two justices who were not retained (both male) were replaced with men.
"

Much of the effort in that backlash was led by one Bob Vander Plaats, douchenozzle extraordinaire. The most notable thing about this man is that, in our old newsroom script writing software, his last name auto-corrected to "underpants".
posted by jason_steakums at 7:04 AM on July 18, 2013 [10 favorites]


> "They're unusual in that they're elected, and IIRC in the last election the wingnuts voted in a bunch of anti-gay, anti-woman, anti-choice ideologues."

Close, but not quite. They are appointed by the governor, and then the public votes on whether or not to retain them after a certain period. Three justices were voted out in 2010, largely viewed as being a backlash against the court's pro-same sex marriage decision, and their replacements, still currently serving, were appointed by Republican governor Terry Branstad.
posted by kyrademon at 7:05 AM on July 18, 2013 [1 favorite]


Why does it seem like every day is just an opportunity to outstupid the day before?
posted by Benny Andajetz at 7:06 AM on July 18, 2013 [10 favorites]


Well, strike the 'just' and that is an inarguable truism. Shame to waste an opportunity!
posted by snuffleupagus at 7:07 AM on July 18, 2013 [1 favorite]


Why the anti-nanny state nutjobs and Republicans aren't all over this with outrage is very telling but we know such outrage is selective, particularly when it comes to women. Relying on the State and the law to enforce your own lack of personal responsibility when you're apparently of sound mind (i.e. you're not a person who has a condition where you cannot, by nature, make responsible decisions) is beyond horrible.
posted by juiceCake at 7:08 AM on July 18, 2013 [2 favorites]


Well, one good thing that comes out of this case is that everyone knows what horrible people this perv and his wife are.

That's how you and I interpret it. But many of the repressed asshats of middle America will think, "Thank goodness the good Dr and his wife are rid of the slut!" and keep going to him for their fillings and bridgework, probably offering him congratulations and condolences for the trouble the lawsuit-crazy legal system has caused him. Maybe even hold him a fundraiser in the church hall to help pay his legal bills, the poor poor man.
posted by aught at 7:08 AM on July 18, 2013


So, no chance of this case getting reviewed at all? I'm already on the phone with my wig dealer because [hair tearing-out noises and guttural sobs]
posted by gobliiin at 7:08 AM on July 18, 2013 [2 favorites]


Judicial election is complicated, occurs by varying methods, and is almost uniformly terrible but not remotely unusual. See Fact Sheet on Judicial Selection Methods in the States (2002). There's a whole other FPP to be done on the various pitfalls, most of which occur frequently but are tolerated because giving the people a voice is considered, in some places, paramount.
posted by cribcage at 7:09 AM on July 18, 2013


So, no chance of this case getting reviewed at all? I'm already on the phone with my wig dealer because [hair tearing-out noises and guttural sobs]

Well, metafilter gives it two thumbs down.
posted by snuffleupagus at 7:09 AM on July 18, 2013 [3 favorites]


Why the anti-nanny state nutjobs and Republicans aren't all over this with outrage

Who do you think wrote and voted for at-will employment laws, consequences be damned?
posted by zombieflanders at 7:10 AM on July 18, 2013


Why does it seem like every day is just an opportunity to outstupid the day before?

To be fair to contemporary times, this description pretty much applies to most of human history, doesn't it?
posted by aught at 7:12 AM on July 18, 2013 [3 favorites]


It's a really bad thing we're doing here. [...] It's a bad thing to make that claim without evidence.

i don't care what technical name we give it - and if you find this conversation boring because you've already had it there's lots of other threads - but the facts in this case are absolutely sexist and it really sucks that somehow telling an employee if they see your dick get hard her clothes are too tight, it isn't illegal and can end in the victim losing her job. it is not a bad thing to discuss that.

Also, I object to the numerous press reports which point out that the Iowa Supreme Court is all male. The pretended implication is that jurisprudence has been thwarted by a lack of a vagina, but that is a view most dismal of our entire judicial system.

the argument has been being made for a very long time that a lack of diversity in our courts absolutely influences how decisions are made. you can object all you want, but this isn't the first place that claim has been made and it won't be the last. i think courts should be made up of near equitable numbers of men and women and should be statistically similar to the racial, religious, etc demographics of our country - not in a quota sort of way, but as a goal of our society to try to correct for bias.

posted by nadawi at 7:13 AM on July 18, 2013 [12 favorites]


Sometimes I think we've hit Peak Sexism.

Pretty sure that was when women couldn't vote, own property or work outside the home. This is horrible, but we live in times where most people recognize it as such.

I hope she sues and wins for harassment and shuts down his practice forever.
posted by spaltavian at 7:14 AM on July 18, 2013 [4 favorites]


he probably could have just said that she dresses in a way that gives him sexual thoughts and since that's basically porn it's a threat to his marriage.

Well certainly if you accept the "thoughts about adultery are adultery" line then the threat to his marriage is obvious; he's committing adultery every time he sees her. Despite being Christian, I find that type of thinking crazy, but it is out there.

That doesn't change the fact that, if you accept that, it should really be on him to look at her without experiencing sexual thoughts, but it does explain how someone can see a threat to their marriage without any actual expected sexual contact.
posted by Bulgaroktonos at 7:14 AM on July 18, 2013 [1 favorite]


Unless the person is part of a federally protected class, right?

As Bulgaroktonos rightly notes, the general rule of at-will employment is that your employer can fire anybody, regardless of their protected class status, for any reason other than the fact of their participation in a protected class.

If it helps, remember that being a part of a protected class is not something that applies to some people but not to others. Everybody is part of a protected class, because everybody has race, gender, familial status, &c. They can't fire you because of your race even if you're white; they can't fire you because of your sex even if you're a man.

But even though everybody is a member of a protected class, a member of a protected class can still be fired under at-will employment for no other reason than "in my opinion as manager, they are not right for the job." They just can't be fired for such reasons as: "they are black/female/single/Muslim/old/foreign."

None of this is to say that this particular case was decided rightly.
posted by gauche at 7:17 AM on July 18, 2013 [4 favorites]


No matter how you cut it, "my hangups are your problem" has no rational legal basis.
posted by Benny Andajetz at 7:18 AM on July 18, 2013 [1 favorite]


That doesn't change the fact that, if you accept that, it should really be on him to look at her without experiencing sexual thoughts, but it does explain how someone can see a threat to their marriage without any actual expected sexual contact.

In precisely the same way that body thetans can explain how someone can see Xenu as a threat to their spiritual integrity.
posted by snuffleupagus at 7:18 AM on July 18, 2013


This has "struck down by the (national) Supreme Court" written all over it.

Why -- is there a corporate interest in striking down the court's decision?
posted by goethean at 7:18 AM on July 18, 2013 [5 favorites]


I can't believe that the three justices who were put in place to replace those "activist judges" voted out because of their affirmative same-sex marriage decision in Varnum v. Brien would be the type of guys to come to this decision.

Oh wait, what's the opposite of that?
posted by MCMikeNamara at 7:21 AM on July 18, 2013 [3 favorites]


Despite being Christian, I find that type of thinking crazy, but it is out there.

oh yeah - i don't think it's all christians (or muslims or jewish people or any other group) - but that his statements to me suggest that he's that type of crazy and so is his wife and it would follow that they'd be in a church that has similar thoughts on the matter. i was just saying that he could tell his pastor the story basically as it happened and his pastor could have agreed that the woman had to go.
posted by nadawi at 7:21 AM on July 18, 2013


The only reason we really need laws is to prevent exactly this kind of social persecution. Appalling.
posted by saulgoodman at 7:21 AM on July 18, 2013


I'm too gobsmacked to comment on the actual case, but I would just like to share that Iowa dentists are fucked up. My husband's former dentist in Cedar Rapids had a creationist museum in his waiting room. With a self-published book on sale called "And God Created Darwin."

Of course, my high school boyfriend was the son of an Iowa dentist, so...

(His dad once told my mom, while in the dental chair, "[Mom], you're a youthful woman, but judging by your teeth... if you were a horse, I wouldn't buy you.")
posted by Madamina at 7:22 AM on July 18, 2013 [7 favorites]


It used to be said that Cambridge would only employ as bedders women who were 'nec pulcher nec juvenis' but I have no idea how they squared that with the law even if it was actually true.
posted by Segundus at 7:25 AM on July 18, 2013


It seems to be that the proper course of action would have been for the doctor to quit. Just because he is an employer doens't mean he can"t resign. A far as i know there is no law against going out of business and starting a new one somewhere else.
posted by three blind mice at 7:25 AM on July 18, 2013 [1 favorite]


If you read the decision, there is an 8th circuit case they cite heavily that is almost the same facts (wife asks man to fire woman because of potential affair, woman sues under gender discrimination) and decided the same way. The primary difference is that in that case the woman was friendly to the advances, and in this case she is not. The question that this court took up is whether that difference matters, since there is no real contention that she was fired for her actions, but just for the general situation of being attractive and present.
posted by smackfu at 7:28 AM on July 18, 2013 [1 favorite]


No one protects the little person. Right?

I don't think this counts as sexual discrimination. This isn't a corporation. This isn't the hard-working woman who has hit the glass ceiling, passed up for promotion and paid less than a man for the same job.

Don't do this. Don't spin your wheels on this trash.

It's a dentist's office. When was the last time you went to the dentist? It's a handful of people. Five or six people work in a dentist's office. This time the dentist felt icky sexy about one of the people working there. Happens all the time without a necessarily sexual backstory.

Don't spin your wheels, don't waste your outrage over this. There are bigger battles to fight.
posted by twoleftfeet at 7:28 AM on July 18, 2013 [3 favorites]


It seems to be that the proper course of action would have been for the doctor to quit. Just because he is an employer doens't mean he can"t resign. A far as i know there is no law against going out of business and starting a new one somewhere else.

Is this sarcasm? I honestly can't tell. The end result for the employee of the practice going out of business would still be that she wouldn't be employed. This doesn't really seem like a course of action that would make a bit of difference.
posted by Bulgaroktonos at 7:29 AM on July 18, 2013 [1 favorite]


the proper course of action would have been for him and his wife to remain professional and deal with the broken trust within their relationship instead of bringing it to work and firing a woman with 3 kids at home.
posted by nadawi at 7:29 AM on July 18, 2013 [29 favorites]


Isn't the real conclusion of this case, as indicated by comments upthread, that it is simply too easy to fire someone in Iowa. It should not be legal for an employer to fire someone because their wife does not like them!
posted by Cannon Fodder at 7:30 AM on July 18, 2013 [1 favorite]


i don't care about the size of company. i don't care that he had a hard time controlling the fullness of his cock. i care that woman was fired for being a woman (who was too attractive to the man and too threatening to her coworker/his wife). if you have bigger battles to fight, go fight them.
posted by nadawi at 7:32 AM on July 18, 2013 [11 favorites]


I hope she sues and wins for harassment and shuts down his practice forever.

