Analysis Law and Policy

If Telling a Woman She’s ‘Too Cute’ to Be Employed Isn’t Gender Discrimination, What Is?

Lisa Needham

Dilek Edwards alleged that she was fired because her former employer's wife, Stephanie Adams, was jealous about how attractive Edwards was. On August 22, a New York state appeals court ruled that Edwards’ lawsuit could go forward.

Last week, a New York state appeals panel reversed a trial court’s decision about whether it was permissible for Dilek Edwards, a yoga instructor, to sue her former employer Charles Nicolai and his wife, Stephanie Adams. Edwards alleged that she was fired because Adams was jealous about how attractive Edwards was. On August 22, the appeals court ruled that Edwards’ lawsuit could go forward.

It’s the sort of case that sparks lurid headlines, made all the more sensational by the fact that Adams is a former Playboy Playmate. But it’s also the sort of case that can move the law around gender discrimination forward in meaningful and effective ways.

In 2012, Edwards went to work for Nicolai and Adams as a massage therapist and yoga instructor at a wellness center they both owned. In June of that year, according to court documents, Nicolai warned Edwards that his wife might become jealous of her because she was “too cute.” In October 2013, Edwards said she got a frantic 2:00 a.m. text from Adams saying, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!!” A few hours later, around 9:00 a.m., Nicolai sent Edwards an email reading, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

Edwards filed suit and alleged that her firing was gender discrimination under two New York laws: the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Laws (NYCHRL). Initially, her suit was dismissed in May 2016, as the judge held that Edwards did not properly state a claim for gender discrimination and therefore could never prevail at trial.

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In order to state a claim for employment discrimination based on gender under both New York City law and state law, a plaintiff has to state that she is a member of a protected class (which women are) and was fired from a job for which she was otherwise qualified (which there is no dispute Edwards was) and that the circumstances surrounding the firing can lead to an inference she was fired unlawfully.

Importantly, the provisions of both the state and city human rights laws are required to be construed liberally—in other words, that the court generally must take a broad, expansive, and favorable view of of plaintiffs’ claims. Moreover, the New York City law goes above and beyond its corresponding state or federal laws: It extends greater protections against gender discrimination, which theoretically gave Edwards more of a chance to succeed on her claim. The New York City Human Rights Law prohibits discrimination based on “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” Essentially, Edwards argued that being perceived as “too cute” was gender-related and therefore constituted discrimination based on her appearance.

However, a lower court in New York didn’t agree. First, it said that it wasn’t clear what “too cute” meant, and that it might not be a remark about appearance at all. Next, it explained that, since there was no evidence Nicolai employed anyone else, a gender discrimination claim was problematic because there was no evidence Edwards was disadvantaged in relation to male employees. That, of course, sets up an impossible situation: one in which no one may plead gender discrimination if they are the sole employee. The trial court also reviewed a line of cases that dealt with firings where spouses expressed dismay after there had been a consensual sexual relationship between the fired employee and employer, which wasn’t at all the case here. (In those cases, courts generally find the firing permissible, which is an entirely different problem.)

Thankfully, an appeals court in New York has disagreed with this and is letting the case move forward in the trial court system again. Although the appeals court found that the original complaint didn’t successfully set out enough facts to warrant an appearance-based gender discrimination claim (unfortunately, the court didn’t specify what would have been enough), it held that the complaint did properly state that “plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams’s belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL.”

None of this means that Edwards has won yet. Indeed, she’s only won the right to go back to the trial phase and get a chance to prove her case, rather than having it dismissed outright. But it is an important step—particularly given how other jurisdictions, like Iowa, have unfortunately ruled otherwise. In a 2013 case the all-male Iowa Supreme Court upheld the firing of a woman, Melissa Nelson, whose boss fired her because he felt she was too attractive and he might start an affair with her. (Never mind the fact that there was no indication whatsoever that Nelson wished to have an affair with her boss or had even engaged in any flirtatious behavior.)

Expanding gender discrimination claims when they relate to perceived attractiveness, spousal jealousy, or both, is critical. Both of those types of behaviors revolve around very traditional notions of women: They should be attractive, but not too attractive. And according to some courts, like the Iowa Supreme Court, if men perceive them as sexually available—regardless of whether they are—they can be penalized for a man’s (or his spouse’s) misperception in that arena.

Telling a woman she is “too cute” is indeed a remark upon appearance, and firing someone over being too attractive is indeed discrimination. “Too cute” tells a woman she is too attractive vis-a-vis other women, she is cuter than women are supposed to be, she is too cute to be employed. If that’s not discrimination based on gender, it isn’t really clear what is.

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Gender Discrimination, Media

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