Employment law plays against the backdrop of employment at-will. Thus, unless there is an improper motive for termination of employment, such as a bar against discrimination of any specified sort, an employee must depart when fired.

This principle, embodied in Title VII of the Civil Rights Act of 1964 and similar enactments in states such as Iowa, have provided a bedrock level of employee rights against “unjust” termination for nearly 60 years.

Title VII and its state analogues prohibit employment discrimination based on race, color, religion, sex and national origin. The states explicitly or implicitly track federal court decisions on Title VII and therefore some national consensus on discriminatory termination has been reached.

Nonetheless, it is possible to present a novel discriminatory termination case. The Iowa Supreme Court, in Nelson v. Knight, reached a result which attracted a certain degree of notoriety.

In 1999, Knight hired Nelson to work as a dental assistant and she performed in that capacity for 10 1/2 years.

However, complications in their employment relationship began during the last year and a half of her employment, Knight complained to Nelson that her clothing was too tight and revealing and “distracting,” and she donned a lab coat whenever this complaint was made.

During the last six months or so of Nelson’s employment, Knight and Nelson started texting each other on both work and personal matters, such as their children’s activities, outside the workplace. Both parties initiated texting and neither objected to the other’s texting.

Nelson considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him.

Knight once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. Other texts discussed Nelson’s wearing of tight pants and the infrequency of her sex life.

As to the latter, Knight responded to her, “[T]hat’s like having a Lamborghini in the garage and never driving it.”

Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text.

In late 2009, Knight took his children to Colorado for Christmas. Knight’s wife learned that the two were texting each other during that time.

When Knight returned home, his wife demanded that he terminate Nelson’s employment. Both of them consulted with the senior pastor of their church, who agreed with the wife.

Knight’s wife regarded Nelson as a threat to her marriage and cited the texting, Nelson’s tight clothing, her flirting with Knight, her coldness toward her, and Nelson’s ongoing criticism of another dental assistant. In addition, she disliked the fact that Nelson liked to hang around after work when Nelson and Knight would be alone.

On January 4, 2010, Knight called Nelson into his office. He had arranged for another pastor from the church to be present as an observer. Knight, reading from a prepared statement, told Nelson he was firing her.

Knight stated that their relationship had become a detriment to Knight’s family and that for the best interests of both Knight and his family and Nelson and her family, the two of them should not work together.

Knight later spoke with Nelson’s husband and told him that Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he ever had.

However, Knight worried he was getting too personally attached to her. Nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson filed a complaint with the Iowa Civil Rights Commission and received a letter to sue. In her complaint, Nelson alleged that Knight discriminated against her on the basis of sex. Nelson argued that her gender was a motivating factor in her termination because she would not have lost her job if she had been a man.

Summary judgment for Knight was granted in the trial court. It held Nelson was fired not because of her gender but because she was a threat to the marriage of Knight.

The Supreme Court upheld the judgment. It began with the cardinal rule than an employer engages in unlawful sex discrimination when the employer takes adverse employment action against an employee and sex is a motivating factor in the employer’s decision.

However, the majority was quick to point out 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. Any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.
However, the precendential case left open the very question posed by Nelson. What if the female employee had not engaged in any sexually suggestive conduct and yet was perceived as a threat to the employer’s marriage? Nelson argued that she was blameless except for being female.

The majority opinion answers that the lack of blame on the part of the discharged employee is a question of fairness, not of discrimination.

“Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

Characterizing Knight as an employer who had to choose placating his wife or an employee to keep, the majority found that the dismissal was not gender but simply favoritism for a close relative.

Indeed, the majority drew a distinction between an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and a decision based on gender itself.

In the former instance, the decision is driven entirely by individual feelings and emotions regarding a specific person. “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Ultimately, the majority concluded that Nelson’s termination was based on the animus of Knight’s wife and that this was not discrimination.

The majority’s approach is, as an instrument of persuasion, insensitive. A plaintiff who appears blameless is told that her discharge is unfair can hardly be less than outraged when told so bluntly that the law can do nothing for her.

It is also salt in her wounds to observe, as the majority did, that she might done better if she had pleaded sexual harassment. Neither the plaintiff or her attorneys should praise the majority’s tact in turning her away without remedy.

By contrast, the Chief Justice and two others concurred and provided more solace for Nelson, but no relief. He began by noting that the civil rights law prohibit gender discrimination, not sexual relationships.

“[B]oth men and women are responsible for their own . . . responses to attributes of the sex of the other . . . “ The laws seek to protect a woman from discrimination based on her status as a woman, not on her consensual personal or sexual affiliations with her employer. Termination based on the latter is based on the conduct of the employer, not on her sex.

“No fault or blame is considered, only the practical reality of its presence in the workplace as a potential ingredient of adverse employment consequences.”

However, if a woman employee is terminated based on stereotypes related to characteristics of her gender, including attractiveness, sex discrimination would be in issue because the termination was motivated by the gender attribute. One can’t be fired for being too attractive or not attractive enough.

Therefore, Nelson stated a claim under the discrimination laws. In particular, some of the text interchanges were inappropriate and beyond workplace necessity. However, viewed as a whole, the relationship between Nelson and Knight was the cause for the termination, not Nelson’s status as a woman.

Ultimately, Nelson failed on summary judgment because she did not adduce enough facts to show her status as a woman was a motivation for termination. Indeed, “she used the same reasons to show the termination was discriminatory as . . . Knight used to show the discrimination was not discriminatory.”

The concurrence has aspects of splendid “bedside manner,” soothing rather than inflaming. Instead of denying Nelson any semblance of a cause of action, the concurring opinion gives her an opportunity to plead in a manner which accords with her obvious view of the facts.

Rather than harping on the competence of Nelson’s attorneys for not pleading sexual harassment, a long shot under the rather platonic facts of the case, the concurrence finds a clear tactical issue in the framing of the summary judgment.

This case is not a reverse Anna Karenina, Madam Bovary, or Lady Chatterley’s Lover. Even it were such, the mildly salacious facts and Victorian mores evidenced in this case can only elicit sympathy for an employee who, at worst, did no more than flirt.

Her failure to find a remedy should at least be cushioned by the observation implicit in the concurrence that her situation was one caused less by her personal failure than the limitations of the remedy and the barriers presented by summary judgment.