Cribcage helpfully unpacked why this is unlikely a little ways upthread:

The Iowa court essentially tells us why Nelson's attorneys didn't pursue a sexual harassment claim. It doesn't suggest they should have....So that's the legal background. We have a good summary of Nelson's facts, but just a summary. The court had a full review of the evidence. If the court wanted to stomp up and down on Nelson's attorneys—who specialize in employment law—for failing to allege sexual harassment, it could have. (Courts do.) Instead, we get a brief mention and a throwaway citation. Generally speaking, this suggests that claim couldn't have been sustained on the evidence.

Which I accept as rather persuasive, despite my dissatisfied grousing.
posted by snuffleupagus at 7:33 AM on July 18, 2013 [1 favorite]


Don't spin your wheels, don't waste your outrage over this. There are bigger battles to fight.

Writing off experiences like this because, hey, it's just one woman, and it's a small office, and she's better off, and fuck Iowa anyway, right, adds up and makes it easier for the culture at large to dismiss much larger injustices. It's a slow erosion, but an erosion all the same.

Whether you're concerned mostly with the sexism aspect of this case or the ease with which employees can be dismissed for frivolous reasons, there's absolutely use in discussing and drawing attention to and feeling anger about cases like these, however small and inconsequential they may seem to you.
posted by superfluousm at 7:33 AM on July 18, 2013 [25 favorites]


that it is simply too easy to fire someone in Iowa.

I don't know, it seems odd that so many people seem to think the main reason people aren't getting fired left and right is because of the law. People aren't getting fired because companies don't like to fire people, it's expensive and they still need to be replaced.
posted by smackfu at 7:34 AM on July 18, 2013 [2 favorites]


People aren't getting fired because companies don't like to fire people, it's expensive and they still need to be replaced.

In Iowa people have been getting fired left and right the last few years. We lagged the economic downturn and are lagging the recovery as well. I survived 6 or 7 rounds of layoffs at my old job, and watched as whole sectors were gutted. I can pull up numbers and cites if you need them, but I find that kind of linking tedious.
posted by cjorgensen at 7:38 AM on July 18, 2013


Simply Irresistible?

As far as Robert Palmer song titles, I would have gone with this one.
posted by Strange Interlude at 7:39 AM on July 18, 2013 [1 favorite]


don't waste your outrage over this

Woman loses her job because her boss thinks he can't control himself around her? I'll be as damn outraged as I like. Don't waste your concern.
posted by billiebee at 7:41 AM on July 18, 2013 [26 favorites]


Don't spin your wheels, don't waste your outrage over this. There are bigger battles to fight.

I mean, isn't this the exact message that this decision communicates to women who may find themselves in sketchy situations at work?
posted by gobliiin at 7:41 AM on July 18, 2013 [25 favorites]


Come on, people. Right to work may be shitty, but it's the governing law here, and this is a correct legal decision. This wasn't a protected-class firing, or any sort of gender discrimination. It might well have been, legally, a case of sexual harassment, as has been pointed out, but it was not before the court to determine whether sexual harassment occurred. The issue before the court in a gender discrimination lawsuit is whether the firing was based primarily on the employee's gender, and it wasn't - I mean, is anyone gonna argue that if the employer had these same feelings about a male employee, he would have been kept on?

"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" was the operative question, as Tell Me No Lies points out. The answer is yes, because that's not an inherently gender-based firing.
posted by kafziel at 7:42 AM on July 18, 2013 [5 favorites]


The issue before the court in a gender discrimination lawsuit is whether the firing was based primarily on the employee's gender, and it wasn't - I mean, is anyone gonna argue that if the employer had these same feelings about a male employee, he would have been kept on?

I would, but not on legal grounds, so I'll refrain.
posted by snuffleupagus at 7:43 AM on July 18, 2013 [1 favorite]


we discuss shitty laws all the time and how we feel they miss the mark. why does this specific case get a "come on people" and "stop spinning your wheels"?
posted by nadawi at 7:43 AM on July 18, 2013 [13 favorites]



"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" was the operative question, as Tell Me No Lies points out. The answer is yes, because that's not an inherently gender-based firing.


The use of the words "male" and "female" as part of the question aren't relevant then, no?
posted by billiebee at 7:45 AM on July 18, 2013 [1 favorite]


Writing off experiences like this because, hey, it's just one woman, and it's a small office, and she's better off, and fuck Iowa anyway, right, adds up and makes it easier for the culture at large to dismiss much larger injustices.

Bullshit. This is media pablum. There is a gender gap between men and women. Women are paid less than men for the same jobs. That's the really bad thing.

Making this about sexuality, getting outraged because "she was fired for being irresistible", just plays into tabloid sensationalism and results in stupid inaction. If you really care about women in the workplace don't waste your time on this one case.

This whole kerfuffle frames women as purely sexual beings, and that demeans their evident competence as completely equal workers.
posted by twoleftfeet at 7:45 AM on July 18, 2013


we discuss shitty laws all the time and how we feel they miss the mark. why does this specific case get a "come on people" and "stop spinning your wheels"?

That language goes to outrage vs. impact, which I disagree with -- but I found the 'trash' bit more disturbing. The issue is not 'trash.'
posted by snuffleupagus at 7:45 AM on July 18, 2013


Yeah, I can accept that the legal decision is correct. Because the law is shitty. We can talk about that.

It's the same type of situation as the Zimmerman/Martin deal.
posted by Lemurrhea at 7:46 AM on July 18, 2013 [3 favorites]


As much as the dentist sounds like a total creep, and as much as I don't like what happened here as far as how it affected the fired employee, I personally can't work up a proper froth over this decision. At least, I can't work up a proper froth beyond a larger, more general case against at-will employment.

This particular decision undergirds structural sexism in the same way that at-will employment and other such libertarian-ish things generally tend to reinforce existing power structures, but taken as case law, it doesn't really bring a whole lot new to the table.

As mentioned upthread, this decision doesn't really add much new to Iowa's at-will employment. Generally speaking, in an at-will state, you can indeed be fired for your looks. The choice to fire on that basis may come from a relatively neutral, well-grounded belief in what the ideal employee should or should not look like, or, as in this case, that decision could come from something much more base and venal. It's deeply shitty that she herself got fired for appearing "tempting" to the dentist, but it really is very hard to prove discrimination against women when she was replaced with another woman.

I'm also not sure that being fired for "being beautiful" is any less blameworthy than being fired (or not hired) for being, well, not-beautiful. Let's say you're interviewing a bunch of candidates for a position, and you're down to two comparable candidates: one woman who is traditionally good-looking and traditionally well-dressed, and another woman who is not "traditionally" good-looking and who dresses in a more nonconformist fashion. Let's say you hire the latter woman - both candidates were really good, but the latter woman just "seems" more like someone up your alley, or like someone with whom you could deal at 9am. For sake of argument, there's nothing on either woman's resume which would suggest this - you really have been drawing these inferences from how each woman looks, dresses, etc. Should the first woman have a cause of action against you for discriminatory hiring practices?

Or, let's say it comes down to two comparable candidates of the same gender, yadda yadda yadda. The only utterable difference between them is that one superficially reminds you of your nasty ex to a painful extent, and the other does not. You talk about this dilemma with your SO, who says, "well, if all other things are equal, then go for the one who doesn't bring up bad memories." You follow this advice, and you pick the candidate who does not remind you of your nasty ex. Should the one who did remind you of your nasty ex have a cause of action against you?

Or, let's say that you do wind up hiring the person who reminds you of your nasty ex. It drives you batty for this reason, and eventually you fire this person when you can't take it anymore. You immediately replace this person with somebody of the same gender. Nobody will say that your decision to fire that person was admirable, but should that person have a cause of action against you for gender discrimination, even though both them and their replacement were of the same gender?

Remember, the case before the court was about the firing itself. It's nasty and gross that the dentist was talking about his erection, and it's profoundly immature that he couldn't deal with having an attractive-to-him person at the office, but that's more the material of a sexual harassment suit.

...

Why the anti-nanny state nutjobs and Republicans aren't all over this with outrage is very telling but we know such outrage is selective, particularly when it comes to women. Relying on the State and the law to enforce your own lack of personal responsibility when you're apparently of sound mind (i.e. you're not a person who has a condition where you cannot, by nature, make responsible decisions) is beyond horrible.

Definitionally, the "nanny state" would tell you when you can or can't fire people. In this case, the court said that the state could not penalize this man for firing this woman. It's not necessarily a good decision, but there's nothing "nanny state" about it.
posted by Sticherbeast at 7:46 AM on July 18, 2013 [6 favorites]


The use of the words "male" and "female" as part of the question aren't relevant then, no?

As to the decision? Frankly, no, they're not. That's the point - the relative genders of the people in this particular case does not make the case automatically one of gender discrimination.
posted by kafziel at 7:48 AM on July 18, 2013


If you really care about women in the workplace don't waste your time on this one case.

This whole kerfuffle frames women as purely sexual beings, and that demeans their evident competence as completely equal workers.


Yes. That is why, as someone who cares about women in the workplace, I am angry about this one case.
posted by elizardbits at 7:49 AM on July 18, 2013 [12 favorites]


if the dentist had inappropriate thoughts and said inappropriate things to his male employee because he's found that he has some good old fashioned closeted christian homo stirrings, i would still hope that he, his wife, and his pastor would deal with the personal issue and he (and she) would remain professional in the office. if that didn't happen, i would hope that the male employee would get some sort of severance or settlement to help cushion the blow while he looked for less shitty employment.

This whole kerfuffle frames women as purely sexual beings, and that demeans their evident competence as completely equal workers.

what?? the dentist did that. the court enforced that view. the fired employee tried to say that she was an employee just like any other and that his feelings were his problem. how does her standing up and saying she's not responsible for his hardons frame women as sexual beings?
posted by nadawi at 7:49 AM on July 18, 2013 [11 favorites]


if the dentist had inappropriate thoughts and said inappropriate things to his male employee because he's found that he has some good old fashioned closeted christian homo stirrings, i would still hope that he, his wife, and his pastor would deal with the personal issue and he (and she) would remain professional in the office.

