Attractiveness can be a Protected Condition? Maybe!

Another day, another celebrity figure accused of harassment. Or worse. When does this get to be too much!

Many of the accounts reveal the abuse of power and the lack of respect shown to women.  A recent case adds another aspect to the ways in which harassment or discrimination against women may occur.

The basic facts:

  • A chiropractor hired an attractive yoga and message therapist to his office staff.
  • While he oversaw the medical aspects of the business, his wife served as the chief operating officer.
  • During the therapist’s six months of employment, she described her relationship with the doctor as professional.
  • His wife, however, was disturbed by her presence.
  • Within 3 months, the chiropractor commented to the therapist that she might be “too cute” and his wife may become jealous.
  • Three months later, the wife texted the therapist that she was no longer welcome at the office and she “should stay the @#%* away from my husband.”
  • Later that day, the chiropractor fired the therapist.

So, what happened next?

Perhaps not surprisingly, the therapist filed a gender discrimination claim.

She said her firing was motivated by sexual attraction and as such was unlawful gender discrimination.

She did not claim that she was actually harassed, but argued that it could be inferred that the discharge resulted from the chiropractor’s desire to appease his jealous wife and therefore the motivation was sexual in nature.

The discharge allegedly occurred for reasons of jealousy, not because the employee had a consensual affair with her boss.

This case was not based on the employee’s conduct, but because the therapist was sexually distracting to the doctor and disturbing to his wife.

While this case originally was dismissed, the appellate court decided to allow the therapist to pursue her claim.

The court explained that what potentially made the discharge unlawful was not that the wife had urged the firing, but the reason she urged her husband to do it and his compliance.

The therapist had not done anything inappropriate and had allegedly performed her work satisfactorily.  She now has an opportunity to overcome her status an at-will employee to prove that the motivation of the chiropractor and his wife was sexual in nature.

The court made clear that a spouse can urge a husband to fire an employee, but what makes it unlawful is the basis for the firing.  In this case, there are allegations of a gender-based motivation, which was sexual in nature.

What the court ruling suggests is that attractiveness can be a protected condition … if the person is singled out because of his/her appearance. It’s not always going to be the case, but at least here, the allegations are enough to let the case proceed.

The motivation to fire someone due to his/her appearance can be viewed as sexual in nature and therefore discriminatory.  In light of the headlines on sexual harassment, this decision adds a new dimension and another source of problems at work.

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