Nyemaster Goode, P.C.

Iowa Supreme Court Reaffirms Termination of Dental Hygienist Was Not Discriminatory

By Amanda Atherton

Earlier today, the Iowa Supreme Court issued a new opinion reaffirming its decision in Nelson v. James H. Knight, DDS, P.C., with a new special concurrence written by Chief Justice Mark Cady, joined by Justices Wiggins and Hecht. This comes after the Court’s withdrawal of its prior opinion in the case, which was issued in December of last year. See a discussion of that opinion here. The case gained significant media attention and was dubbed the “irresistible attraction” case due to dentist James Knight’s termination of dental hygienist Melissa Nelson because Knight and his wife viewed Nelson as a threat to their marriage.

The bulk of the majority opinion remains the same, with a few interesting changes. The Court replaces the phrase “terminated because the boss views the employee as an irresistible attraction”—the phrase picked up by the media—with the phrase “terminated because the boss’s spouse views the relationship between the boss and the employee as a threat to her marriage.” It also adds a discussion of a recent Eighth Circuit gender stereotyping case in which a female employee lost her hotel clerk job because she did not have the right “Midwestern girl look” and the employer’s summary judgment motion was denied. The Court distinguished that case from Nelson’s, explaining the plaintiff clerk was terminated because she did not conform to a particular gender stereotype and not because of any relationship she had with her employer.

The majority also adds, in its iteration of the relevant facts, that both Nelson and Knight initiated texting and that Nelson once texted Knight that the only reason she kept her job was because of him. This heightens the emphasis on Nelson’s role; as noted, the consensual nature of the relationship is the crux of the Court’s rationale that the decision was based on interpersonal feelings and interactions rather than on sex and, as such, the behavior of both parties was critical to the Court’s rationale.

The new concurrence first notes that “challenges to defining sex discrimination in the workplace have, at times, created controversy and divisiveness, especially when decisions by courts are not fully explained or when court decisions are not fairly read and interpreted or accepted.” It describes the difficulties of defining sex discrimination in employment, noting the statute offers no further guidance than that “discrimination ‘because of . . . sex’ is illegal.” It then delves into a discussion of the legislative history of Title VII and ultimately stresses that the civil rights statutes protect employees from discrimination based on gender, not sexual affiliations or sexual activity.

The concurrence responds to Nelson’s argument that she did nothing wrong except “exist in the workplace as a woman,” explaining that an employer cannot make employment decisions based on a person’s attractiveness or lack thereof because such decisions would be based on gender attributes. Nelson’s termination, on the other hand, was based on “the activities of her consensual personal relationship with her employer.” The concurrence points out various examples in the record supporting the distinction: Nelson and Knight had a close relationship, they interacted outside of work, Knight frequently made sexually suggestive comments to Nelson, and Nelson was a willing party to this behavior. In essence, it explains that Nelson did not just “exist in the workplace as a woman.” Rather, she was a willing participant in the relationship with Knight, and the effects of that relationship on Knight and his wife, rather than Nelson’s “status as a woman,” were what led to her termination.

The concurrence explains that the consensual nature of the relationship was “pivotal” to the Court’s analysis, suggesting that, if the relationship had not been consensual, Nelson could have potentially established a claim for sexual harassment. Both the concurrence and the majority opinion repeatedly note that Nelson did not bring such a claim. Indeed, the facts do not appear to support a harassment claim, since Nelson apparently did not consider Knight’s conduct toward her unwelcome.

Interestingly, the concurring opinion notes several times the heterosexual orientation of all parties involved. This raises the possibility that additional support for the Court’s decision lies in the fact that the same situation could have arisen with a male employee in the context of a homosexual relationship, illustrating that the issue is truly about the relationship between the parties rather than gender.

The bottom line remains that an employer cannot discriminate on the basis of sex. In response to Nelson’s “slippery slope” argument—what if Knight terminated multiple women due to the nature of his relationships with them?—the majority opinion states that such a situation could create an inference of sex discrimination, but is steadfast in its holding that termination on the basis of an interpersonal relationship is not inherently discriminatory.

The Court’s decision today does not change the outcome of Nelson’s case—it is dismissed. The Court merely supplemented and clarified its position on what constitutes discrimination based on sex within the meaning of the Iowa Civil Rights Act and reinforced that unwelcome workplace harassment is still unlawful.


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