By Eric B. Meyer
Late last month, a unanimous Iowa Supreme Court held that it was OK for a male boss to fire a female employee — a model employee — out of concern that he would eventually succumb and do things with her that could jeopardize his marriage.
That has to be gender discrimination!
Right?
Well…
The boss replaced the fired female employee with another (presumably less tempting) female. This suggests to me — as it did the court — that having the hots for a particular female employee (versus females in general) motivated the firing decision. (Of course, had the actor displayed a pattern of canning female employees because he feared sleeping with them, it may be a different story).
Additionally, although not a focus of the opinion, the same person who hired the female employee also fired her. In many courts, the “same-actor” defense can be used to show that if one person does the hiring and the firing — especially over an abbreviated period, it’s unlikely that he is biased against [protected class of hired/fired employee].
In this Iowa case, the boss — actually, the boss’s wife (she found the text messages) — wanted the employee gone because her “irresistible attraction” threatened the boss’s marriage. Absent sexual harassment, the subsequent adverse employment action is not actionable.
Unfair? Yes. But, anti-discrimination laws are not fairness laws. They are only implicated when the employer discriminates based on an employee’s protected status; not when an employer treats a particular female employee different than it would other (less alluring) female employees.
Absent sexual harassment, that single termination based on a set of feelings towards that particular employee (albeit motivated by the boss’s penis), even if unjust, by definition, does not violate the law.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.
