Tuesday, 1 January 2013

Too Attractive for Employment

Can you legally fire an employee for being ‘too attractive?’ If you’re an employer in Iowa it would appear that the answer is yes.

Following on the heels of Debrahlee Lorenzana and Lauren Odes, Melissa Nelson becomes the latest victim of being “too attractive” for employment.

As reported in the Ottawa Citizen:
A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa State Supreme Court ruled Friday.
The court ruled 7-0 that bosses can fire employees they see as an “irresistible attraction,” even if the employees have not engaged in flirtatious behaviour or otherwise done anything wrong. Such firings may be unfair, but they are not unlawful discrimination under the Iowa Civil Rights Act because they are motivated by feelings and emotions, not gender, Justice Edward Mansfield wrote.

Speaking to the absurd, the report goes on to note that the dentist’s attorney proclaimed the decision “a victory for family values” because Knight fired Melissa Nelson in the interest of saving his marriage, not because she was a woman. As is further related in the story:
Knight and Nelson — both married with children — started exchanging text messages, mostly about personal matters, such as their families. Knight’s wife, who also worked in the dental office, found out about the messages and demanded Nelson be fired. The Knights consulted with their pastor, who agreed that terminating Nelson was appropriate.

With respect to compensation the story relates that:
Knight fired Nelson and gave her one month’s severance. He later told Nelson’s husband that he worried he was getting too personally attached and feared he would eventually try to start an affair with her.


I will start by asking this rhetorical question, does anyone honestly believe that this dentist will now have his marriage “saved” because he sacked his long-term, devoted employee?

Second, and more genuinely are we as a society really going to allow “marriage saving” as a legitimate reason for an employee’s termination? Somehow I genuinely doubt that if the roles were reversed, (think Jennifer Aniston’s character in the movie Horrible Bosses) the reaction would have been the same.

Whether the court’s decision would have been the same is difficult to say. I know nothing about Iowa law and even less about the Iowa Civil Rights Act. That said, if Justice Edward Mansfield spoke true when he said that the termination was not unlawful because the decision to terminate was not based on gender, then the decision should be the same regardless of the gender of the parties involved.

What About Ontario?

As to whether such a case could happen in Ontario, the first answer is I guess that it could. People can do a lot of things, including things that are prohibited by law. As I often inform people, murder is illegal, but people still do it – the law only provides your remedy once something has occurred.

Wrongful Dismissal

So, what would happen if Ms. Nelson worked in Ontario? The first answer is that she would have received a lot more than one month’s severance. As is explained in my post concerning “What is Wrongful Dismissal?” at the very least she would have been entitled to no less than eight (8) weeks notice, and depending upon the good dentist’s payroll perhaps another ten (10) weeks of severance. If she was entitled to common-law notice of dismissal, given that she was a well-educated, thirty-something employee with ten years of service, I would estimate that a court would award her somewhere around seven months of notice, plus or minus two months.

Human Rights

Furthermore, pursuant to section 46.1 of the Ontario Human Rights Code, Ms. Nelson could have sought Human Rights damages in addition to her civil remedies for wrongful dismissal. Section 46.1 is a powerful tool in that it does not require employees to place all their eggs in one basket in electing between a Human Rights case and a wrongful dismissal case.

Whether Ms. Nelson would have been successful under the Ontario Human Rights Code is difficult to speculate. If the Ontario tribunal or court made a finding on the evidence similar to that of the Iowa court, i.e. that the reason for termination was not motivated by Ms. Nelson’s gender, then it is possible that the outcome could have been the same in Ontario. I would hope, however, that the Ontario court would take the much more innocuous decision that no violation of the Human Rights Code had been made out because there was no anti-gender animus and leave to the side comments about protecting the sanctity of marriage.

But is it Right?

Whether or not something is “right” is a question more of morals than it is of law; even if the law is supposed to be a reflection of society’s morals.

In this case, if the stated reason for termination was because the employer could not keep his libido in check, then I might be looking at moral damages. Sure, Ms. Nelson is likely going to find new employment as a dental assistant. That new work will no doubt be in a better working environment where comments about her employer’s pants tightening when she walks by will hopefully be less frequent. However, Ms. Nelson still got sacked for being nothing more than attractive to her boss. Being fired is horrible and Ms. Nelson did nothing to warrant it. Furthermore, unlike most cases where the employee is fired but has done nothing to warrant it, in this case it was the employer’s inappropriate action that created the situation – in my opinion damages separate and apart from notice should follow as a deterrent to others.

I am sure some will disagree with that perspective, but I would be interested to hear your thoughts.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.

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