On Sunday, October 13, 2013, I will be participating in a panel presentation entitled, “Ethical Duties of Eliminating Bias in the Legal Profession” as part of the California State Bar’s Eighty Sixth Annual Meeting in San Jose, California. The focus of our discussion will be hidden/implicit biases- those biases that exist within us, subconsciously, if not unconsciously.
In preparing for the presentation, I came across an interesting news article about a 10 year employed dental assistant in Fort Dodge, Iowa who was terminated because she was “too attractive.” Initially, in an opinion issued on December 21, 2012, the Iowa Supreme Court affirmed the decision of the trial judge. The dental assistant petitioned for rehearing in January 2013 and for only the fifth time in a decade, the court granted it. On July 12, 2013, the Iowa Supreme Court issued its slip opinion in Melissa Nelson v. James H. Knight DDS, P.C. and James Knight, Case No. 11-1857 (July 12, 2013), again affirming the trial court’s decision but in a much more detailed but limiting opinion, taking pains to make clear that it was all about the “relationship” and not “gender”.
The facts are quite interesting: It seems that during the last one and half years of Ms. Nelson’s employment with Dr. Knight, the latter would complain at times that Ms. Nelson’s clothing was “too tight and revealing and “distracting””.(Id. at 3.) Then, starting about six months prior to Ms. Nelson’s termination, she and Dr. Knight began texting each other about both work and non work related matters. Some of the texts were a bit sexual in nature. Although Dr. Knight was married, his wife Jeanne who was also employed in his dental practice was not aware of the texting until Dr. Knight took his children skiing while Mrs. Knight stayed home and minded the dental practice. At that point, she found out about the texting. She confronted her husband and insisted that Ms. Nelson be terminated because Ms. Nelson “…was a big threat to our marriage.” (Id. at 4.)
After consulting the church pastor for guidance, Dr. Knight terminated Ms. Nelson on the grounds that “…their relationship had become a detriment to Dr. Knight’s family and that for the best interests of both Dr. Knight and his family and Nelson and her family, the two of them should not work together.” (Id. at 5.)
As one would expect, Ms. Nelson filed a civil rights complaint with the Iowa Civil Rights Commission and upon receiving her “right to sue” letter, filed suit against Dr. Knight alleging one count of discrimination on the basis of sex. Her allegations did not accuse Dr. Knight of sexual harassment but simply that he terminated her because of her gender; had she been a male, the termination would not have occurred.
The trial court granted summary judgment in favor of Dr. Knight finding that he did not engage in unlawful gender discrimination when he fired Ms. Nelson.
The Iowa Supreme Court, noting that its decision was, indeed, quite limited, affirmed. It stated that the issue before it was neither whether Dr. Knight had acted improperly or badly nor whether Dr. Knight had flirted with Ms. Nelson. Rather, the issue was simply whether an employee “… may be lawfully terminated simply because the boss’s spouse views the relationship between the boss and the employee as a threat to her marriage.” (Id. at 9.)
While the Iowa Supreme Court noted that “... the civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status….” the court also noted that Title VII does not authorize ““... courts to declare unlawful every arbitrary and unfair employment decision.”(Citation omitted.)” (Id. at 12.)
After reviewing all of the relevant state and federal decisions, the court also concluded that this was neither an instance of pretext (i.e., the reason given for termination was simply a pretext for discrimination) nor gender stereotyping amounting to unlawful sex discrimination. (Id. at 13.) Why? To the court, the critical fact was that Ms. Nelson lost her job because Dr. Knight’s wife objected to the parties’ relationship. (Emphasis original.) (Id. at 15.) She was fired simply because Mrs. Knight viewed plaintiff as a threat to her marriage. (Id. at 14.)
The court also rejected Ms. Nelson’s claim that as she was fired “… by a boss to avoid committing sexual harassment…” (Emphasis original), she, in essence, should be treated as though she had been sexually harassed. The Court simply would not make this leap. (Id. at 15.)
Thus, Ms. Nelson lost; her termination for being “too attractive” was upheld. No doubt, many will take issue with this decision and wonder where is the “justice” or the “fairness”. While Ms. Nelson may have been accorded “justice” in that she had her due process and day in court, did she receive “fairness”? She thinks not, because on July 16, 2013, she petitioned for rehearing which the court denied on July 19, 2013. Thus, at least for now, the decision stands.
I find the decision intriguing as it reveals how thin the line really is between “discrimination” and “bias”. While the former is illegal under our laws, the latter is not… unless it morphs into the former. And the holder of the truly implicit bias here was the wife- Mrs. Knight. She was the one that held the “too attractive” bias! She felt her marriage threatened by Ms. Nelson’s good looks and no doubt, in essence, issued the ultimate ultimatum: either she is fired or the marriage is over. It wasn’t Dr. Knight that was “biased” out of fear of his lack of self control. It was his wife giving him a choice to make-either her or me, but not both. Her “too attractive “bias was, in truth, a “relationship” bias.
This decision presents a teachable moment: implicit biases are not only all around us but within us as well. They appear in the most unlikely of places, and at the most unlikely of times. We need to be aware and before taking action- “stop, look and listen” both externally and internally. Only once we become truly aware of both our external and internal “conversations’, can we prevent our implicit biases form morphing into discrimination.