“Say No to This”: Courts Must Stop Holding that Firing Attractive Women Is Not Sex Discrimination

In the musical Hamilton, with which I am admittedly obsessed, the main character pleads with his own superego or perhaps some higher power to “show me how to say no to this” when he is first confronted with Mariah Reynolds, an ostensibly abandoned woman who pleads with Hamilton for help.

Although Alexander Hamilton ends up in a long affair with her, and pays her husband for the privilege—a series of actions that contribute to his political undoing—he understands that what he is doing is wrong and might have dire consequences. And he pleads, though unsuccessfully, for self-restraint. And when the time comes, he owns up to his affair in the most public of ways—he publishes the dreaded Reynolds Pamphlet in which he provides the details of his torrid affair, which continued for a considerable time with her husband’s “knowing consent,” in order to defend against an accusation that the payments to her husband involved “illegal speculation” or misuse of money from the federal treasury, over which he then presided.

Now we could just sympathize with Hamilton—“I hadn’t slept in a week, I was weak, I was awake, you never saw a bastard orphan more in need of a break”—or we could see an age-old lesson in his failure to “say no to this.” His failure to say no was exactly that—his failure—and he and his wife (oh, “Burn” is so very sad) pay the harsh consequences.

It’s a simple lesson, really, but one that American courts cannot seem to grasp. Instead, they penalize the women the men cannot resist—even when there is no affair, nor even any tempting conduct on the woman’s part. But if a man finds her irresistible, or his wife is afraid he will, he can just fire her to alleviate the problem. And even though he would never fire a male employee based on attractiveness, this, somehow, is not sex discrimination.

The Story of Her Night

In a recent case, Edwards v. Nicolai, a New York trial court held that a woman who was allegedly fired by a male boss because she was “too cute” and causing his wife to be jealous had not alleged facts amounting to unlawful sex discrimination. Dilek Edwards worked as a yoga and massage therapist at Wall Street Chiropractic and Wellness, located in the heart of the financial district and presumably serving a high-end clientele. Charles Nicolai co-owned the business with his wife, Stephanie Adams. Adams is the chief operating officer, but Nicolai oversees all the chiropractic and therapeutic services.

According to the facts alleged in her complaint (which is all we have at this stage of the litigation), Dilek Edwards never received anything but praise about her work from Nicolai. They had a strictly professional relationship, but, nonetheless, Nicolai warned her in June 2013 that his wife might turn jealous because Edwards was “too cute.” Edwards had met Adams only once, in a cordial encounter.

Four months later, however, Edwards noticed a missed call on her phone from Adams—at 1:15 a.m. Fifteen minutes later, Edwards received a text from Adams, that she described as “out of the blue.” The text said Adams wanted to make it clear to Edwards that “[y]ou are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [F. . .] away from my husband and family!!!!!! And remember I warned you.” In case her message wasn’t entirely clear, Adams followed up the next day with an e-mail, which stated “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.” When Edwards tried to call the office, she learned that her number was blocked. She was unable even to collect her personal belongings from the office. Edwards alleged there was insult added to injury. Adams filed a complaint with the police, alleging that Edwards made threatening phone calls and threatened to come to the office.

That Would Be Enough

Edwards sued alleging sex discrimination—she was fired because she was a woman—and defamation, on the theory that Adams’s complaint to the police was patently false. The defamation claim will proceed to trial, where Edwards will have the opportunity to prove the facts she alleged, but the discrimination claim was dismissed outright. What the court’s ruling means, in effect, is that even if everything she says is true, she has not alleged unlawful discrimination. How could that be so?

The case was brought under state and local discrimination laws, both of which make it unlawful for an employer to fire someone because of sex. The court notes that both provisions are directed to be “construed liberally” in order to achieve the statutory purpose of prohibiting discrimination. Discrimination pleadings are to be judged by a relaxed standard, one that requires only that the plaintiff give “fair notice” of the nature of the claim and its factual grounds.

So while it’s possible this case was dismissed for inadequate pleadings—it’s hard to tell without having access to the complaint—it doesn’t seem likely. The real crux of the court’s decision to dismiss the discrimination claim is that it did not believe firing a female employee for being “too cute”’—and triggering wifely jealousy—is discriminatory.

The Office Where It Happens

On the merits, the New York court relied on cases from other jurisdictions, some of which seem patently irrelevant because they involved jealousy arising out of affairs or sexual favoritism complaints by other employees about conduct arising out of intra-office affairs. But there was no affair here—just a man who thought his marriage might be jeopardized by his employment of a cute female employee.

The court relied on one case with strikingly similar facts—Nelson v. Knight, a 2013 case in which the Iowa Supreme Court held that a dentist could lawfully fire a female hygienist who posed, he argued, an “irresistible attraction” whose very presence might incite him to commit sexual harassment and perhaps, ultimately, cost him his marriage. There, as in the recent New York case, there was no allegation of any sexual relationship between the dentist and the hygienist. There was some sexual innuendo—entirely on the part of the dentist—and a lot of innocuous talk of children and their activities. The dentist complained her clothing was distracting; she says she wore nothing but medical scrubs. He told her to look for his bulging pants to know whether her clothes were too distracting and texted her once to ask how often she experienced orgasms. The hygienist did not complain, but neither did she reciprocate.

