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Fri Dec 21, 2012, 07:12 PM

 

Iowa Court: Bosses Can Fire 'Irresistible' Workers

Source: ABC News

A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa Supreme Court ruled Friday.

The court ruled 7-0 that bosses can fire employees they see as an "irresistible attraction," even if the employees have not engaged in flirtatious behavior or otherwise done anything wrong. Such firings may be unfair, but they are not unlawful discrimination under the Iowa Civil Rights Act because they are motivated by feelings and emotions, not gender, Justice Edward Mansfield wrote.

An attorney for Fort Dodge dentist James Knight said the decision, the first of its kind in Iowa, is a victory for family values because Knight fired Melissa Nelson in the interest of saving his marriage, not because she was a woman.

But Nelson's attorney said Iowa's all-male high court, one of only a handful in the nation, failed to recognize the discrimination that women see routinely in the workplace.

Read more: http://abcnews.go.com/US/wireStory/iowa-court-bosses-fire-irresistible-workers-18038838#.UNT5UHewUso



Oh yes! Oh Lo'dy! Us menfolk have to defend ourselves from the temptresses!

I wish this was an Onion story. It is not.

73 replies, 9319 views

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Reply Iowa Court: Bosses Can Fire 'Irresistible' Workers (Original post)
Eric the Reddish Dec 2012 OP
jberryhill Dec 2012 #1
Bozita Dec 2012 #38
William Seger Dec 2012 #41
jberryhill Dec 2012 #47
cntrfthrs Dec 2012 #52
whathehell Dec 2012 #2
dballance Dec 2012 #53
Sen. Walter Sobchak Dec 2012 #3
niyad Dec 2012 #4
Kolesar Dec 2012 #13
Eric the Reddish Dec 2012 #25
Coyotl Dec 2012 #5
JimDandy Dec 2012 #17
Demeter Dec 2012 #60
bloomington-lib Dec 2012 #6
progressoid Dec 2012 #11
Mojorabbit Dec 2012 #48
seabeyond Dec 2012 #66
TheDebbieDee Dec 2012 #7
raccoon Dec 2012 #57
Jim Lane Dec 2012 #72
evlbstrd Dec 2012 #8
Sekhmets Daughter Dec 2012 #20
BlueToTheBone Dec 2012 #9
PatrynXX Dec 2012 #10
spooky3 Dec 2012 #12
rhett o rick Dec 2012 #14
happyslug Dec 2012 #15
R. Daneel Olivaw Dec 2012 #22
wordpix Dec 2012 #35
R. Daneel Olivaw Dec 2012 #40
Blasphemer Dec 2012 #51
Scairp Dec 2012 #29
Ash_F Dec 2012 #34
wordpix Dec 2012 #36
happyslug Dec 2012 #45
tanyev Dec 2012 #61
Kingofalldems Dec 2012 #16
happyslug Dec 2012 #19
Red Mountain Dec 2012 #18
R. Daneel Olivaw Dec 2012 #21
Yavin4 Dec 2012 #23
R. Daneel Olivaw Dec 2012 #24
Xipe Totec Dec 2012 #26
KT2000 Dec 2012 #27
yellowcanine Dec 2012 #28
yellowcanine Dec 2012 #30
wordpix Dec 2012 #37
TexasTowelie Dec 2012 #31
benld74 Dec 2012 #32
happyslug Dec 2012 #50
benld74 Dec 2012 #65
Ash_F Dec 2012 #33
R. Daneel Olivaw Dec 2012 #42
marble falls Dec 2012 #39
R. Daneel Olivaw Dec 2012 #44
marble falls Dec 2012 #62
cosmicone Dec 2012 #43
R. Daneel Olivaw Dec 2012 #46
cosmicone Dec 2012 #55
Xithras Dec 2012 #71
Fearless Dec 2012 #49
Frustratedlady Dec 2012 #54
tclambert Dec 2012 #56
Jefferson23 Dec 2012 #58
Sancho Dec 2012 #59
niyad Dec 2012 #63
Major Nikon Dec 2012 #64
Land Shark Dec 2012 #67
RussBLib Dec 2012 #68
samsingh Dec 2012 #69
sunnystarr Dec 2012 #70
leftyladyfrommo Dec 2012 #73

Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:15 PM

1. Well that explains why I've been fired, like, 20 times


Nobody can handle how good I look.

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Response to jberryhill (Reply #1)

Fri Dec 21, 2012, 10:19 PM

38. DUzy, for sure!

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Response to jberryhill (Reply #1)

Fri Dec 21, 2012, 10:47 PM

41. You too sexy for your briefs (n/t)

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Response to William Seger (Reply #41)

Fri Dec 21, 2012, 10:54 PM

47. I get favorable rulings on my motions!

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Response to jberryhill (Reply #1)

Sat Dec 22, 2012, 12:48 AM

52. Bravo

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:16 PM

2. Okay...Let's see how it goes when a woman fires the first MAN for being "irresistible". n/t

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Response to whathehell (Reply #2)

Sat Dec 22, 2012, 01:08 AM

53. Agreed.

Can't wait to see how the all-male Supremes in IA rule on that. I'm sure some enterprising lawyer for the plaintiff will find some technical or twisted substantive reason why the male shouldn't have been fired that they can get behind.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:19 PM

3. We had a guy ask that a new woman be fired because his wife didn't want them travelling together

He was pretty much laughed out of the room.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:21 PM

4. so their pastor said it was okay to fire this stellar employee, eh? way to go, rev, you sexist jerk

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Response to niyad (Reply #4)

Fri Dec 21, 2012, 07:42 PM

13. The Knights consulted with their pastor, who agreed that terminating Nelson was appropriate.

a nod to #8 Evilbstd's post, too

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Response to niyad (Reply #4)

Fri Dec 21, 2012, 08:45 PM

25. The Christian Version of Shariah Law

 

Women must cover themselves up, lest we have sinful thoughts. It's the same damn shit in every major religion!