I'm fairly confident he wouldn't have breathed a word of it to anyone. Let alone taken action that might have made it a public issue. As opposed to tacitly endorsed sexism, which here had the gall to clothe itself in moral and spiritual rectitude.

If the (hypothetical) person in question was openly gay, however, this charming Doctor might have found some other way to fire him, such as for a "personality" that was a poor fit for his clientele.
posted by snuffleupagus at 7:55 AM on July 18, 2013


Making this about sexuality, getting outraged because "she was fired for being irresistible", just plays into tabloid sensationalism and results in stupid inaction. If you really care about women in the workplace don't waste your time on this one case.

This whole kerfuffle frames women as purely sexual beings, and that demeans their evident competence as completely equal workers.


I think you're mischaracterizing the tone of the discussion here. Everyone is agreeing with you that her level of attractiveness is beside the point. The outrage is not because a beautiful woman was fired for being too beautiful, but because all evidence suggests an employee was fired for reasons that had nothing to do with her competence, which many people feel (rightfully!) is sexist and unjust. The dentist was the one treating women as sexual objects and nothing more.

Again, these kind of small, individual injustices are what add up to the wider societal problems you mentioned. The existence of a gender wage gap is sustained on the individual level, by people who see particular women in the workplace and do not see them as equals. This is what people are talking about when they say "The personal is political." It is absolutely worth the outrage.
posted by superfluousm at 7:55 AM on July 18, 2013 [11 favorites]


these kind of small, individual injustices are what add up to the wider societal problems you mentioned.

I disagree. Even if I agreed, I don't see how anybody could change that, fighting a zillion tiny battles everywhere at once.

What kind of idiot still believes that women are some kind of lesser being, worth less than a man? The majority of university students are women. Almost a third of working women nationwide now out-earn their husbands.

The premise of this story, this old story, is that we're back in the 1950s and we should be mad about it.

But we're not. And I'm not going back.
posted by twoleftfeet at 8:04 AM on July 18, 2013


More people than you might care to believe hold those opinions, and worse.
posted by Sticherbeast at 8:07 AM on July 18, 2013 [1 favorite]


The ruling of the court undoubtedly leaves an unpleasant taste in one's mouth. As many upthread have said (far more eloquently than I could have), this may represent broader problems in the nature of state employment law.
posted by The Zeroth Law at 8:07 AM on July 18, 2013


Even if I agreed, I don't see how anybody could change that, fighting a zillion tiny battles everywhere at once.

Then you should more closely study the history of civil rights in the United States.
posted by snuffleupagus at 8:07 AM on July 18, 2013 [9 favorites]


lots of idiots believe that - sexism isn't a thing we've won. "fighting a zillion tiny battles" in this case means discussing it. how is that different than any other thread here? why are you so invested in stopping this conversation?
posted by nadawi at 8:07 AM on July 18, 2013 [1 favorite]


What kind of idiot still believes that women are some kind of lesser being, worth less than a man?

Lots of them, and they're serving in state legislatures and in Congress and sitting on courts.

If you don't want to participate in this discussion, that's absolutely fine, but it's unreasonable to expect other people not to have it just because you don't want to.
posted by superfluousm at 8:08 AM on July 18, 2013 [16 favorites]


What kind of idiot still believes that women are some kind of lesser being, worth less than a man?

Everybody who voted against the Lilly Ledbetter Fair Pay Act, for starters. You may notice a trend among who opposed it, especially in the Senate.
posted by zombieflanders at 8:10 AM on July 18, 2013 [3 favorites]


A thing about right to work states is that only the absolute idiot bosses give the employee the real reason for firing in situations like this. They could literally make up any reason to explain the firing that isn't discriminatory. I'm sure the cases that actually go to court and get reported on aren't anywhere near the majority of cases like this, since the incentive for the employer is to make up an innocuous-sounding lie and wash their hands of the whole thing. Bonus points if your stated reason includes the employee breaking minor rules (like being a few minutes late, for whatever reason) so you can give them an explanation that hurts their chances of receiving unemployment.
posted by jason_steakums at 8:11 AM on July 18, 2013 [6 favorites]


I read things like this and then get to the comments along the lines of "technically legally the question before the court" etc as if the technical aspect of the law was of a higher importance than the functional aspect rather than merely serving as the means to the end of justice. I don't care about the legal mumbo jumbo and I don't think most people do. I care that a woman was fired for being a woman.
posted by ishrinkmajeans at 8:11 AM on July 18, 2013 [4 favorites]


The outrage is not because a beautiful woman was fired for being too beautiful, but because all evidence suggests an employee was fired for reasons that had nothing to do with her competence, which many people feel (rightfully!) is sexist and unjust.

This seems to me to be about at-will employment, and not gender/sexism related per-se. As someone mentioned upthread, switch the gender of the complainant, and one would expect the same outcome. I wonder if those criticizing at-will employment have actually been a small employer, or worked at one? If I, the boss, hire somebody and eventually decide it's a mistake, should I be compelled to keep this employee until they die or retire? Jeebuz, that's a scary thought.
posted by amorphatist at 8:15 AM on July 18, 2013


I don't care about the legal mumbo jumbo and I don't think most people do.

Yeah, right-o. That's how it works.
posted by Wolof at 8:20 AM on July 18, 2013 [2 favorites]


Well, that depends. In this hypothetical, are you deciding it's a mistake because you can't stop getting erections around your much-younger employee and that's somehow her fault?

You're absolutely right that this is a labor issue too, so taking sex and gender entirely out of it, I think people are taking issue with the idea that an employee can be dismissed for capricious reasons completely beyond their control and outside the scope of their job. No one is advocating that small businesses should have to hire for life, no matter how the employee performs.
posted by superfluousm at 8:20 AM on July 18, 2013 [2 favorites]


everyone keeps saying if the genders are swapped that the same outcome is to be expected - but i frankly disagree. the legal question might not deal with gender, but the moral question of this guy being a jerkass absolutely does. a female boss wouldn't fire her male employee for making her panties damp and if she did and was dumb enough to tell him that was the reason, she wouldn't be getting the support of a certain segment of the christian right.

the larger ethical issue is how much responsibility should women have for the sexual thoughts of men. this is a question that sadly the answer is not agreed upon. many, many people think that he did the moral thing in "saving his marriage" from his improper thoughts (and that the employee was probably a harlot who drove him to those thoughts anyway). i don't find this to be a small, insignificant, solved since the 50s issue.
posted by nadawi at 8:23 AM on July 18, 2013 [9 favorites]


I wonder if those criticizing at-will employment have actually been a small employer, or worked at one? If I, the boss, hire somebody and eventually decide it's a mistake, should I be compelled to keep this employee until they die or retire?

I'm HR-ish at a very small company. We fire (and hire!) people all the time, because part of being a small company and startup is that we really need only the people who are the best fit, and can't afford the slack. There are always concrete, specifically-related-to-job-duties reasons we can point to for letting someone go.

It's a "mistake" to hire a java coder when you need someone who knows C++. It's just flat out wrong to fire someone who can do their job well just because they make your wiener all tingly.
posted by phunniemee at 8:24 AM on July 18, 2013 [8 favorites]


hire somebody and eventually decide it's a mistake, should I be compelled to keep this employee until they die or retire? Jeebuz, that's a scary thought.


Yes, if your reasons are tangential to the employees ability to do their job.
posted by Cannon Fodder at 8:24 AM on July 18, 2013 [4 favorites]


If I, the boss, hire somebody and eventually decide it's a mistake, should I be compelled to keep this employee until they die or retire? Jeebuz, that's a scary thought.

Yeah... that's not the only other option. "At-will employment" and the stuff you said are not the only two employer-employee relationships.
posted by jason_steakums at 8:24 AM on July 18, 2013 [3 favorites]


I mean really, that's like arguing we should all eat underripe fruit because otherwise we'll all have to eat rotten fruit.
posted by jason_steakums at 8:26 AM on July 18, 2013 [7 favorites]


Wolof its sort of like if I came up with a ridiculously complicated physical framework for the universe that was an attempt to create a Unified Field Theory. It seems to be predictive in some things but it also states "couches cannot exist". Do you need to know the inner workings of the model to know this is a ridiculous statement? Likewise we have a decision here where, functionally, a woman was fired after pretty severe sexual harassment. I don't really care what technical gymnastics a court in a historically bigoted state went through to reach their conclusion. The conclusion is wrong and therefore their model is broken, not the other way around.
posted by ishrinkmajeans at 8:26 AM on July 18, 2013 [2 favorites]


I don't care about the legal mumbo jumbo and I don't think most people do.

What an odd stance. Myself, when I'm about to start expressing fervent opinions on an issue to strangers, I usually try to make sure those opinions are informed, rather than openly rejecting the facts and context of the issue. Different strokes, I guess?
posted by kafziel at 8:28 AM on July 18, 2013 [6 favorites]


This is a thread about a lawsuit. Thus, though you may not care about the 'legal mumbo jumbo,' we don't care that you don't care. I mean, gold star. But this was a case that was tried in a court, appealed to another, and we are discussing the result.
posted by snuffleupagus at 8:29 AM on July 18, 2013 [3 favorites]


I think the point is that the law was made for Man, not Man for the law.

(see what i did there?)
posted by tel3path at 8:30 AM on July 18, 2013 [1 favorite]


it seems there can be a few discussions here - some people will want to discuss the ethical issues, some will want to discuss the court issues, some will want to discusses bias on the court (especially in light of the specific history of how those justices got there), some will want to discuss at will employment. the only people getting on my tits are the ones saying we shouldn't discuss it any further because the law was applied correctly and discussing it demeans the place of women in society.
posted by nadawi at 8:32 AM on July 18, 2013 [5 favorites]


I think the point is that the law was made for Man, not Man for the law.

Of course. I think most of those participating here agree with the sentiment: " I care that a woman was fired for being a woman." But that's the whole reason to care about the 'mumbo jumbo,' and dismissing it as so much noise is just bombast.
posted by snuffleupagus at 8:32 AM on July 18, 2013


Nadawi I agree. If people want to discuss the technical aspect they can go for it but the whole "this is the technical aspect so therefore case is decided for all rational people" is sort of shit and sort of also pretty wrong.
posted by ishrinkmajeans at 8:34 AM on July 18, 2013


snuffleupagus - from my reading the dismissing happened as a reaction to a couple people here who are insisting there's nothing to discuss because the law was applied correctly. i saw the mumbo-jumbo line as "ok all you internet legal scholars, fine, i still want to discuss what happened here." on preview - yes, what ishrinkmajeans said.
posted by nadawi at 8:35 AM on July 18, 2013 [2 favorites]


cribcage: “So that's the legal background. We have a good summary of Nelson's facts, but just a summary. The court had a full review of the evidence. If the court wanted to stomp up and down on Nelson's attorneys—who specialize in employment law—for failing to allege sexual harassment, it could have. (Courts do.) Instead, we get a brief mention and a throwaway citation. Generally speaking, this suggests that claim couldn't have been sustained on the evidence.”