The dentist’s wife discovered some of her husband’s texts and became jealous. She demanded that the hygienist be fired, and the family’s pastor agreed. The dentist followed their advice because he feared that he was getting too attached to the hygienist and that he would try to have an affair with her. Note that none of this had to do with the hygienist, her performance at work, or even her behavior at all. This all arose from a simple fact: the hygienist was an attractive woman. There is no question that if she had been male—even a very handsome male—she would not have been fired from her job of ten years. Yet, the Iowa Supreme Court held that no discrimination had occurred. In the initial opinion, it gave a variety of explanations for this holding—drawing on a variety of irrelevant doctrines. Perhaps in response to criticism in the media (my take on that opinion is here), the court withdrew the opinion and substituted an opinion with the same outcome, but a more spare (but no more convincing) set of reasons.

The New York court in Edwards’s case reached the same conclusion—though without the benefit of any factfinding or much reasoning. The court simply said that she had no provided any evidence that she was treated differently from male employees. Of course, that isn’t the standard under local, state, or federal antidiscrimination laws. The standard is that she was subjected to an adverse action “because of sex.” There is no comparator requirement. The “because of sex” requirement can be satisfied by proof that she would not have been treated the same way if she was male. It seems pretty obvious here that that standard is met—or at least could be met after full airing of the facts—but certainly Edwards should have been the opportunity to prove it at trial.

The court continued, noting that “[t]here is no allegation . . . that the plaintiff was terminated because of her status as a woman.” Yet the essence of her complaint was that she was fired because she was too cute and that made her boss’s wife jealous. In what universe does that not relate to the fact that she is a woman? The court claims it could find no case “which holds that a termination motivated by spousal jealousy alone constitutes gender or sex based discrimination. . . .” That may be true, but that doesn’t make its holding right.

Courts Refuted

Perhaps what courts need is some help in understanding why these cases are sex discrimination, pure and simple—like Alexander Hamilton provided in a 60,000 word (handwritten!) rebuke to the farmer who spoke against revolution and in praise of the king. And the New York court needs to be “refuted” for reliance on an out-of-state case that was itself incorrectly decided and poorly reasoned (and for reliance on the cases arising from entirely different and distinguishable sets of facts).

First, cases on “sexual favoritism” are not relevant to cases of “spousal jealousy.” (One mistake that the Iowa court made in Nelson v. Knight.) Sexual favoritism occurs when a supervisor is engaged in a consensual, romantic relationship with a subordinate and provides her with benefits, or protects her from employment detriments, because of the relationship. Although this seems unfair, especially to other subordinate employees who are losing out on the perks of sleeping with the boss, courts have largely agreed that this is not “because of sex” vis-à-vis the adversely affected employees unless it is sufficiently widespread to change the entire tenor of the workplace. (A typical case in which sexual favoritism was found actionable is discussed here.)

But saying that an employee having an affair with the boss can be treated more favorably than other employees is not the same thing as saying that employee can be punished because the relationship may have triggered personal jealousy. Moreover, sexual favoritism claims are never brought by the subordinate having the affair—but by her co-workers who resent the unfairly favorable treatment.

More importantly, none of this is even conceivably relevant to a case when the employee treated adversely was not involved in a consensual sexual relationship with her boss. Again, there is no allegation that Edwards was involved with Nicolai.

Second, discrimination law squarely protects employees from harassment, especially strongly from harassment by supervisors who have power over them. If Nicolai had harassed Edwards because she was cute, we would have no trouble concluding that this occurred because of sex. The law is clear that if a man is motivated to harass a woman because of heterosexual desire, then he is discriminating against her on the basis of sex. (The law would say likewise about a homosexual supervisor who harassed a subordinate of the same sex. In either case, the targeted employee has had the terms and conditions of his or her employment altered because of sex.)

If a supervisor’s sexually harassing an employee constitutes sex discrimination, why doesn’t his firing her to stop himself from sexually harassing her—or persuade his wife he would not harass her—constitute discrimination as well? In either case, a similarly situated male dental assistant would not find himself subjected to such consequences. If the New York and Iowa courts were right, then could a man with a very jealous wife be excused for having a “No women in the office” policy? After all, we don’t know which one will be the Mariah Reynolds who successfully lures her boss into her bed.

Third, the Supreme Court held decades ago that “sex-plus” discrimination is actionable discrimination because of sex. That is, a policy or action that discriminates against a subset of a protected class—women with preschool age children in the relevant case, Phillips v. Martin-Marietta Corp.—is tantamount to discrimination against the protected class. Thus, it should not have been relevant to the Iowa dentist’s defense that he hired another woman to replace the hot hygienist—though the Iowa Supreme Court clearly thought it an important fact. Nor would it matter if Nicolai replaced Edwards with another female massage therapist. If in fact either man discriminates only against “attractive women,”—or took adverse action against one person because she was an attractive woman—that is actionable sex discrimination. The relevant question is not whether the men would have hired another woman, but whether they would have acted similarly against an attractive man. If an employer wanted to have a policy of hiring only unattractive people, it could do so without violating any law unless the jurisdiction was one of the few with an appearance bias law.

Who Lives, Who Dies, Who Tells Her Story

The question Edwards should be permitted to pursue at trial—but will not unless she prevails on appeal—is whether she was in fact fired for being “too cute” and whether her male boss would have fired a man for the same reason.

These cases, which rely on faulty reasoning and a misunderstanding of sex discrimination law, take us back rather than forward. It cannot be the case in 2016 that a man can fire a woman because he is afraid he might touch her inappropriately—or his wife is afraid that he might. I’m waiting for a court to blow us all away with a ruling that just says no to this.