Debate Forum, 1/8

Debate Forum, 1/8

Being attractive can lead to ugly termination

 By Alex Culpepper

Melissa Nelson of Iowa is a physically attractive woman. In fact, she’s so attractive that it led to her losing her job. Her former employer Dr. James Knight believed that her beauty and sexy clothes were powerful distractions that would one day tempt him to have an affair with her. Dr. Knight’s wife, Jeanne, felt that these distractions were also detrimental to their relationship, so she told her husband to get rid of his distractingly attractive assistant. He did just that. In response, Nelson filed a lawsuit against Dr. Knight for dismissing her because of her gender. Dr. Knight, however, claimed that gender had nothing to do with it. He fired her because he believed that she was a threat to his marriage. The Iowa Supreme Court agreed with him.

For more than 10 years, Nelson was a dental assistant in Dr. Knight’s dental office. During that time both people worked well together and had nice things to say about each other. To Dr. Knight, Nelson was a good assistant; to Nelson, Dr. Knight was respectful and maintained honor and integrity. But it was during the last 18 months prior to Nelson’s firing that Dr. Knight became concerned about Nelson’s alleged overly sensual appearance. Then, in the last six months of Nelson’s employment, she and Dr. Knight also shared text messages about personal matters. Court documents revealed interactions between the dentist and his assistant that some would not only deem inappropriate, but would have possibly yielded legal sexual harassment consequences. Nelson, however, did not file a sexual harassment lawsuit. Despite the fact there were no performance-related grounds for termination, Nelson contested Dr. Knight’s decision to fire her based on her appearance. The all-male 7-0 Iowa Supreme Court decision upheld a lower court decision that Dr. Knight’s termination decision was legal. In their decision, the court said: “We are asked to decide only if a genuine fact issue exists as to whether Dr. Knight engaged in unlawful gender discrimination when he fired Nelson at the request of his wife. For the reasons previously discussed, we believe this conduct did not amount to unlawful discrimination, and therefore we affirm the judgment of the district court.”

Some people might see this as an outrage and a clear example of gender discrimination. That is exactly what Nelson claims because she said that if she were a man this would never have happened. But the court and Dr. Knight have past legal decisions on their side that show that “an employer does not engage in unlawful gender discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy.” Or simply put, the boss has a legal right to favor his (or her) marriage or personal relationship over the welfare of an employee who is perceived as a threat to that relationship.

So if a person can be fired for being dangerously attractive, can someone also be fired for being distractingly unattractive? People can be fired for most any reason really, or even not hired in the first place. Employers make decisions about appearance all the time: no facial hair, no piercings, no tattoos, no shabby clothing and so on. Some people would surely love to see employers reined in for these decisions as well, while others will continue to support an employer’s legal right to make these appearance-related decisions about who works for them.

Debate Forum Question of the Week: 

“As employment discrimination based on gender, sexual orientation, ethnicity, religious affiliation, age, etc. is illegal in every state, should states consider passing legislation making discrimination based on appearance illegal?”

Debate Left: Theeere she iiis!  Miiisss …

 By Ben Tomkins

I recently received the following piece of criticism about one of my pieces:

“I actually agree with many things that he says, but there are so many more less-offensive ways to make a point. I tend to tune out those who try to make their points through crude, offensive, chest-thumping means, so the effectiveness of his argument was lost after I quit reading. Of course, I imagine his rejoinder will be, “What the s**t do you think I care about your opinion!” – Dan Withers

Dan, you’re right.  I admit it.  Sometimes I cross the line. I’ve had many a time at the DCP where I’ve been on the receiving end of awkward exchanges with editors, and even the publisher, informing me that my choice of words was, how does one say – unappetizing for the public consumption.

When it’s bad, you get an email. When it’s horrible, you get a phone call. Here’s an example of a phone call:

Publisher:  Hi Ben, Paul Noah here. Listen, I’m all about free speech, and I see how what you’ve written is one possible metaphor for how much people hate our president. However, you can’t use the n-word in this newspaper.

Ben:  Yeah … I guess I knew that when I sent it.

That was the second piece I ever wrote.

Look, I understand that there are limits, and occasionally I go too far. I applaud Dan Withers not only for his criticism, but for having the stones to tell me to my face.  Dan, my response to you is not “What the s**t!” My response is, “High five. Here is a man who knows how to use the First Amendment.”

But I do have one question for you:

“Exactly what the f**k am I supposed to do when they give me a topic about some chick’s titties being too big?”

Look Dan, I’m sorry. I get it, but there’s just no way possible. Guadalcanal is going to be a certain kind of thing.

So I watched Melissa Nelson’s (Bit Tits) interview objectively and critically, and scrupulously researched the case’s particulars. They go something like this:

Dentist and Big Tits text regularly. Topics include “if my pants are bulging, you would know your clothes are too revealing (clearly she asked),” “how often (she) had experienced an orgasm” and s**t like that.

Wife, who happens to work there (High five. Here is a man who does not know how to use the First Amendment), finds out, pitches a fit and tells him to fire Big Tits. Now, one might imagine his rejoinder will be, “What the s**t do you think I care about your opinion?!”  But Dan and I both know that’s not happening. Dentist has to live with Wife and she will f**king crucify him. Predictably, Big Tits is now stalling out the unemployment recovery and going to unbelievable lengths on ABCNews to convince Spouse not to kill her and take Two Kids with him.

Now, in my experience, women are like orchestral conductors. 99.999 percent aren’t the very smartest or the very dumbest I’ve met. There’s only one apiece and the rest are somewhere in between, so I’m generally pretty whimsical and deferential to idiosyncrasies.  However, listen to her response:

“I’m devastated … after working so many years side by side I didn’t have any idea that that would have crossed his mind. I think it’s sending a message that men can do whatever they want in the workforce.”