I am not a lawyer, but I'm more than a little surprised by this. Everyone agrees that this man made the comment to his employee about how she'd know if her clothing was inappropriate if she saw his pants bulging. That comment, in itself, as a thing, should be enough to prove sexual harassment. No other evidence should be necessary, and no kind of context ought to disprove it.

twoleftfeet: “I don't think this counts as sexual discrimination. This isn't a corporation. This isn't the hard-working woman who has hit the glass ceiling, passed up for promotion and paid less than a man for the same job. Don't do this. Don't spin your wheels on this trash. It's a dentist's office. When was the last time you went to the dentist? It's a handful of people. Five or six people work in a dentist's office. This time the dentist felt icky sexy about one of the people working there. Happens all the time without a necessarily sexual backstory. Don't spin your wheels, don't waste your outrage over this. There are bigger battles to fight.”

Do you think this was sexual harassment?
posted by koeselitz at 8:35 AM on July 18, 2013 [1 favorite]


hire somebody and eventually decide it's a mistake, should I be compelled to keep this employee until they die or retire? Jeebuz, that's a scary thought.

Yes, if your reasons are tangential to the employees ability to do their job.


Fair enough, I think I see your position. However, I would argue that in a small-employer situation where employee-interaction is critical and intense, just about any factor that makes me dislike/not-want-to-interact with another employee affects my ability to do my job. And that could be that I'm appalled by their body odor, can't stand the pitch of their voice, don't like their acne, or even that I'm distracted sexually by them. It sucks and it's unfair, but I don't think it should be illegal.
posted by amorphatist at 8:35 AM on July 18, 2013


the christopher hundreds: Marsha Ternus was once the chief justice but was ousted in the gay marriage backlash of 2010. She and the other two justices who were not retained (both male) were replaced with men.

Thanks, I was wondering how the same court that approved same-sex marriage back in 2009 could make this ruling. Wikipedia has a short section on the judicial retention elections that lead to the current justices.
posted by filthy light thief at 8:37 AM on July 18, 2013


regardless, if you find yourself calling a meeting with your pastor, your employee, and your wife (who is a peer to the employee, at least in name) to fire the employee for making your dick hard by merely existing, you might want to consider if you're a shit person.

also, did she suddenly blossom into the hottest woman ever or something - was it like one of those movies where the nerdy girl takes off her overalls and puts on a pair of heels and suddenly it's like, whoa, who's the new girl? because otherwise, why hire her in the first place? it's not like he was forced to hire her and needed to correct this obvious error...
posted by nadawi at 8:40 AM on July 18, 2013 [3 favorites]


However, I would argue that in a small-employer situation where employee-interaction is critical and intense, just about any factor that makes me dislike/not-want-to-interact with another employee affects my ability to do my job. And that could be that I'm appalled by their body odor, can't stand the pitch of their voice, don't like their acne, or even that I'm distracted sexually by them. It sucks and it's unfair, but I don't think it should be illegal.

How small is "small-employer"? And why should it be limited to small companies? To be honest, all of those listed grievances are petty, but the bigger question is, if you find those things off-putting, why did you hire them in the first place?
posted by filthy light thief at 8:41 AM on July 18, 2013


snuffleupagus - from my reading the dismissing happened as a reaction to a couple people here who are insisting there's nothing to discuss because the law was applied correctly. i saw the mumbo-jumbo line as "ok all you internet legal scholars, fine, i still want to discuss what happened here." on preview - yes, what ishrinkmajeans said.

Ah, gotcha. Well, if it's any consolation, with regard to:

"this is the technical aspect so therefore case is decided for all rational people"

part of the motivation to be so technically focused, at least in deciding the case, is to avoid giving precisely this offense.
posted by snuffleupagus at 8:42 AM on July 18, 2013


Do you think this was sexual harassment?

There is no allegation of harassment in the legal claim.

Also, I don't think this case of one dentist's office is anywhere close to meriting serious attention.

I don't think any of this helps women in any way, and may actually be bad for women. It's not right to project events in one dentist's office outward, suggesting that workplace relationships are primarily motivated by sex.
posted by twoleftfeet at 8:42 AM on July 18, 2013


The Iowa Supreme Court has ruled that it is legal to fire someone for being too attractive.

That would be a terrible judicial opinion if that is what the Court said. Luckily, that is not at all what the Court said.

dios's law: if a claim is being made about the particular import of a Court decision or case that explicitly states or implies that the result will be alarming or yield a transformational new world, then the claimant of same does not understand what the Court is actually deciding.

As as has been ably demonstrated above, the Iowa Court was resolving a specific legal question that is very different than how this post sensationally characterizes it. Sadly, that has become standard fare in legal posts.

This Doctor is a scumbag. Hopefully the press has hurt his business significantly. This lady was treated poorly; it sounds like she was a good employee, and hopefully she got another job. I won't presume to comment on the decision-making of her lawyers because I don't have all of the evidence, but their posturing of this case is curious. There must be some evidence that we cannot glean from the Court's opinion that factored into their decision to bring the case on these grounds alone. Regardless, how this case was presented is what led to this result. And while the result is unsatisfactory for this woman, I'm not sure how the Court could have fashioned a favorable remedy without creating far-reaching precedent. The danger is often that "hard cases make bad law."

In the mid 19th century, there was a famous English common law case called Winterbottom v. Wright. It was a contractual privity case: Wright was hired to repair and maintain mail carriages by the Post Office. Winterbottom, a postman, was hurt when the carriage he was driving broke down. He sued Wright for failing to keep the carriages in working order as he contracted to do. The Court decided that Winterbottom could not bring a negligence case against Wright because Winterbottom was not in privity under the contract between Wright and the Post Office. The case is often taught in law school for that reason. But it is also famous because of a line which has been repeated many times in cases since:
This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but, by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law.
This is another case to which that applies. This lady was mistreated. But the law cannot remedy all wrongs. Trying to remedy this one may have led to bad law.
posted by dios at 8:45 AM on July 18, 2013 [24 favorites]


mumbo jumbo

Ugh, we're a country of laws, and if you can't tolerate some of us trying to understand what laws went into creating this crappy situation, which is a necessary step for understanding how we can fix them to prevent situations like this in the future, then I can't tolerate your GRAR.
posted by kiltedtaco at 8:47 AM on July 18, 2013 [3 favorites]


How small is "small-employer"? And why should it be limited to small companies?

Pretty small. If an employee can be moved to a different "department" of the business, such that the conflicting parties no longer need to work together directly (15-20 maybe, per the federal guidelines mentioned above), then that's probably no longer small-employer enough so that that argument ("employees need to work intensely together" etc) still stands.

To be honest, all of those listed grievances are petty, but the bigger question is, if you find those things off-putting, why did you hire them in the first place?

Sexual attraction can grow. People can develop bad breath. Relationships can go bad. Something you once found attractive about somebody you now find repulsive. People change. This is trivial to answer, not "the bigger question".
posted by amorphatist at 8:51 AM on July 18, 2013 [1 favorite]


[Folks, no one has to be in this thread. Say your piece and move on if you don't want to be part of the discussion]
posted by jessamyn at 8:54 AM on July 18, 2013 [1 favorite]


twoleftfeet: “There is no allegation of harassment in the legal claim.”

As cribcage said, it is not unusual for courts to speak to charges that should have been brought but weren't. And it's a concern when charges should have been brought but weren't.

“Also, I don't think this case of one dentist's office is anywhere close to meriting serious attention. I don't think any of this helps women in any way, and may actually be bad for women. It's not right to project events in one dentist's office outward, suggesting that workplace relationships are primarily motivated by sex.”

I'm not sure why you're concerned about "projecting events outward." The Iowa Supreme Court's decision in this case was very careful not to project outward, pointing out that it was a limited decision that didn't necessarily apply to a lot of cases. That's because the point of a single decision isn't generally to create a broad new law, but to rule on a specific case. There is no need to "project outward" here; the Court could have simply ruled that this was a case of sexual harassment, and moved on.

You seem to be concerned that everyone here is calling for blood and looking to change the entire system based on one case. I'm not convinced that that's true. It may well just be about how this case appears to have been decided in an odd or incomplete or (most importantly) unjust way.
posted by koeselitz at 8:56 AM on July 18, 2013 [1 favorite]


amorphatist: "Fair enough, I think I see your position. However, I would argue that in a small-employer situation where employee-interaction is critical and intense, just about any factor that makes me dislike/not-want-to-interact with another employee affects my ability to do my job. And that could be that I'm appalled by their body odor, can't stand the pitch of their voice, don't like their acne, or even that I'm distracted sexually by them. It sucks and it's unfair, but I don't think it should be illegal."

1) Employees have to deal with that stuff amongst each other all the time, and they manage. Accommodations are made, or they just deal with it. 2) At the end of the day, you'll be employed and they will not, because you couldn't adapt. Families can be destroyed by a firing, new work isn't just waiting for people. "It sucks and it's unfair, but..." is really easy for the one with a safety net to say.
posted by jason_steakums at 8:57 AM on July 18, 2013 [8 favorites]


I am really disturbed by the number of people in this thread who believe she should file a suit for sexual harassment despite the fact that she testified under oath that she had a respectful relationship with her boss.

They were working together for over ten years, during which I'm certain that both of them said inappropriate things from time to time. Harassment requires repeated pervasive behavior, not a single drunken comment made at the office party.

From what I can glean from the court documents (everyone has read those before commenting, yes?) she isn't claiming harassment because she didn't feel harassed. A terribly unusual course to take I know, and perhaps even a naive one given the U.S. legal system, but frankly I can get behind not suing someone for a particular type of personal harm when I don't feel that type of personal harm happened.
posted by Tell Me No Lies at 8:57 AM on July 18, 2013 [4 favorites]


one question...why isn't the Iowa supreme court on fire right now?
posted by sexyrobot at 9:06 AM on July 18, 2013 [1 favorite]


From what I can glean from the court documents (everyone has read those before commenting, yes?) she isn't claiming harassment because she didn't feel harassed.

