Analysis Law and Policy

Fired for Being Hot? How the Iowa Supreme Court Replaced Employment Law With Purity Culture

Jessica Mason Pieklo

A stunning decision from the Iowa supreme court has little to do with law and everything to do with purity culture.

In December 2012 the Iowa Supreme Court issued a stunning opinion, holding that an employer was within his rights to fire an employee he found “distractingly” attractive and a threat to his marriage because he feared he would be unable to stop himself from having an affair with her. The decision caught so many off guard that the court took agreed to give the case a second look.

As it turns out, that second look wasn’t much better than the first. In a unanimous decision, the all-male Iowa supreme court again held that firing an employee for being too attractive was OK, but this time limited the decision to the particular facts of the case at issue, meaning the decision isn’t intended to have a wide reach. That said, the newer, narrower decision is still plenty bad.

In 1999, Dr. James Knight hired Melissa Nelson to work as a dental assistant in his office. At that time, Nelson had just received her community college degree and was 20 years old. Nelson worked for Knight for the next ten years, and by all accounts she was a model employee. During the last six months or so of Nelson’s employment, Dr. Knight and Nelson started texting each other outside the workplace. The texts were reportedly mostly innocent. Both Dr. Knight and Nelson have children, and some of the texts involved updates on the kids’ activities and other relatively innocuous matters. According to court documents, Nelson testified that she considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him.

But there’s no denying at least some of the texts were sexual in nature. On one 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 testified 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 testified that Dr. Knight once texted her to ask how often she experienced an orgasm. Nelson didn’t answer at all, not even to let him know she was offended.

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In late 2009, Dr. Knight took his children to Colorado for Christmas vacation. Dr. Knight’s wife Jeanne, who was also an employee in the dental practice, stayed home. While her husband was out of town Jeanne Knight found his text messages to Nelson. When Dr. Knight returned home, Jeanne confronted her husband and demanded that he fire Nelson. Both of them consulted with the senior pastor of their church, who agreed with the decision.

At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office. He had arranged for another pastor from the church to be present as an observer. Dr. Knight, reading from a prepared statement, told Nelson he was firing her. The statement said, in part, that their relationship had become a detriment to Dr. Knight’s family and that for the best interest of Dr. Knight and his family and Nelson and her family, the two of them should not work together.

According to court documents, Dr. Knight then handed Nelson an envelope that contained one month’s severance pay. Nelson started crying and said she loved her job. Nelson’s husband Steve phoned Dr. Knight after getting the news of his wife’s firing. Dr. Knight initially refused to talk to Steve Nelson, but later called back and invited him to meet at the office later that same evening. Once again, the pastor was present. In the meeting, Dr. Knight told Steve that Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he had ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson sued, claiming Knight discriminated against her on the basis of sex. Nelson did not claim she was sexually harassed or was subject to a sexually hostile work environment, simply that Dr. Knight fired her because of her gender and that he would not have terminated her if she was a man. Dr. Knight responded that Nelson was terminated not because of her sex but because of the nature of their relationship and the perceived threat to Dr. Knight’s marriage. Nelson’s response was that neither the relationship nor the alleged threat would have existed if she had not been a woman.

Workplace affairs are, by definition, messy, and the law has done a horrible job trying to sort them out. In Nelson’s case, the court went to great lengths on this second read to make it clear it did not view Title VII and the Iowa Civil Rights Act as “general fairness laws,” noting that an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based on the employee’s protected status. Knight’s treatment of Nelson may be unfair, but because it was based on his feelings for her and not her gender, that treatment was lawful.

It’s a tortured distinction and one that raises significant concerns for employees moving forward. The position embraced by the court will become a way to avoid liability for discrimination by relying on the stereotype that heterosexual men are unable to stop themselves from behaving inappropriately around attractive female co-workers. Any employer can justify a series of adverse employment actions against persons of one gender by claiming, “My spouse was jealous.” But the all-male Iowa supreme court was not concerned with this argument, choosing instead to look out for all those employers who they feared would face lawsuits after attempted workplace affairs went south.

In many ways the entire decision is a reflection of just how pervasive purity culture is, and shows that Nelson’s claims were doomed from the start. Nowhere is Knight, the admitted aggressor in this case, held to any standard of accountability here—not by his wife, his pastor, or the law. Every institution reinforced that idea that it was Nelson to blame and that the solution to Knight’s “problem” was to fire her. And to get to that conclusion, each institution had to overlook the fact that Knight only employs women, including his wife, that it was Knight who sent Nelson sexually pointed texts that she ignored, and that it wasn’t until his wife discovered the indiscretion, and on her demand, that Knight acted to change that behavior, by firing Nelson. And the court takes great pains to applaud Knight for seeking out the help of his pastor and following the wishes of his wife and completely ignores that none of those actions represent traditional paths of resolving an employment dispute. Who needs human resources when you have your pastor at the ready?

