Either she goes, or I do!

Most of us have heard, at some point in our lives, a version of the following situation. One spouse, usually a wife, feels threatened because the other spouse has an employee who is perceived as a threat to the marriage. Usually, it is the husband whose young attractive employee sparks pangs of jealousy and defensiveness in the heart of his wife (yes, it could be the other way around, but that is less common). The relationship is strictly business until, over time, it morphs into something else. At some point, innocent flirting and banter evolves into feelings that might prompt actions that, once undertaken, could lead to serious problems with the sanctity of the relationship between the employer and his spouse as well as the relationship between the employee and her spouse. This is a form of that slice of life we call human nature. At some point, the employer’s spouse feels threatened enough to utter the now famous words heard millions of times around the planet in hundreds of languages: “either she goes or I do!”

So, what does this have to do with orthodontics? C’mon, you know what it has to do with orthodontics. This scenario happens a lot in orthodontic offices. Well, maybe not a lot . . . but enough. Enter the case of Nelson v Knight , Sup. Ct. Iowa, No. 11-1857, filed December 21, 2012. The first sentence of the court’s opinion frames the issue. “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?” The natural follow-up question is: Would firing the employee amount to unlawful sex discrimination in contravention to the state’s civil rights act? Hmm.

In 1999, the defendant (a dentist) hired the plaintiff as one of his dental assistants. They worked together for 9 years without incident or problem. Oh, by the way, the defendant’s wife also worked in his office (this happens a lot in orthodontics, too). We have all heard the adage that familiarity breeds contempt. It also might breed the expression of other repressed feelings resulting from a decade of close contact in a working environment. Well, during the next year and a half, on several occasions, the employer complained to the employee that her clothes were either too tight or too revealing, and that it was so distracting that there were numerous times when the employer had to ask the employee to put on her lab coat. He testified that he made these statements because he felt uncomfortable seeing her “wear things that accentuated her body.”

During the last 6 months of her employment, the parties started texting each other outside the office on both professional and personal matters. Many texts, according to the court documents, concerned “updates on the kids’ activities [of the respective parties] and other innocuous matters.” However, in 1 text, the employer paraphrased an old Mae West line when he stated something like if she saw his pants bulging she would know that her clothing was too revealing. In another text, he related his feelings about her shirt being too tight, and another text on the same topic stated that if she ever wore pants that tight he would get it coming and going. The texting continued, and in response to one in which the employee complained about infrequency in her sex life, the defendant jocularly responded: “That’s like having a Lamborghini in the garage and never driving it.” The employee also testified that in another text the employer asked how often she experienced an orgasm.

The employee acknowledged that for the vast majority of their professional relationship (the first 9 years) the employer treated her with respect, and she considered him a man of high integrity. She also testified that she considered her employer to be “a friend and father figure,” and she denied that she ever flirted with him or sought an intimate or sexual relationship with him.

In 2009, when the defendant went on a skiing vacation with his children, his wife stayed home and discovered that the plaintiff and the defendant had been texting each other. Upon his return, she confronted her husband and offered the ultimatum stated in the title of this article. They both consulted their church’s pastor, who agreed with their decision to terminate the employee. The basis for the ultimatum was simple—the wife perceived the employee as “a big threat to our marriage” for the following reasons: (1) the inappropriate texting between the two, (2) the plaintiff’s revealing clothing, (3) the plaintiff’s flirting with the defendant, (4) the plaintiff’s coldness toward her (the wife) at work, (5) the employee’s ongoing criticism of another assistant in the office, and finally (6) the employee’s hanging around after work so that it would just be her and her employer alone in the office. The employer’s spouse thought it unusual that after being at work all day away from her husband and kids, the employee would choose to hang around with the employer and was not eager to get home to her family as were the other employees in the office.

At any rate, at the end of a workday in early 2010, with the pastor present, the employer called the employee into his office and terminated her employment. Reading from a prepared statement, he told her that their relationship had become a threat to his marriage and family, and he believed it to be in the best interests of both families that they should no longer work together. Later on, the employee’s husband called the defendant to meet with him to discuss the situation. Again, with the pastor present, the employer met with the employee’s spouse and told him that although his spouse had done nothing wrong or inappropriate and was in fact the best assistant he had ever had, he was concerned the he (the employer) was getting too personally attached to her, and if he did not terminate her employment, he believed that eventually he would try to have an affair with her. The employee’s position was ultimately filled by another female employee (all of the defendant’s employees have always been female).

