I was so annoyed about it last week I’d planned to blog about the Iowa dentist who fired his assistant Melissa Nelson for being too hot and “irresistible.” But I counted to 5 and the moment passed. Besides, it was 4 days before Christmas and the day of the Mayan Apocalypse.
Yuletide spirit and Doomsday notwithstanding, I still don’t know why the news story was so irritating. That seven men sitting in judgment on Iowa’s highest state court failed to find a jurisprudential remedy in law or equity for Melissa Nelson’s suffered wrong shouldn’t have been a surprise.
Most lawyers know enough to never bet on the ancient maxim Ubi Jus Ibi Remediu that “for every wrong, the law provides a remedy.” You’re better off remembering what Lyndon B. Johnson famously averred, “Boys, I may not know much, but I know chicken shit from chicken salad.”
The Iowa Supreme Court, ironically enough after the not-so-long-ago ousting of 3 of its members over gay marriage, this time took the side of traditional marriage-preservationists, more specifically, of Dentist Employer James H. Knight and his Mrs. “It is undisputed, rather, that Nelson was fired,” the Court said, “because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.”
No matter that the court opinion also noted that, “Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight.
“After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going. Dr. Knight also recalls that after Nelson allegedly made a statement regarding infrequency in her sex life, he responded to her, “[T]hat’s like having a Lamborghini in the garage and never driving it.” Nelson recalls that Dr. Knight once texted her to ask how often she experienced an orgasm.”
Simply irresistible.
So in the spirit of Robert Palmer, “anything’s permissible,” and of wrong-head thinking men who can’t control themselves, the Supremes gave a warm affirming nod to personal irresponsibility and an ‘Amen’ to “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.”
It was not “unlawful gender discrimination” and Melissa Nelson only incidentally happened to be a woman. A tight clothes-wearing male assistant wouldn’t have brightened the dental drill or made this employer’s pants bulge.
And insomuch as the court made much of Nelson’s replacement being a woman, they unanimously answered ‘yes’ to the legal question, “Can a male employer terminate a 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?”
“Seem a saint . . . .”
War on women? Misogyny’s as old as time. And blaming women who adorn themselves “with broided hair, or gold, or pearls, or costly array” and not “in modest apparel, with shamefacedness and sobriety” is as old as Scripture.
“Let the woman learn in silence with all subjection,” the passage says. And adds, “But I suffer not a woman to teach, nor to usurp authority over the man, but to be in silence.”
Which later found such pronouncements laid bare,
“But then I sigh and, with a piece of Scripture,
Tell them that God bids us do good for evil.
And thus I clothe my naked villainy
With odd old ends stol’n forth of holy writ,
And seem a saint when most I play the devil.” – Gloucester, Richard III : ACT I : Scene 3. William Shakespeare
You haven’t come a long way, baby.
44 years after that tobacco company popularized a cheesy marketing slogan “You’ve come a long way, baby,“ women really haven’t come as far as we thought.
Indeed, last spring, lingerie company data-entry temp Lauren Odes was told she was “too hot” and that her “breasts were too large” and was terminated as her suit alleged. Her lawyer further claimed, “She was simply fired for being too attractive and for not conforming to the religious strictures imposed by top management.”
Timely post as it has just been reported that the Delhi woman who was gang-raped has died. Very, very sad.
Reading about the Knight case brought many thoughts to mind. In fact, the late great infidelity researcher, Shirley Nelson, whose book “Not Just Friends” deals with workplace affairs, identified the subtle boundary shifts that lead employer / employee or co-workers to become lovers time and again against their better judgment. Reading between the lines, it seems as if Ms. Nelson, presumably happily married, simply did not perceive her boss’s remarks as posing a threat since she did not ask him to stop texting her. (I can’t help wondering if she was also on dangerous ground but unaware of it (which is often the case).)
Does that mean that Ms. Nelson should have been fired? I agree that this case sets a terrible precedent, one which might have been prevented had the Nelson’s Pastor been a bit wiser (and, again a presumption but, also, a little less wary of human sexuality perhaps). He could have counseled Dr. Knight to set very firm boundaries with all of his employees including Ms. Nelson…no texting, no working together alone after hours, etc…and then provided a space for him to explore his attraction and what it meant. If Knight and his wife were still intent on firing Ms. Nelson, Pastor should then have then referred them to an employment attorney who – prior to this case – would have told them they were nuts to do so.
Many moons ago, in my therapy practice I would listen to (more often than not) women cry, “How can I ever trust him again?” The answer, “You can more fully trust him when he begins to trust himself.” In other words, a better outcome for Mrs. Knight would have been to see her husband deepen his understanding of himself as a man who is able to build healthy personal and professional relationships with women that do not threaten their marriage. Why these Iowa jurists think their decision strengthened “family values” is beyond me…makes me think of the “ball and chain” model of marriage.
Well said, Deborah, well said. I also saw the heavy pastoral hand in all of this, providing all too convenient cover for a husband who stepped in it with his wife and can hardly be seen as blameless — notwithstanding the court’s decision to absolve him of any personal responsibility for his inability to control his impulses.Small employers are also generally the least savvy and the most willfully ignorant about workplace discrimination. Some states bend over backwards to protect them, providing remedies, for example, like in Nevada only for those who work for employers with 15 or more employees. Under NRS 613.330(1) and the holding in Chavez v. Sievers, 43 P.3d 1022, 118 Nev 288 (Nev. 2002), if you want a remedy for racial discrimination in employment and you work for a small employer, i.e. one with fewer than 15 employees, you’re out of luck.As for Ms. Nelson, while her too trusting texting with the boss is symptomatic of an incredible naivete, the burden of lawful protocol, boundaries, good conduct and workplace rule establishment ought to rightfully be on the employer, given the power disparity between the business owner/supervisor and his employee. – Mo
Okay, before I get flamed let me say admit that while I couldn’t help wondering whether Ms. Nelson might not have been flirting with danger by ignoring her boss’s “dirty” texts, I could have avoided mentioning this fact here. I would readily agree with anyone who thinks it equally probably, or even more plausible, that she ignored them because she thought he was just acting like a jerk but it wasn’t worth getting worked up over it. In no way do I want to blame Ms. Nelson for her boss’s inability to act like a responsible adult.
I agree, which is what makes the court opinion so unfortunate.