What was Nelson, or any other employee in her position to do that she didn’t already? According to the National Women’s Law Center, almost half of all working women have experienced some form of harassment on the job, but only between 5 and 15 percent formally report problems of that harassment to their employer or employment agencies. In Nelson’s case, she had, essentially, the makings of a harassment claim, except that she was fired before she was propositioned. The proposition Knight made clear was coming. It was not a question of if but a question of when. So, knowing he would be unable to control himself, he fired her instead. It’s the employment law equivalent of victim-blaming, and the Iowa supreme court endorsed it whole-heartedly.

In her dissenting opinion in Vance v. Ball State, the U.S. Supreme Court decision that narrowed beyond recognition the definition of “supervisor” for purposes of workplace harassment claims, Justice Ruth Bader Ginsburg accused her conservative colleagues of being drastically out of touch with the realities of workplace relationships and the challenges women face when the justices authored a decision that refused to recognize the realities of employee-on-employee harassment. As it turns out, being drastically out of touch with the realities of workplace relationships is pretty common for courts these days.

Roundups Politics

Campaign Week in Review: Republican National Convention Edition

Ally Boguhn

The Trump family's RNC claims about crime and the presidential candidate's record on gender equality have kept fact-checkers busy.

Republicans came together in Cleveland this week to nominate Donald Trump at the Republican National Convention (RNC), generating days of cringe-inducing falsehoods and misleading statements on crime, the nominee’s positions on gender equality, and LGBTQ people.

Trump’s Acceptance Speech Blasted for Making False Claims on Crime

Trump accepted the Republican nomination in a Thursday night speech at the RNC that drew harsh criticism for many of its misleading and outright false talking points.

Numerous fact-checkers took Trump to task, calling out many of his claims for being “wrong,” and “inflated or misleading.”

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 Among the most hotly contested of Trump’s claims was the assertion that crime has exploded across the country.

“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump claimed, according to his prepared remarks, which were leaked ahead of his address. “Homicides last year increased by 17 percent in America’s 50 largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings have risen by 50 percent. They are up nearly 60 percent in nearby Baltimore.”

Crime rates overall have been steadily declining for years.

“In 2015, there was an uptick in homicides in 36 of the 50 largest cities compared to the previous years. The rate did, indeed, increase nearly 17 percent, and it was the worst annual change since 1990. The homicide rate was up 54.3 percent in Washington, and 58.5 percent in Baltimore,” explained Washington Post fact checkers Glenn Kessler and Michelle Ye Hee Lee. “But in the first months of 2016, homicide trends were about evenly split in the major cities. Out of 63 agencies reporting to the Major Cities Chiefs Association, 32 cities saw a decrease in homicides in first quarter 2016 and 31 saw an increase.”

Ames Grawert, a counsel in the Brennan Center’s Justice Program, said in a statement posted to the organization’s website that 2016 statistics aren’t sufficient in declaring crime rate trends. 

“Overall, crime rates remain at historic lows. Fear-inducing soundbites are counterproductive, and distract from nuanced, data-driven, and solution-oriented conversations on how to build a smarter criminal justice system in America,” Grawert said. “It’s true that some cities saw an increase in murder rates last year, and that can’t be ignored, but it’s too early to say if that’s part of a national trend.” 

When Paul Manafort, Trump’s campaign chairman, was confronted with the common Republican falsehoods on crime during a Thursday interview with CNN’s Jake Tapper, he claimed that the FBI’s statistics were not to be trusted given that the organization recently advised against charges in connection with Hillary Clinton’s use of a private email server during her tenure as secretary of state.

“According to FBI statistics, crime rates have been going down for decades,” Tapper told Manafort. “How can Republicans make the argument that it’s somehow more dangerous today when the facts don’t back that up?”

“People don’t feel safe in their neighborhoods,” said Manafort, going on to claim that “the FBI is certainly suspect these days after what they did with Hillary Clinton.”

There was at least one notable figure who wholeheartedly embraced Trump’s fearmongering: former KKK Grand Wizard David Duke. “Great Trump Speech,” tweeted Duke on Thursday evening. “Couldn’t have said it better!”

Ben Carson Claims Transgender People Are Proof of “How Absurd We Have Become”

Former Republican presidential candidate Ben Carson criticized the existence of transgender people while speaking at the Florida delegation breakfast on Tuesday in Cleveland.  

“You know, we look at this whole transgender thing, I’ve got to tell you: For thousands of years, mankind has known what a man is and what a woman is. And now, all of a sudden we don’t know anymore,” said Carson, a retired neurosurgeon. “Now, is that the height of absurdity? Because today you feel like a woman, even though everything about you genetically says that you’re a man or vice versa?”

