The Law Behind the 'Irresistible Employee' Ruling

The Internet is abuzz about this decision from the Iowa Supreme Court. As the headlines have it, a dentist fired his assistant because he found her too attractive, and the court said that this was a perfectly fine thing to do.

The facts of the case are a little more complicated than that, and the underlying law might not say what most people think it says.

The woman had worked for the dentist for more than ten years. The dentist's wife became concerned about her for a variety of reasons, including text messages exchanged between the dentist and the assistant outside of work hours. (You can click the link above to get the details, but the dentist made several sexually charged comments in those texts. In the lawsuit, the woman did not allege these comments constituted sexual harassment.) Also, both the dentist and his wife thought the woman wore inappropriate clothing to work, though the woman denies she did. The dentist's wife further told the court that the woman would hang around the office with her husband after work hours.

The wife asked the dentist to fire the woman, and he did. He told the woman that she was a great assistant, but that he feared he was becoming too attached to her.

Is this fair? Considering the dentist was the party with power, the party sending texts with sexual comments in them, and the party whose responsibility it was not to step outside the marriage in question, it's quite easy to make a case that it's not.

But is it illegal? In general, bosses have wide latitude when it comes to firing employees; in the absence of contractual language to the contrary, only in specific situations can a firing be illegal. The lawsuit alleged that the termination amounted to sex discrimination, which is one of those situations.

Unanimously, the court upheld a previous decision that this was not sex discrimination. The dentist didn't fire the woman specifically because of her gender -- though obviously he did fire her for a reason that could not have existed were her gender the opposite of what it was.

That may sound like splitting hairs. But, as the court notes, there's no law against firing people for reasons that stem from consensual personal relationships.

Imagine, for example, that the dentist's assistant was a man, and the dentist's wife got angry because this man kept getting her husband into trouble at bars after work. Firing this male assistant would almost certainly be legal -- and it certainly wouldn't be sex discrimination. Arguably, it would be odd for the law to allow this firing but not the firing actually at issue, simply because the latter involves romantic concerns about the relationship instead of non-romantic ones.

Similarly, at the risk of sounding a bit ridiculous: If the dentist were bisexual, switching the woman's gender would not preclude the possibility of a romantic relationship, and ergo there would be no case to be made that sex discrimination had occurred -- even though the motivation for the firing would have been exactly the same.

The court cites some precedents in support of the notion 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." Interestingly, the opposite form of preference -- where a boss prefers an employee with whom he has a sexual relationship -- has been held not to constitute sex discrimination too.

A supporter of aggressive antidiscrimination laws, of course, might suggest numerous changes to the law -- up to and including the prohibition of all firings for reasons other than performance. But that's not the law the court was charged with interpreting.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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