I think there's some confusion in the thread about what is means to feel "threatened" for the purposes of "harassment," as well as the common sense of the word harassment vs. the legal claim, prompted by (possibly paraphrased) quotations. And those quotations likely allude to the elements of harassment (or hostile work environment) under either Iowa or Federal standards, hard to know what the ultimate source was thinking, which we are at any rate sort of lumping together in discussion. It's not unreasonable for people to be unclear on what to take away regarding the viability of a harassment claim.
posted by snuffleupagus at 9:08 AM on July 18, 2013


Tell Me No Lies: “From what I can glean from the court documents (everyone has read those before commenting, yes?) she isn't claiming harassment because she didn't feel harassed. A terribly unusual course to take I know, and perhaps even a naive one given the U.S. legal system, but frankly I can get behind not suing someone for a particular type of personal harm when I don't feel that type of personal harm happened.”

Hm. This is something that troubles me for a number of reasons. The biggest one is this: there's a false perception that "sexual harassment" is in the eye of the beholder, and that it's not actually sexual harassment unless it makes someone uncomfortable. But as far as I can tell, this isn't true. It isn't about feelings; it isn't about whether the comment arouses her or pisses her off. It's about the strict and concrete appropriateness or inappropriateness of the comments and actions of an employer.

To take what I think is a parallel example (although it is obviously not on the same scale) – I imagine I have a friend who comes to me and tells me that someone had sex with them without their consent, that it's bothering them enough to bring legal charges, but that they don't really feel raped, mostly because the person who did it was someone they respect and like.

Now: what do I say to that friend? I want to respect their desires and their feelings about what happened and what ought to happen as a result. And that's something I'm going to try to do. But at the same time, I really feel like they need to know that they were raped, and if what happened disturbs them, it's okay to admit to themselves that they were raped; and I will encourage them to think a bit about whether they should respect and like someone who would rape them. That's clearly not a simple thing, and I'd want to say all of that carefully; but as a friend, I'd feel some responsibility to say it.

That's kind of how I feel here. I'm not sure if it matters whether she felt harassed. She was harassed. Were I the court, I would have tried to make this clear by saying that, while she may feel this way or that way, and she is entitled to her feelings, what the dentist said and did violated laws against sexual harassment.
posted by koeselitz at 9:12 AM on July 18, 2013 [5 favorites]


one question...why isn't the Iowa supreme court on fire right now?

Maybe because Iowans don't like using violence as a means to resolve their disputes?
posted by banal evil at 9:13 AM on July 18, 2013 [5 favorites]


twoleftfeet: “There is no allegation of harassment in the legal claim.”

As cribcage said, it is not unusual for courts to speak to charges that should have been brought but weren't. And it's a concern when charges should have been brought but weren't.


There's no evidence of harassment. None. Not worth thinking about.

If you ask a Supreme Court, even one in Iowa, to pursue a claim without evidence because the pursuit of that claim reinforces prejudices or stereotypes about common inter-personal relationships, they shouldn't do it. Period.
posted by twoleftfeet at 9:13 AM on July 18, 2013 [2 favorites]


Wasn't this an episode of Ally McBeal?
posted by Jacqueline at 9:17 AM on July 18, 2013


Were I the court, I would have tried to make this clear by saying that, while she may feel this way or that way, and she is entitled to her feelings, what the dentist said and did violated laws against sexual harassment.

Really? You're a court of appeals and you think it's your job to say "hey, I don't care about the case that was actually brought and the arguments that were actually made, I'm going to rule on a case that wasn't brought and about which no legal arguments--pro or con--have been made because I'm pretty sure, reading between the lines, that IF such a case had been brought it would have been super convincing"?

That sounds like a pretty crappy court of appeals.
posted by yoink at 9:18 AM on July 18, 2013 [7 favorites]


it's still worth discussing if this is ethically unacceptable behavior by the boss, no matter what the legal definitions of words are.
posted by nadawi at 9:19 AM on July 18, 2013


Indeed, as part of Knight's defense, his lawyers noted Nelson was replaced by a different woman (whom he presumably found less pretty), which helped prove that he wasn't motivated by misogyny.

"I'm not prejudiced against hot women. I have friends who are hot women. Well, actually no I don't because I would be too tempted to bang them. What was the question?"
posted by dry white toast at 9:19 AM on July 18, 2013 [3 favorites]


The court may allude to claims which should have been brought, but they don't have to. The court most certainly cannot rule on a sexual harassment claim which has not been brought.
posted by Sticherbeast at 9:19 AM on July 18, 2013 [1 favorite]


It's obviously the sexual attraction aspect of it that's making this case controversial, because it's not at all uncommon for a woman to be fired, in an at-will-employment state, for arousing negative nonsexual emotions in her employer. An employee can be fired for being annoying, or being deemed to have a bad attitude, or just making the boss agitated for whatever reason.

Therefore, I don't know if this firing can be fairly deemed discriminatory or sexist, although it certainly is necessarily gender-related insofar as it involves heterosexual sexual attraction. The employer made the decision to terminate his employee for personal reasons not related to job competence, but AFAIK that is perfectly OK in an at-will state as long as it doesn't fall within one of the defined exceptions. The employer exercised his power in a way that was obnoxious and unfair; however, it wasn't a power that favored one gender over another, but one that favors all employers in an at-will state over all employees. We can talk about how crappy this dentist is for allowing his personal feelings to harm his assistant for no fault of her own, but that has no bearing on anything except whether the law should permit employers to fire workers for personal reasons.

Although it's true (I'm assuming) that the assistant would not have been fired if she had not been a woman, it can't be accurately said that the dentist fired her specifically because she's a woman, since the defining issue was not her gender but her employer's feelings about her in particular. Unless there is some record or known accusations of the dentist sexually harassing other women, it's also not accurate to characterize him as "a man who can't control his impulses around unwilling women," because there's no evidence that this isn't an isolated incident involving one particular woman. Whatever his relationship was with this woman, there's no reasonable foundation to infer that it's characteristic of his relationships with women in general.

Since this is a small business situation involving a boss and an employer, it's not really a case of discriminatory treatment like others in which a male employee has inappropriate feelings about a female employee and it's the woman who is punished or fired. In this case, one person felt he could not continue to work with another person, so one of them had to go, but one of these people was the owner of the business. Obviously the boss can't remove himself since it's his business, so the employee has to go by default. Of course, "has to" is debatable, and if the two people involved were both employees, the appropriate solution would be "tough shit, deal with it." But in this case, it's an employer and employee, and the employer is under no legal obligation at all to deal with it or make any concession or adjustment to the situation.

I feel the dentist did act objectionably, not because he terminated the assistant, but because he did so in a way that failed to respect her job competency. Because her termination was due to personal reasons and not related to her actual work performance, the dentist should have made adequate accommodations on her behalf, such as sufficient severance to help carry her until she found other employment, or even better, finding her a position in another dentist's office. In my view, that's what makes him an asshole and rightly condemned. I can't judge whatever was going on in his personal life, and my feelings about his decision to fire his employee are not relevant to his right to do so, but the manner in which he fired his assistant was absolutely shitty and wrong.
posted by El Sabor Asiatico at 9:20 AM on July 18, 2013 [5 favorites]


it's still worth discussing if this is ethically unacceptable behavior by the boss, no matter what the legal definitions of words are.

Is there much to discuss there, though? Who doesn't think that the boss was an utter asshole? It isn't the court's job, however, to decide who is and who isn't an asshole; it's the court's job to decide (in this case) if the lower court correctly decided the case before it with respect to the laws as they are written. If you actually read their opinion (rather than the cartoonishly silly caricature of the opinion that you get in all the headlines about the case) it is clear that, at the very least, there's good arguments to be made that they did that job to the best of their abilities.
posted by yoink at 9:22 AM on July 18, 2013 [5 favorites]


There's no evidence of harassment. None. Not worth thinking about.

You cannot possibly know this. Unless you happen to be the plaintiff attorney's discovery clerk.

If you ask a Supreme Court, even one in Iowa, to pursue a claim without evidence because the pursuit of that claim reinforces prejudices or stereotypes about common inter-personal relationships, they shouldn't do it. Period.

Supreme Courts don't "pursue" claims. And I'm not sure what the sneering tone is meant to add, but your backwards reading of the social valence of the non-legal aspects mystifies me.
posted by snuffleupagus at 9:23 AM on July 18, 2013 [2 favorites]


Supreme Courts don't "pursue" claims.

No, indeed they don't. But that is what people who wish that they had ruled on a case of "sexual harassment" that was not brought before them are asking them to do.
posted by yoink at 9:25 AM on July 18, 2013 [1 favorite]


we're not in court. we're on metafilter - so what can or cannot be found in court isn't the basis of what we can discuss. and there is something to discuss about the boss being an asshole since there are people in this thread, and through out the discussion of this case in other places, who have said that in small businesses this is just the way it is and too bad for her that she had to lose her job but that the boss did nothing wrong.
posted by nadawi at 9:26 AM on July 18, 2013 [3 favorites]


I'm not sure if it matters whether she felt harassed. She was harassed. Were I the court, I would have tried to make this clear by saying that, while she may feel this way or that way, and she is entitled to her feelings, what the dentist said and did violated laws against sexual harassment.
posted by koeselitz 5 minutes ago


I understand your frustration, but harassment cannot be objective like that because then precludes office-place romances that are desired and with complete consent. Assuming a company does not have a policy against, there is no legal prohibition against two consenting adults flirting or using sexually inappropriate language in the workplace. So if you went with the statement that reference to an erection is per se harassment, you've now eliminated the consent requirement. I'm not necessarily opposed to that policy choice--it makes sense to me--but it is not one the law as written and commonly understood mandates.

And therein lies the mystery of this case. Was there some evidence of her flirting back that would have undermined a harassment claim? I wonder because there was a choice by her counsel to not pursue it and that would be the type of evidence that would dissuade me from doing so. I think the far more tricky (and sad thing) is that if woman felt compelled to somewhat play along in an effort to diffuse the situation in hopes it would end. Her efforts might make it difficult to pursue a harassment claim, but it is not a bar to it. Presumably she could explain her conduct and why she wrote the texts she did, etc. But regardless, there is something going on here that is not clear from the text of the opinion other than the representation that she did not feel harassed.

No matter how we cut it, the Doctor is scum and hopefully his business is suffering even if he escaped liability in this instance.
posted by dios at 9:26 AM on July 18, 2013 [2 favorites]


twoleftfeet: “There's no evidence of harassment. None. Not worth thinking about.”