“Wouldn’t that be the same as if you woke up tomorrow morning after seeing a movie about Afghanistan or reading some books and said, ‘You know what? I’m Afghanistan. Look, I know I don’t look that way. My ancestors came from Sweden, or something, I don’t know. But I really am. And if you say I’m not, you’re a racist,’” Carson said. “This is how absurd we have become.”

When confronted with his comments during an interview with Yahoo News’ Katie Couric, Carson doubled down on his claims.“There are biological markers that tell us whether we are a male or a female,” said Carson. “And just because you wake up one day and you say, ‘I think I’m the other one,’ that doesn’t change it. Just, a leopard can’t change its spots.”

“It’s not as if they woke up one day and decided, ‘I’m going to be a male or I’m going to be a female,’” Couric countered, pointing out that transgender people do not suddenly choose to change their gender identities on a whim.

Carson made several similar comments last year while on the campaign trail.

In December, Carson criticized the suggested that allowing transgender people into the military amounted to using the armed services “as a laboratory for social experimentation.”

Carson once suggested that allowing transgender people to use the restroom that aligned with their gender identity amounted to granting them “extra rights.”

Ivanka Trump Claims Her Father Supports Equal Pay, Access to Child Care

Ivanka Trump, the nominee’s daughter, made a pitch during her speech Thursday night at the RNC for why women voters should support her father.

“There have always been men of all background and ethnicities on my father’s job sites. And long before it was commonplace, you also saw women,” Ivanka Trump said. “At my father’s company, there are more female than male executives. Women are paid equally for the work that we do and when a woman becomes a mother, she is supported, not shut out.” 

“As president, my father will change the labor laws that were put into place at a time when women were not a significant portion of the workforce. And he will focus on making quality child care affordable and accessible for all,” she continued before pivoting to address the gender wage gap. 

“Policies that allow women with children to thrive should not be novelties; they should be the norm. Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career.”

However, Trump’s stated positions on the gender wage gap, pregnancy and mothers in the workplace, and child care don’t quite add up to the picture the Trumps tried to paint at the RNC.

In 2004, Trump called pregnancy an “inconvenience” for employers. When a lawyer asked for a break during a deposition in 2011 to pump breast milk, Trump reportedly called her “disgusting.”

According to a June analysis conducted by the Boston Globe, the Trump campaign found that men who worked on Trump’s campaign “made nearly $6,100, or about 35 percent more [than women during the April payroll]. The disparity is slightly greater than the gender pay gap nationally.”

A former organizer for Trump also filed a discrimination complaint in January, alleging that she was paid less than her male counterparts.

When Trump was questioned about equal pay during a campaign stop last October, he did not outline his support for policies to address the issue. Instead, Trump suggested that, “You’re gonna make the same if you do as good a job.” Though he had previously stated that men and women who do the same job should be paid the same during an August 2015 interview on MSNBC, he also cautioned that determining whether people were doing the same jobs was “tricky.”

Trump has been all but completely silent on child care so far on the campaign trail. In contrast, Clinton released an agenda in May to address the soaring costs of child care in the United States.

Ivanka’s claims were not the only attempt that night by Trump’s inner circle to explain why women voters should turn to the Republican ticket. During an interview with MSNBC’s Chris Matthews, Manafort said that women would vote for the Republican nominee because they “can’t afford their lives anymore.”

“Many women in this country feel they can’t afford their lives, their husbands can’t afford to be paying for the family bills,” claimed Manafort. “Hillary Clinton is guilty of being part of the establishment that created that problem. They’re going to hear the message. And as they hear the message, that’s how we are going to appeal to them.”

What Else We’re Reading

Vox’s Dara Lind explained how “Trump’s RNC speech turned his white supporters’ fear into a weapon.”

Now that Mike Pence is the Republican nominee for vice president, Indiana Republicans have faced “an intense, chaotic, awkward week of brazen lobbying at the breakfast buffet, in the hallways and on the elevators” at the convention as they grapple with who will run to replace the state’s governor, according to the New York Times.

“This is a party and a power structure that feels threatened with extinction, willing to do anything for survival,” wrote Rebecca Traister on Trump and the RNC for New York Magazine. “They may not love Trump, but he is leading them precisely because he embodies their grotesque dreams of the restoration of white, patriarchal power.”

Though Trump spent much of the primary season denouncing big money in politics, while at the RNC, he courted billionaires in hopes of having them donate to supporting super PACs.

Michael Kranish reported for the Washington Post that of the 2,472 delegates at the RNC, it is estimated that only 18 were Black.

Cosmopolitan highlighted nine of the most sexist things that could be found at the convention.

Rep. Steve King (R-IA) asked, “Where are these contributions that have been made” by people of color to civilization?

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.