Jason Atchley : In-House : Are Some Workers “Too Cute” to Employ?

jason atchley

Are Some Workers “Too Cute” To Employ?

 

Rebekah Mintzer, Corporate Counsel

February 19, 2014    |0 Comments
 
Is it legal to fire an employee for being “too cute”? According to court documents, that’s exactly what allegedly happened to yoga instructor and massage therapist Dilek Edwards, who was fired from her job at Wall Street Chiropractic and Wellness in New York City because, she claims, she may have simply been too good-looking for her boss and his jealous wife.
Edwards filed her claim against the husband and wife co-owners of Wall Street Chiropractic and Wellness, Charles Nicolai and Stephanie Adams, citing sexual harassment, gender discrimination and unlawful termination of employment—violations under New York State and New York City Human Rights Law. Nicolai and Adams fired back, asserting that “allegations of spousal jealousy do not give rise to gender discrimination claims.”
According to the account in Edwards’ filing, she began work at the office in April 2012, and the rapport between her and Nicolai was “strictly professional,” although Nicolai once told her that his wife might become jealous of her because Edwards was “too cute.” Adams, who Edwards claims she only met in person once, apparently sent her an angry text message in October 2013 asking her to stay away from Nicolai and from the office.
Edwards was fired soon after.
Keisha-Ann Gray, a partner at Proskauer Rose and cohead of the firm’s Employment Litigation and Arbitration Group, told CorpCounsel.com that she doesn’t see a case like this getting too far. “Being attractive is not going to fall under the umbrella of gender discrimination,” said Gray.
She said that calling Edwards “too cute” was an evaluation based not on her gender, but on her level of physical attractiveness. Unlike gender, race and other traits, physical attractiveness is not a protected characteristic under Title VII of the Civil Rights Act of 1964.
“This concept of whether attractiveness should become a protected characteristic is constantly coming up every couple of years,” said Gray, but she doesn’t see it gaining legally protected status anytime soon, since beauty is both subjective in the eye of the beholder as well as mutable. Other protected characteristics, she noted, are for the most part objective and unchangeable.
The case is reminiscent of a well-publicized employment case that was decided in Iowa in 2013, where the state’s supreme court struck down sexual harassment and discrimination claims filed by a dental assistant whose boss fired her because he found her to be “irresistible” and was afraid he would cheat on his wife with her if they continued working together.
Maria Greco Danaher, shareholder at Ogletree Deakins, told CorpCounsel.com that the Iowa case was also about attractiveness, but it was different in that the case contained specific allegations about how the relationship between the dentist and his assistant was having an “adverse effect” on the dentist’s marriage.
“Then the court extrapolated from that and said because it was based on emotion, not on gender, it didn’t violate that statute,” said Danaher.
According to Gray, the best way for in-house attorneys to lessen the volume of hiring and firing related suits like the ones in New York and Iowa is to keep careful track of employee behaviors and performance. “Document it in real time, don’t document it after you get the lawsuit,” she said. “Document your reasons for taking any employment action, positive or negative.”
While it’s hard to prevent disgruntled employees from taking initial legal action, she added, good solid documentation will help stop actions from proceeding very far, as opposing attorneys will realize that they don’t have much of a case.
 

 

 
Posted by at 11:41 AM 

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