Hm. Well, I guess I just thought that, when an employer tells his employee that she'll know her clothing is inappropriate when she sees a bulge in his pants, that constituted harassment, particularly if it's admitted that this is part of a pattern. Both of those things are acknowledged in the court's decision and don't seem to be disputed by any of the involved parties.

I guess you're saying you don't think that constitutes harassment? I can understand feeling that way, to be clear. As I said in my last comment above, I'm trying to argue here that sexual harassment is an act wholly apart from the feelings of the person being harassed. Some people disagree, and I do understand the idea that harassment hinges on the feelings of the harassed even if I believe that it doesn't.
posted by koeselitz at 9:28 AM on July 18, 2013


since there are people in this thread, and through out the discussion of this case in other places, who have said that in small businesses this is just the way it is and too bad for her that she had to lose her job but that the boss did nothing wrong

Where did that happen? I don't think I saw anybody defending the character of the boss here.
posted by amorphatist at 9:31 AM on July 18, 2013 [1 favorite]


we're not in court. we're on metafilter - so what can or cannot be found in court isn't the basis of what we can discuss.

But we're discussing a court decision and the gravamen of the discussion is whether or not the court decided the case correctly (hence the puerile and frankly embarrassing calls to set the court on fire etc.). I really don't see anybody here arguing that the dentist behaved well or that he is a good person or that he ought to have fired this woman: the only argument I see is people saying, on the one hand, that despite the fact that this dentist behaved abominably and is clearly a horrible person the court's decision was nonetheless correct as regards the laws. On the other side we have people saying, basically, that the court should have ignored the laws, ignored, indeed, the very terms of the case as it was brought before them and ruled on a largely hypothetical case that was not brought and as to which they had not heard any legal arguments nor seen all the relevant evidence. This strikes me as a dangerous and ill-considered position.

But if I've missed the contributions of people who are saying "everyone should have to right to fire people because they feel sexually attracted to them" then I join you in saying that no, that really shouldn't be a grounds for dismissal--even if, alas, it is clear that there is a ton of legal precedent saying that it is perfectly legal to do so.
posted by yoink at 9:34 AM on July 18, 2013 [4 favorites]


the boss did nothing wrong part is what i've seen in other places, hence why it was a comment about things said here and elsewhere. back when this first hit the news the conservative christian boards were all, "what a wonderful and faithful man for putting his marriage first!" - the oh this is just too bad and the way things go was you specifically so you should remember those comments. both viewpoints are problematic to me.
posted by nadawi at 9:35 AM on July 18, 2013


Where did that happen? I don't think I saw anybody defending the character of the boss here.

That may be expanding (perhaps a little uncharitably) on remarks that one ought not be legally obligated to keep on an ex as an employee after a breakup, from an exchange way upthread. Which is a different (and hypothetical) context, anyway.
posted by snuffleupagus at 9:37 AM on July 18, 2013


I guess you're saying you don't think that constitutes harassment?

It would depend entirely on context. If two people are, for example, in a consensual sexual relationship and regularly send flirtatious emails back and forth to each other and one of the emails had this content, that's clearly not harassment. If this is the 100th email that your creepy boss has sent you of this kind and you've never replied to a single one of them, that's pretty clearly harassment. If you look at most legal definitions of sexual harassment they involve elements of persistence--especially persistence in the face of clear signs that the attention is unwelcome. So you usually can't look at just one or two emails/texts/conversations and say "this is/is not sexual harassment" unless they involve some kind of "if you want that promotion you'll have to sleep with me" kind of quid pro quo.
posted by yoink at 9:40 AM on July 18, 2013 [2 favorites]


the boss did nothing wrong part is what i've seen in other places,

Oh ok, it wasn't entirely clear to me what was intended by your comment, thanks for clarifying.
posted by amorphatist at 9:43 AM on July 18, 2013


the boss did nothing wrong part is what i've seen in other places

Well "boo" to other places, then?

the oh this is just too bad and the way things go was you specifically so you should remember those comments


That's a pretty crappy summary of my position.
posted by yoink at 9:43 AM on July 18, 2013


i have to start quoting who i am responding to. yoink - they "you" in that comment is amorphatist, not you. i don't think it's a crappy summary so much as a near direct quote.

as far as Well "boo" to other places, then? - how these cases are seen by the greater public is of interest to me (and to others, i think) because laws aren't these things that are perfect and always applied (or made) correctly and fairly - they're informed by how people think of things (up to and including the judges) - so for some thinking this is a religious win is troubling to me, especially considering how that specific set of judges came to have that specific job.
posted by nadawi at 9:51 AM on July 18, 2013


The difficult thing, the really difficult thing, is to defend an opinion that you don't agree with. In this case, my personal feeling is that the dentist is an asshole and I wish he could be punished for it. But defending an opinion involves something bigger than personal feelings. It involves an overall awareness of the consequences of that opinion.

So, let's flip it around. Suppose we demand a ruling where a Supreme Court decides that the feelings that Person A has about Person B, sexual or otherwise, must be disregarded in employment decisions, even for small businesses. Then Bob, who keeps voicing his desire to hump all his female coworkers, can't be fired, despite the annoyance this brings to the workplace, because to do so would involve a sexual judgment. After all, who's to say what Bob can voice?
posted by twoleftfeet at 9:51 AM on July 18, 2013


Flip what around? What does that hypothetical have to do with anything we're talking about? There's no First Amendment issue in this case. Don't muddy the waters by injecting distractors.
posted by snuffleupagus at 9:56 AM on July 18, 2013 [2 favorites]


Or maybe I'm not getting it? I'm not sure I understand what this is proposing:

Then Bob, who keeps voicing his desire to hump all his female coworkers, can't be fired, despite the annoyance this brings to the workplace, because to do so would involve a sexual judgment.
posted by snuffleupagus at 9:58 AM on July 18, 2013


So, let's flip it around. Suppose we demand a ruling where a Supreme Court decides that the feelings that Person A has about Person B, sexual or otherwise, must be disregarded in employment decisions, even for small businesses. Then Bob, who keeps voicing his desire to hump all his female coworkers, can't be fired, despite the annoyance this brings to the workplace, because to do so would involve a sexual judgment. After all, who's to say what Bob can voice?

I don't see that, because Bob can be fired for creating a hostile working environment, can't he? I'm not actually sure that this situation is all that hard to address legislatively; in fact, all you need is a law that says you can't fire employees without showing good cause. It is not the court's job, however, to invent laws just because they think they'd be a good idea. Iowa is an at-will state and the court is bound to recognize that fact. It would have been illegal for the asshole dentist to fire this woman simply on the grounds of her gender, but it is also clear that this is not what he did. He fired her because he felt himself to be growing increasingly attracted to and emotionally involved with her. There oughta be a law that says that's not reasonable grounds for dismissal; unfortunately, in Iowa, there is no such law.
posted by yoink at 9:58 AM on July 18, 2013 [1 favorite]


He fired her because he felt himself to be growing increasingly attracted to and emotionally involved with her. There oughta be a law that says that's not reasonable grounds for dismissal; unfortunately, in Iowa, there is no such law.

yoink, do you really believe there should be such a law? That, in a generally at-will state such as Iowa, you would introduce an exception such that you cannot dismiss an employee whose presence is causing you emotional turmoil, if the turmoil is due to sexual attraction (only)?

What makes sexual attraction (as a source of emotional turmoil) special? Obviously this is where I come in and ask: what if the turmoil is due to, say, an employee's politics, e.g. if I'm a gay dentist and I discover that my hygienist is a determined homophobe? Or vice-versa et cetera.
posted by amorphatist at 10:09 AM on July 18, 2013 [1 favorite]


I actually don't think it should be legal to fire someone for any reason other than job performance or on-the-job behavior, myself.
posted by kyrademon at 10:12 AM on July 18, 2013 [9 favorites]


Flip what around?

The Case of the Misfired Metaphor. I was trying to say that if the Supreme Court decides that Person A cannot use his/her sexual feelings to determine the employment (or non-employment) of Person B, then if Person A believes that Person B is behaving in a sexually-explicit manner then Person A cannot fire Person B.

Here: A is the manager and B is Bob, who continually makes lewd comments about humping his female coworkers.

You could probably come up with better flips, but the point is that a Supreme Court influences The Law, and that hasty and simplistic Laws have a way of backfiring.
posted by twoleftfeet at 10:25 AM on July 18, 2013


But in that situation, it's not A's sexual feelings towards B that cause the firing - it's the creation of a hostile workplace for employees C, D, & E. The first if-then isn't valid.
posted by Lemurrhea at 10:42 AM on July 18, 2013 [2 favorites]


that flip around isn't even recognizable as a comparison to this case. this isn't about feelings. it's about things that the boss actually said during employment and during termination of employment.
posted by nadawi at 10:48 AM on July 18, 2013 [1 favorite]


His WIFE learned about the text messages. How much do you want to bet the firing happened because the wife wanted it to happen?

No. The firing happened because the husband, also the boss, decided to fire his assistant. His wife was not (as far as I know) an owner and did not fire her husband's assistant. She asked, sure, and their pastor advised, but the actual firing was not her decision. This isn't some weird catfight story.

That, in a generally at-will state such as Iowa, you would introduce an exception such that you cannot dismiss an employee whose presence is causing you emotional turmoil, if the turmoil is due to sexual attraction (only)?


In general, anything that prevents you from firing someone for reasons that aren't "they're not capable of doing their job" or "we don't need anyone at all in this position anymore" is a good thing, I think.
posted by jeather at 10:54 AM on July 18, 2013


it's the creation of a hostile workplace for employees C, D, & E.

Anny is the manager. Bob, her employee, arrives every morning, has a cup of coffee, and tells Anny that he wants to hump her. (Through suggestive body language, mind you.)

Anny cannot fire Bob.
posted by twoleftfeet at 10:56 AM on July 18, 2013


It just so happens that one of my close friends is an expert on such comparisons.
posted by snuffleupagus at 11:00 AM on July 18, 2013


The Sesame Street Defense is not usually admissible in court.

Arguing for (the clearly reprehensible) Bob, it is clear that Anny interpreted Bob's ordinary body movements in a lewd and lascivious manner, projecting her carnal desires upon his innocent self, leading to wrongful termination.

And since The Law applies to even the smallest of businesses, and Anny and Bob are the only employees, Anny should have no choice but to endure her employee.
posted by twoleftfeet at 11:05 AM on July 18, 2013 [1 favorite]


I find the following odd. From the decision:
The Eighth Circuit first noted the considerable body of authority that “ ‘sexual favoritism,’ where one employee was treated more favorably than members of the opposite sex because of a consensual relationship with the boss,” does not violate Title VII. Id. at 908–909. The court distilled that law as follows: “[T]he principle that emerges from the above cases is that absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.”

