Iowa S. Ct.: Upon review, firing the attractive female was not sex discrimination

So, by now, all of you must be familiar with the case in Iowa — I’ve blogged the heck out of it here and here — where the male dentist fired the attractive female hygienist, ostensibly because his wife was concerned that the hygienist’s continued employment might affect their marriage and because the dentist was concerned that he may eventually shag her.

Late last year, the Iowa Supreme Court unanimously held (here) that there is no sex discrimination if a male employer terminates 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.

Then, a few weeks ago, and after a lot of public scrutiny, the high court agreed to reconsider its unanimous ruling, which it did with this new opinion issued on Friday. 

Second verse same as the first.

The reissued opinion, which replaces the original, looks very similar. Indeed, it too concludes that there was no sex discrimination. But this time around, it underscores that the plaintiff only brought a claim for sex discrimination, rather than one for sexual harassment, implying that the latter may have presented a more viable claim — provided of course that the plaintiff found the defendant’s behavior to be unwanted or offensive, which, apparently, she didn’t.

Except for the addition of a head-scratching concurring opinion.

Another difference this time around is the addition of a concurring opinion in which three of the Iowa justices joined. This concurrence, which is nearly as long as the 18-page opinion of the majority of the court, ultimately concludes that that “[w]hat has emerged from this complex area of the law is the general legal principle that an adverse employment consequence experienced by an employee because of a voluntary, romantic relationship does not form the basis of a sex-discrimination suit.”

I agree with this conclusion. Yet, I struggle with how it fits with the facts of this case.

On the one have you have the defendant who admits texting the plaintiff lewd comments about her tight clothing, the relative infrequency of her sexual activity, and an inquiry about how often she experienced orgasms. The concurrence acknowledged that defendant’s comments that would “commonly be viewed as inappropriate in most any setting and, for sure, beyond the reasonable parameters of workplace interaction.”

Then you have the plaintiff, to whom the concurrence attributes what appears to be an out-of-context statement about how the defendant was the reason she continued to work at the office. Then, she “also acknowledged she maintained a closer relationship with Dr. Knight than he maintained with the other employees in the office.” Indeed, the only evidence of any reciprocation from the plaintiff is another employee’s opinion that the plaintiff was flirting with the defendant. The plaintiff, herself, argued that the sexual attraction her employer developed for her, which was the reason for her termination, was his creation and not the result of a personal relationship she maintained with him.

So, let’s call a spade a spade and just say that Dr. Knight fired the plaintiff, not because of anything she did to lead him on, but because he and his wife were concerned that he would end up trying to screw her.

Yet, somehow the concurrence construes the facts as “an undeniable part of the consensual personal relationship enjoyed by Nelson and Dr. Knight.” 

Consensual relationship or not, the firing was not based on any animus that Dr. Knight had against women generally. 

Indeed, he replaced the plaintiff with another woman. And there was nothing to suggest a pattern of mistreating women. Therefore, I agree with the court’s conclusion that the plaintiff’s sex discrimination claims should fail here.

What do you think? Did the court ultimately get it right? Let me know in the comments below…