The employee filed a civil rights violation, claiming that she was fired on the basis of her sex (gender). She did not file a claim for sexual harassment. In other words, she claimed she was fired for being a woman. The district court granted summary judgment in favor of the defendant, holding that the plaintiff was fired not because she was female, but because she presented a threat to the defendant’s marriage. This basis for termination was held not to be illegal, triggering this appeal to the Iowa Supreme Court.

The Iowa Code Sec. 216.6 (1)(a) (2009) states that it is unlawful to either discharge or discriminate against an employee on the basis of an employee’s sex (gender). The Iowa code conforms to the federal law governing this area, Title VII of the US Civil Rights Act. Interpreting Title VII in another similar case showed that the court held that “absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.”(cit. omit.) Because there was no claim of either unwanted sexual advances or a hostile work environment, the court made this decision based on the following logic. If specific instances of sexual favoritism do not rise to the level of gender discrimination, then the corollary must also apply; treating an employee unfavorably cannot violate the law, either. It all boiled down to a simple question. “Can an employee . . . be terminated because the boss views the employee as an irresistible attraction.” The court stated the following and guiding admonition that “Title VII and the Iowa Civil Rights Act are not fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

The court then addressed the slippery slope argument postulated by the following facts: suppose that the employer fired several female employees because he was concerned about becoming attracted to all of them. Or suppose that the employer’s spouse was jealous of several female employees in the office and demanded that her husband fire all of them. The court noted that if that were the case, the argument that the employee’s gender, and not the relationship, could be construed as the basis for termination; then the firing would indeed be unlawful. In finding again for the defendant employer, the court cited a Michigan case that stated the following:

We do not read the . . . Civil Rights Act (CRA) . . . to prohibit conduct based on romantic jealousy. . . . [D]iscrimination based on sex to prohibit conduct based on romantic jealousy turns the CRA on its head. The CRA was enacted to prevent discrimination because of classifications specifically enumerated by the Legislature and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. It is beyond reason to conclude that plaintiff’s status as romantic competition . . . places plaintiff within the class of individuals the Legislature sought to protect when it prohibited discrimination based on sex under the CRA.

Plaintiff did not claim that . . . [she] was required to submit to sexually-based harassment as a condition of employment. Nor did the evidence presented at trial support a theory of gender-based discrimination. . . . It would not matter if the person [prompting the jealousy] was male or female. As such, it is evident that the plaintiff’s gender was not the impetus for the . . . conduct, but rather was merely coincidental to that conduct. (cit. omit.)


What are we to take away from this case? Aside from understanding the legalities and the fine demarcating lines between what conduct will and will not get you into legal trouble, one could argue that it stands for the proposition that it might not be a good idea to hire attractive employees. I recall once getting smacked by my wife for looking at an attractive woman who happened to pass by our table in a restaurant. She asked “what are you looking at?” I retorted that “merely because I am on a diet doesn’t mean I can’t read the menu”—not the right answer.

One could also argue that it stands for the proposition to, above all, uphold the sanctity of marriage by not succumbing to temptation. Certain conduct should be strictly forbidden. It should be quite obvious from recent examples in the news that certain forms of communication—eg, inappropriate texting—are no-no’s that can result in big trouble once they are discovered. Woody Allen said “The heart wants what the heart wants.” Maybe so, but the office isn’t the place to let your emotions run wild; think Clarence Thomas and Anita Hill.

What about those of us who have excessively jealous spouses? Look, it’s one thing to be placed between a rock and a hard place. It’s something else to live in the quarry. Although jealousy is a strong motivating factor, when carried to the extreme, it could expose you to liability. In that situation, maybe having one’s spouse work in the office is not the best thing regardless of what your accountant says.

After a decade of employment and working closely with one another, things sometimes happen between employee and employer. Paraphrasing current idiomatic language, what you should be striving for is friendship without benefits. Life is tough; that’s why they call it life. First you take the test, and then you learn the lesson. So again, what is it we are to take away from this case? Maybe it’s as simple as realizing that the consequences of our actions might result in a choice that none of us ever wants to make. Maybe an ounce of prevention is truly worth a pound of cure.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Either she goes, or I do!

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