The Eighth Circuit believed these sexual favoritism precedents were relevant. The court’s unstated reasoning was that if a specific instance of sexual favoritism does not constitute gender discrimination, treating an employee unfavorably because of such a relationship does not violate the law either.

(emphasis mine)
And it goes on to apply this to a case where a woman was fired because of her behavior with the boss's son, saying "The ultimate basis for Tenge’s dismissal was not her sex, it was Scott’s desire to allay his wife’s concerns over Tenge’s admitted sexual behavior with him."

So in these examples they take pains to stress the employee's sexual conduct or behavior, specifically, which was not the situation here, since the employee who was treated unfavorably in this case (Nelson), wasn't treated unfavorably because of her sexual conduct, but because of the boss's own (possible future) sexual conduct. Not quite the same thing there.
posted by taz at 11:07 AM on July 18, 2013 [2 favorites]


And while the result is unsatisfactory for this woman, I'm not sure how the Court could have fashioned a favorable remedy without creating far-reaching precedent. The danger is often that "hard cases make bad law."

Dios, I've seen the phrase "hard cases make bad law" many times, but before your interesting comment never understood that "hard cases" referred not to complex cases difficult to grasp, but to situations where one party has suffered a severe hardship which may excite judges or juries to a pitch of sympathy that leads them to bend the law to find a remedy where none truly exists under the law.
posted by jamjam at 11:08 AM on July 18, 2013


Who do you think wrote and voted for at-will employment laws, consequences be damned?

The same nutjobs or are very selective about the nanny-state. The same one's who would cry a river when the State steps in and offers support programs but who would say nothing about this, when the State steps in and takes the responsibility of an individual in a professional environment away from them because they can't handle it. Coddle one, not the other.
posted by juiceCake at 11:11 AM on July 18, 2013


The Eighth Circuit believed these sexual favoritism precedents were relevant. The court’s unstated reasoning was that if a specific instance of sexual favoritism does not constitute gender discrimination, treating an employee unfavorably because of such a relationship does not violate the law either.

There's something deep there about how people often marry people they meet at work. And how that's a natural thing. But when it gets formalized you can take it a different way.
posted by twoleftfeet at 11:15 AM on July 18, 2013 [2 favorites]


The Sesame Street Defense is not usually admissible in court.

The point is that the straw man you're erecting and knocking down isn't even relevant, it's a false comparison that would ignore the facts to accomplish this supposed 'flip.' The reversal fails. Once you admit that Reprehensible Bob's claim is in bad faith it evaporates. You can't offer that as equivalent to this case. In fact, it's potentially offensive to do so.
posted by snuffleupagus at 11:16 AM on July 18, 2013 [1 favorite]


taz, I think the quotation makes sense. I agree that it's not the same scenario due to the role or lack thereof of the employee, but in any event it's not specifically a gender/sex/anything Title VII would cover.

In this case, it's not a gender/sex/etc thing, because if the dentist were attracted to men and the employee was a man, the outcome would (and should!) be the same. Now in my opinion the outcome should be "too bad, can't fire them for free", but it's on sexual harassment rather than equality grounds.
posted by Lemurrhea at 11:19 AM on July 18, 2013


So in these examples take pains to stress the employee's sexual conduct or behavior, specifically, which was not the situation here, since the employee who was treated unfavorably in this case (Nelson), wasn't treated unfavorably because of her sexual conduct, but because of the boss's own (possible future) sexual conduct. Not quite the same thing there.

Taz, it relates to the extent that neither the employee's sexual conduct nor the employer's sexual feelings are the same thing as an employee's gender.

Generally speaking, gender discrimination is when you improperly discriminate on the basis of gender, e.g. "you were fired because I'd rather work with a dude". It's critical to note that the employee in this case was replaced with another woman. Whether that was a cynical ploy or just the roll of the dice, that was a torpedo in the side of the discrimination suit. Women are women, whether or not the employer personally finds them attractive. Since a sexual harassment suit was not in play, the employee was stuck with trying to argue that she was fired for being a woman...only to be replaced by another woman.

I'm not defending the dentist or his actions, but this suit would have been pretty rough to argue.

...

Now in my opinion the outcome should be "too bad, can't fire them for free", but it's on sexual harassment rather than equality grounds.

Right, but for reasons to which we are not privy, there was no sexual harassment suit. The court can't just turn it into one. It would be a nightmare if appellate courts could spontaneously start, argue, and rule on causes of action. That's some Judge Dredd shit right there.
posted by Sticherbeast at 11:24 AM on July 18, 2013 [4 favorites]


In fact, it's potentially offensive to do so.

It's a thought exercise. Any potential Law, or interpretation of Law, should be examined from many points of view, including points of view with which we may not agree. Failure to do so results in poorly conceived Laws. Fear of offense does not excuse the necessity of this exercise.
posted by twoleftfeet at 11:24 AM on July 18, 2013 [1 favorite]


Specious arguments, already unworthy by nature, are particularly inappropriate when they would offend the real social interests that are bound up in issues like this and the real human beings who hold them, whether you are comfortable with that or not.
posted by snuffleupagus at 11:27 AM on July 18, 2013


me: Now in my opinion the outcome should be "too bad, can't fire them for free", but it's on sexual harassment rather than equality grounds.

Sticherbeast: Right, but for reasons to which we are not privy, there was no sexual harassment suit. The court can't just turn it into one. It would be a nightmare if appellate courts could spontaneously start, argue, and rule on causes of action. That's some Judge Dredd shit right there.


Oh, most definitely. Didn't mean to imply anything of the sort, poor wording.
posted by Lemurrhea at 11:30 AM on July 18, 2013 [2 favorites]


I would like to see anyone googling 'Dr. James Knight, dentist' have his new title 'Dr. Bulgypants McInappropriate' come in at the top of their list.
posted by BlueHorse at 11:30 AM on July 18, 2013 [1 favorite]


In my european country you almost always have to attach an ID photo to your CV if you apply for a job. And I guess HR people are also discriminating...
posted by bdz at 11:36 AM on July 18, 2013


Specious arguments, already unworthy by nature, are particularly inappropriate when they would offend the real social interests that are bound up in issues like this and the real human beings who hold them, whether you are comfortable with that or not.

I don't see how the argument can be called "specious". If you believe that the Iowa Supreme court was mistaken, and you have solid grounds for your belief, you can present those grounds. If I don't think they were mistaken, particularly because an erroneous precedent in this case could have damaging effects, then I am free to say so. It's my opinion, and if I express it honorably here there should be no risk of offense.
posted by twoleftfeet at 11:38 AM on July 18, 2013


In my european country you almost always have to attach an ID photo to your CV if you apply for a job. And I guess HR people are also discriminating...

I've read some interesting stuff (maybe via mefi?) on the effects of increasingly standard use of photos in job applications. But that topic seems like it could support a entire thread of its own.
posted by snuffleupagus at 11:40 AM on July 18, 2013


if you can't tolerate some of us trying to understand what laws went into creating this crappy situation, which is a necessary step for understanding how we can fix them to prevent situations like this in the future, then I can't tolerate your GRAR.

That's one reason to insist on a narrow focus of the law. Another reason some have is to avoid understanding and redressing the broader systemic problems (sexism, racism etc.), and I believe this is the position to which ishrinkmajeans was responding. Asking people to confront sexism isn't GRAR, though it is often wrongly described as GRAR by those who benefit from the continued existence of sexism and other systemic injustices. One can acknowledge the ostensible legal correctness of this ruling while also condemning the context of sexism in which it was written.
posted by audi alteram partem at 11:40 AM on July 18, 2013 [1 favorite]


One the one hand, I think this is almost certainly a case of sexual discrimination, because I think that, if the boss was gay and the employee was a man, there's no way he would have been fired. The boss's feelings about how he was a good employee, had kids to feed, etc., would have taken precedence over his attraction, and he would have dealt with it and kept him on. But that didn't happen in this case, because -- completely separate from issues of sexual attraction itself -- it's a part of our culture to believe that women exist for sex, and sexual considerations having to do with them completely overwhelm any other considerations having to do with them.

Unfortunately, however, there's no way that line of thought would hold up in court, because at the moment it's just a conjecture of mine. I think what's going on is: As it stands, there's ample precedent for sex discrimination cases involving, say, a pretext of dismissal for poor performance, where there's a gendered difference in the way employers react to the specific behavior cited -- say, when a woman is fired for making a certain kind of minor mistake when many men have made the exact same mistake and none of them have ever been fired for it. Essentially, courts know what it looks like when someone is being fired supposedly for a type of poor performance but actually for that type of performance and being female. But, this case being so unusual, there's no background of cases demonstrating that there's a gendered difference in the way employers react to attraction to an employee. We can't say with security that we what it looks like when somebody is being fired supposedly for being attractive to the employer but actually for being attractive to the employer and being female. I think if there were a large stock of cases of both types, it would probably bear out my conjecture. But there isn't.
posted by ostro at 11:46 AM on July 18, 2013


It's my opinion, and if I express it honorably here there should be no risk of offense.

Oh, I don't doubt your honesty at all, or your honorable intentions. And I'm not characterizing you, personally, but the argument itself. I see the comparisons you're inventing as doing more to distort the issues than anything else; and I'm not sure why you're offering these scenarios as the Iowa Court decided the case the way you think it should've come out, and did so in a properly narrow fashion without resorting to your substitution of some bad-faith skeeve for the female plaintiff who is a real person, to make some point about the pernicious aspects of law relating to gender that's on your agenda.

The potential offensiveness-- and that may not be quite the right word--comes not from the person, but the argument as offered -- the way you're making it and the context you're ignoring beating this drum.
posted by snuffleupagus at 11:49 AM on July 18, 2013 [1 favorite]


To be clear, this is the hypo that you think should be compared to the real life plaintiff's situation:

Anny is the manager. Bob, her employee, arrives every morning, has a cup of coffee, and tells Anny that he wants to hump her.

You don't see how that fails to be a valid comparison to this dentist's decision to fire his employee because he can't control the arousal he feels in her presence? And how it might rankle women that this is, in fact, acceptable under an at-will statute or contract? Even if that was the correct decision here?

