The question is not before us of whether it would be sex discrimination if Tenge had been terminated because Lori perceived her as a threat to her marriage but there was no evidence that she had engaged in any sexually suggestive conduct. Tenge v. Phillips Modern Ag. Co., 446 F.3d 903 (8th Cir. 2006).
So the question we must answer is the one left open in Tenge— whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction. Nelson v. James H. Knight DDS, P.C. (Iowa 2012).
In Nelson, the Supreme Court of Iowa answered this question in the affirmative.
You can read the facts of the Nelson case in this article from CNN. Basically, a dentist fired a female employee because (1) his wife thought that the employee was a threat to their marriage; and (2) he thought that the employee was an “irresistible attraction.” The dentist only employed female employees and replaced the fired employee with another female employee. There was no allegation of flirtatious conduct by the fired employee, who was married.
From the opinion of the Supreme Court of Iowa, here was the crux of the legal issue:
Nelson advances a straightforward “but for” argument: I would not have been terminated “but for” my gender. See, e.g., Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 213, 222 (3d Cir. 2000) (affirming a jury verdict in a Title VII case because the charge, taken as a whole, adequately informed the jury that sex had to be a but-for cause of the adverse employment action). Dr. Knight responds that Nelson was terminated not because of her sex—after all, he only employs women— but because of the nature of their relationship and the perceived threat to Dr. Knight’s marriage. Yet Nelson rejoins that neither the relationship nor the alleged threat would have existed if she had not been a woman.
The court sided with Dr. Knight. Why? According to the court,
Nelson’s viewpoint would allow any termination decision related to a consensual relationship to be challenged as a discriminatory action because the employee could argue the relationship would not have existed but for her or his gender. This logic would contradict federal caselaw to the effect that adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable under Title VII.
The court did note, but ultimately reject, a slippery slope argument by Nelson:
Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.
-Colin Miller