Based on that, I’m forced to conclude she’s one of three things:

1. Top 1 percent of hopelessly naive women – Hey, it wasn’t like that, right, Big Tit’s husband?

2. Disingenuous and manipulative – that’s not special at all …

3. The dumbest woman I’ve ever seen.

I almost went with option two because chasing a cash settlement makes perfect sense, but I just can’t believe that anyone intelligent enough to be manipulative would actually think they stood a chance of packing that case into the A-cup of women’s rights. 947 texts in 2 days about “bulge”? Sure. Let’s take a vote. How many of you think this is about discrimination based on physical appearance?

OK. Now hands up if you think this has nothing to do with women’s rights and everything to do with woman-on-woman crime, i.e. Wife wants Big Tits dead.

Thanks Ohio, I just organized those papers on my desk.

But when you watch the tape, it’s clear that no actress is that good. She really looks hurt. So it must be number one, right? Even my lovely wife, when she caught me looking at porn, angrily told me her ex-boyfriend never did … because he told her so.

Well, there you go. In a strange way, I actually find it endearing the same way as when my dog stares at me pathetically because the door is open slightly less than the width of his head.

But there’s naive and there’s naive. Talking about your personal life too much is naive. Using the n-word in your column is … um … not.

So we have a new champion ladies and gentlemen.  Melissa “Big Tits” Nelson:  Mother, wife, former dental assistant – and proud recipient of “The Dumbest Woman I’ve Ever Seen” award. Remember Melissa, when the music turns on your acceptance speech needs to stop, and it will already be playing when you walk on stage.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

Debate Right: And justice for all?

By Lisa M. Wells

“I’m sorry you are too hot – you’re fired.”  I thought this was America, where unfairness in the workplace surrounding attractiveness has meant that the blonde bombshell gets promoted from fryer to counter before the timid brunette in the corner. But this is exactly what happened in an Iowa dental office two years ago to assistant Melissa Nelson. After 10 years of loyal service, Nelson was discharged with just one month’s severance pay because her boss believed her presence in his office was a threat to his marriage.

Nelson had spent her entire career in Dr. Knight’s office, having been hired by the doctor when she was 21 years old and fresh out of school. Both parties agreed that for the first nine years of their working relationship they worked side-by-side in a very professional and familiar environment. However, in the last year of her employment, the nature of their relationship began to evolve. Dr. Knight began to comment on Nelson’s physical appearance, often protesting that her clothing was “distracting,” “revealing” or “too tight.” Nelson would later say that she mostly ignored these comments.

In that final year of her employment, Dr. Knight went out of town and left his cell phone at home. This is when the good doctor’s wife discovered some of the texts from her husband to his assistant. While many of the texts have been characterized as benign – such as comments on one another’s children’s sports activities or family events – some of the communiqués were much more lewd and sexual in nature. Needless to say, Mrs. Knight was not encouraged by what she had seen on her husband’s phone. After being counseled by the clergy at their church, Dr. and Mrs. Knight met with Nelson at the office one evening and terminated her employment.

Shortly after her firing, Nelson filed a discrimination complaint, stating that she would not have been fired, but for her gender. Iowa, like many states, is an “at-will” employment state. This means that an employer or employee can terminate their relationship at any time, with no advance warning. However, there are a few exceptions to this rule – importantly, Title VII of the Civil Rights Act of 1964 which protects individuals from discrimination on the basis of race, color, religion, sex or national origin.  This is the statute that Nelson had claimed Dr. Knight had violated, because the threat of a sexual relationship would not have occurred if she was male.

Dr. Knight argued that her gender had no bearing on her eventual termination – after all, Dr. Knight had a track record of hiring only women. He even hired another female employee to fill Nelson’s position. His contention was that this particular employee posed a direct threat to his marriage – and the Iowa Supreme Court agreed.

Although the Court did find that the firing may have been unfair, they ruled that Nelson’s firing did not constitute sex discrimination under the law. The Court found that there was a distinction between (1) firing an employee in an isolated incident, even if the perceived relations would not have existed if she were a male employee, and (2) an employment decision based on gender itself. The court did allow that it may be possible to conclude that gender was the deciding factor in Nelson’s termination, if Dr. Knight had repeatedly fired female employees due to their perceived threat to his marriage in the past.  However, in this case, this isolated employee was fired and ultimately replaced by another female assistant. Her gender was not the deciding factor in her termination, as Nelson could not illustrate Dr. Knight was biased against female employees as a generality.

The decision has created a lot of interest both domestically and internationally. Many people have pointed to the all-male Iowa justices, saying the court’s decision was unfairly biased. However their criticism of the court is unfair. Our justice system is built on a foundation of precedents and case law, and the court did an extensive and thorough job of justifying and explaining their decision. Simply put, the laws in this country can protect you from being fired for being a woman, but not from being fired for your perceived beauty, or lack thereof – the degree of your attraction is not determined by your gender.

There are many examples of workplaces where your physical appearance determines your employment.  Without being too specific, there are several “wing and beer” restaurants that hire employees based on a particular look. These employment decisions have been challenged in the courts before and have not been found to constitute discrimination under the civil rights laws. Can you imagine the insanity that would ensue if attractiveness were deemed a protected status under the law? Who would make those determinations? How would a court decide if someone were too pretty, or worse, too ugly for a particular job? The answer is, they couldn’t. The solution to “perceived” problems in the justice system is rarely more legislation. Rather, we should continue to allow the courts to take cases and make decisions on a case-by-case basis. This is how the foundation of our laws have been determined since before we were a United States, and it has proven itself to be one of the most comprehensive and progressive civil rights legislation in the world.

Reach DCP freelance writer Lisa M. Wells at LisaWells@daytoncitypaper.com



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