The plain reversal would be to simply make the dentist a woman with a jealous husband, and the employee a man. Which would change no one's mind, from what I've read here -- not the court's and those who agree with it (reluctantly or otherwise), and not those who are opposed to the decision because they are opposed to at-will employment laws (or feel that those laws should give way to other more fundamental interests).
posted by snuffleupagus at 12:13 PM on July 18, 2013


See, here is where two conflicting principles collide and collide hard. The proper Christian response to lust is to flee temptation. The proper Christian thing response to someone who is a good employee is to keep them. Oy.

You would think a man could behave himself with his WIFE working in the practice, though. Ultimately he is the one that created the problem to start with. If the employee was dressing inappropriately they should have addressed that together with her, and if she refused to comply then sterner measures could have been taken.
posted by St. Alia of the Bunnies at 12:15 PM on July 18, 2013


The plain reversal would be to simply make the dentist a woman with a jealous husband, and the employee a man. Which would change no one's mind, from what I've read here -- not the court's and those who agree with it (reluctantly or otherwise), and not those who are opposed to the decision because they are opposed to at-will employment laws (or feel that those laws should give way to other more fundamental interests).

The comparison was made. Some people here deny that, if you reverse the genders like that, the situation could ever occur. "a female boss wouldn't fire her male employee for making her panties damp" and such.
posted by kafziel at 12:20 PM on July 18, 2013


Which seems questionable to me (I don't see why not), but at any rate that's the direct comparison. Not this thing where we invent a predatory male employee and victimized female employer to show how a different decision would be Dangerous and Bad.

A different decision would indeed be Dangerous and Bad, but for the reasons of procedure, jurisdiction and bad precedent pointed out above.
posted by snuffleupagus at 12:24 PM on July 18, 2013


To be clear, this is the hypo that you think should be compared to the real life plaintiff's situation:

Anny is the manager. Bob, her employee, arrives every morning, has a cup of coffee, and tells Anny that he wants to hump her.


You left out the part about he was telling her this with suggestive body language. The idea is that it's really hard, in general, to tell how arousal happens. If Anny perceives arousing behavior is it due to Anny or to Bob? I'm not talking about this particular case, and in some sense, ultimately, the Supreme Court isn't either.
posted by twoleftfeet at 12:31 PM on July 18, 2013


You stated it as a fact. We don't have to guess: he tells Amy he wants to hump her, via his body language. The implication was: ladies, you have to be OK with this decision, because at-will employment protects you from the spectre of this rapey dude I just invented.
posted by snuffleupagus at 12:33 PM on July 18, 2013


And that it is somehow the same case, doctrinally.
posted by snuffleupagus at 12:34 PM on July 18, 2013


We can quibble over the word "tell". If red sky at night "tells" me that weather will be good tomorrow, who did the "telling"?

When you do a flip you usually try to stick obviously objectionable characters in place of the obviously unobjectionable ones; I'm not inventing "rapey dudes" for no reason.
posted by twoleftfeet at 12:39 PM on July 18, 2013


OK, maybe I'm reading more into your position then you intend. Here's how I'm understanding it:

without at-will employment your Anny cannot fire Bob for his subtle but persistent inappropriate conduct, because despite our hypothetical fact that he is harassing her, which is assumed, because it was nonverbal she will face potential liability for his termination because she will have difficult proving cause. Is that right?
posted by snuffleupagus at 12:47 PM on July 18, 2013


Yes. That's right. It's pretty hard to prove that someone became aroused without someone else provoking arousal.

Not talking about this particular case, of course, because 247 comments in I'm pretty sure nobody is talking about the particulars of some dentist in Iowa.
posted by twoleftfeet at 12:54 PM on July 18, 2013


Yeah wait what are we talking bout here?
posted by MisantropicPainforest at 12:55 PM on July 18, 2013 [1 favorite]


Yes. That's right. It's pretty hard to prove that someone became aroused without someone else provoking arousal.

The problem, in that case, is that it is the reversal of a different case than the one that was decided.

It is, in fact, a reversal of a case in which the woman in the Plaintiff's position ACTUALLY DID act inappropriately towards her employer, and is bringing a claim in bad faith.

Do you understand how that might be an....unhelpful, comparison, even for the sake of argument? And minimizes the harm that the law does admit goes unremedied here, but is allowed to do so on a balancing of the interests?

I'm sure that wasn't your intention in proposing it. That's my objection to it, played all the way out.
posted by snuffleupagus at 12:56 PM on July 18, 2013


Not talking about this particular case, of course, because 247 comments in I'm pretty sure nobody is talking about the particulars of some dentist in Iowa.

congratulations! you managed to derail the entire thread like you've been working on from the beginning.
posted by nadawi at 12:57 PM on July 18, 2013 [7 favorites]


[Folks, maybe leave the metacommentary out of this thread but also try to talk about the topic of the thread and not get into the weeds with made up hypotheticals? Thanks.]
posted by jessamyn at 1:12 PM on July 18, 2013


t is, in fact, a reversal of a case in which the woman in the Plaintiff's position ACTUALLY DID act inappropriately towards her employer, and is bringing a claim in bad faith.

The flip isn't about switching genders, it's about switching actors. When Person A does something and Person B sees it, two things happen, not one. In court, we can't assume a priori that Person A did something divorced from the fact that Person B reported it. I'm sorry if this isn't clear.

finally at the bottom of the thread gets all wide eyed about why people aren't discussing the original topic

The point was that the original topic isn't about some dentist in Iowa but rather more general principles, and how Law is interpreted in some particular State. This is usually the case with Supreme Court rulings.
posted by twoleftfeet at 1:16 PM on July 18, 2013


The flip isn't about switching genders, it's about switching actors. When Person A does something and Person B sees it, two things happen, not one. In court, we can't assume a priori that Person A did something divorced from the fact that Person B reported it. I'm sorry if this isn't clear.

This would be news to all of my law professors. I'm sure they'd be surprised to hear they've been going about their jobs incorrectly. Hypothetical facts are proposed as facts. Problems of proof are just that. And they are resolved by the rules of evidence. The rules regarding hearsay, in the area you seem to be pointing to.
posted by snuffleupagus at 1:19 PM on July 18, 2013


This would be news to all of my law professors.

Really? Why don't you ask them? I would be happy to be corrected. It would be nice if in court we could always determine who did what, without adversarial rebuttal.
posted by twoleftfeet at 1:27 PM on July 18, 2013


[twoleftfeet, could you maybe give this thread a rest for a bit and come back in a while? ]
posted by jessamyn at 1:28 PM on July 18, 2013


I actually don't think it should be legal to fire someone for any reason other than job performance or on-the-job behavior, myself.

Unions are pretty good for this. Very hard to fire someone without cause.
posted by smackfu at 1:29 PM on July 18, 2013


Really? Why don't you ask them? I would be happy to be corrected. It would be nice if in court we could always determine who did what, without adversarial rebuttal.

That's what the hearsay rule protects. At least in one popular view. Courts find facts--they don't invent them, post hoc. Anyway this is truly far afield, and I'm lost as to what you're driving at.
posted by snuffleupagus at 1:30 PM on July 18, 2013


It's pretty hard to prove that someone became aroused without someone else provoking arousal.

Re-railing the thread, this is nonsense, and it keys into part of what's so off-putting about the (real) case.

The mere fact that the employer found the employee attractive was the grounds for termination. Nothing the employee actually did was inappropriate, or even really volitional. Nothing about the case whatsoever suggests that the employee was willfully "vamping" in order to appeal to her employer. She was just generally attractive, through no "fault" of her own.

Her termination was not technically gender discrimination, within the letter of the law as it stands. As I said upthread, the fact that she was promptly replaced with another woman does quite a lot of damage to that claim. Women are women. The dentist is not legally obligated to only hire women he finds attractive.

However, what remains is a universe in which women still face extra scrutiny for how they appear and how they interact with heterosexual males. There are very real (and very capricious) consequences for the mere fact of a woman's existence. If women don't look "good" enough, they're frumpy or unprofessional; in this case, she looked too "good", and so, to this dentist, she was some sort of unemployable, involuntary Jezebel.

Kind of reminds me of Hitchcock and Tippi Hedren. Except, you know, in a dentist's office.
posted by Sticherbeast at 1:34 PM on July 18, 2013 [9 favorites]


So how exactly is gender protected in Iowa? If you can be fired for something that is related to you gender, how is that protected, but being fired because 'this office doesn't hire women' isn't protected?
posted by MisantropicPainforest at 1:39 PM on July 18, 2013


It might be easier to conceive of it as what's prohibited. Gender based hiring, firing etc. is prohibited when it is based purely on gender and meets the elements of discrimination under either state or Federal law (depending on how you bring the claim).

The distinction here is that this was basically a personality conflict, one that arose in sexist circumstances, and the lack of remedy for which tends to perpetuate that sexism, but that doesn't rise to legally cognizable discrimination. In a sense, this particular incident was too personal. She wasn't fired because she was a woman, she was fired because she was this woman. Which is, after all, what at-will termination without cause allows.
posted by snuffleupagus at 1:45 PM on July 18, 2013 [6 favorites]


Great, that helps a lot.
posted by MisantropicPainforest at 1:51 PM on July 18, 2013


Adding to what snuffleupagus said: it depends. If this dentist had frequent turnover for his female employees, in contrast to the turnover for his male employees, and if it was clear that this turnover was in significant part due to his eventually finding each female employee to be unemployably attractive, then that would be one thing. It wouldn't be a slam dunk, but it would be a pattern of discriminatory termination practices.

However, this case appeared to have occurred in relative isolation - this woman was The Woman - and without more evidence, we can't just infer that he would have treated every female employee this way.
posted by Sticherbeast at 1:52 PM on July 18, 2013 [2 favorites]


Yeah, I don't like this result, but I think that's because its nuances reflect a lot of the shitty/subtle things about living in a sexist culture. I can understand that some legal decisions are what they are, due to how hard it is to use words and rules to produce things like truth and justice. That's fine. If there's any chance this particular ruling could cause harm to more employees, I would not be as fine with that.

"Most disturbingly, the Court described grossly inappropriate, sexually harassing comments as 'banter' that the parties both 'enjoyed.' In reality, there was zero evidence remotely suggesting that Knight's sexually offensive comments were "consensual," 'enjoyable,' or 'banter.' This suggesstion is itself inappropriate and sexually offensive." (from Nelson's attorneys' second petition for re-hearing)

Yikes.
posted by gobliiin at 2:45 PM on July 18, 2013 [4 favorites]


Thank god I have tenure.
posted by anothermug at 4:17 PM on July 18, 2013


I was a bit worried about being fired for being too attractive, but today's haircut definitely solved that problem.
posted by 4ster at 4:57 PM on July 18, 2013 [7 favorites]


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