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:22 PM

5. Can workers sue "irresistable" bosses

Fair is fair!

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Response to Coyotl (Reply #5)

Fri Dec 21, 2012, 08:06 PM

17. Sounds like a viable way to get out of an employment contract now.

Got 3 yrs left on your contract and you find your boss irresistable? And, coincidentally, you have a job offer that pays you double? Lawrdy, lawrd, what should you do?

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Response to Coyotl (Reply #5)

Sat Dec 22, 2012, 09:11 AM

60. Better to marry than burn--St. Paul, Corinthians

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:25 PM

6. if it wasn't already, that'll be an awkward office to work in

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Response to bloomington-lib (Reply #6)

Fri Dec 21, 2012, 07:35 PM

11. To the rest of the employees: You are resistible.



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Response to bloomington-lib (Reply #6)

Fri Dec 21, 2012, 10:56 PM

48. I know right!

If my husband found someone so irresistible he could not keep his thoughts off her then marriage counseling or divorce might be in order.

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Response to Mojorabbit (Reply #48)

Sat Dec 22, 2012, 11:57 AM

66. you know. it is not like i really NEED to be married. he could just go his own way. nt

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:26 PM

7. Is Iowa a "Right-to-Work" state?

If so, this yahoo could/should have fired the assistant without giving a reason!
To fire someone for no reason is better than firing someone for a half-assed reason.

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Response to TheDebbieDee (Reply #7)

Sat Dec 22, 2012, 08:02 AM

57. THANK YOU. nt

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Response to TheDebbieDee (Reply #7)

Sat Dec 22, 2012, 11:48 PM

72. That's "employment at will" not "right to work"

Employment at will is the law in most of the U.S. It means that the employee can be fired for a good reason, a bad reason, or no reason at all, unless one of the exceptions is applicable.
*One exception is for certain bad reasons that are forbidden, notably race, sex, religion, ethnic origin, and, in a handful of enlightened jurisdictions, sexual preference.
*Another exception is for contracts: a collective bargaining agreement, an individual contract between the employer and the employee, or an employee manual that describes reasons and/or procedures for dismissal and functions as a contract.

A "right to work" law is really an "abridgment of the right of contract" law. It means that collective bargaining agreements may not contain provisions under which employees who aren't union members make payments to support the union activities that benefit them. These provisions are illegal even if the contracting parties freely agree to them.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:27 PM

8. It's the same rationale for the bhurka, isn't it?

The men can't control themselves so they require the women to hide themselves.

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Response to evlbstrd (Reply #8)

Fri Dec 21, 2012, 08:29 PM

20. Exactly.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:27 PM

9. Well, alrighty then. n/t

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:30 PM

10. hmmmm

so should Fox Fired Sarah Palin because someone finds that she might ruin a marriage...

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:36 PM

12. So the dentist would have been equally likely to find a man attractive?

This court's reasoning reminds me of the old "we're not discriminating against women, we're discriminating against 'pregnant persons'" argument that Congress stopped with the Preg. Discrimination Act.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:55 PM

14. So the dentist is saying, "I am so very weak, that I wouldnt be able to control myself."

And the males in the court all agreed.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:56 PM

15. actual Opinion

http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20121221/11-1857.pdf

She was a ten year employee and they were exchanging text messages, the facts are intersting and may be the reason for the decision. The Section of the opinion in regards to the facts:

Because this case was decided on summary judgment, we set forth the facts in the light most favorable to the plaintiff, Melissa Nelson.
In 1999, Dr. Knight1 hired Nelson to work as a dental assistant in his dental office. At that time, Nelson had just received her community college degree and was twenty years old.
Over the next ten-and-a-half years, Nelson worked as a dental assistant for Dr. Knight. Dr. Knight admits that Nelson was a good dental assistant. Nelson in turn acknowledges that Dr. Knight generally treated her with respect, and she believed him to be a person of high integrity.
On several occasions during the last year and a half when Nelson worked in the office, Dr. Knight complained to Nelson that her clothing was too tight and revealing and “distracting.” Dr. Knight at times asked Nelson to put on her lab coat. Dr. Knight later testified that he made these statements to Nelson because “I don’t think it’s good for me to see her wearing things that accentuate her body.” Nelson denies that her clothing was tight or in any way inappropriate.
2
During the last six months or so of Nelson’s employment, Dr. Knight and Nelson started texting each other on both work and personal matters outside the workplace. Neither objected to the other’s texting. Both Dr. Knight and Nelson have children, and some of the texts involved updates on the kids’ activities and other relatively innocuous matters. Nelson considered Dr. Knight to be a friend and father figure, and she denies that she ever flirted with him or sought an intimate or sexual relationship with him.
Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going. Dr. Knight also recalls that after Nelson allegedly made a statement regarding infrequency in her sex life, he responded to her, “hat’s like having a Lamborghini in the garage and never driving it.” Nelson recalls that Dr. Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. However, Nelson does not remember ever telling Dr. Knight not to text her or telling him that she was offended.
In late 2009, Dr. Knight took his children to Colorado for Christmas vacation. Dr. Knight’s wife Jeanne, who was also an employee in the dental practice, stayed home. Jeanne Knight found out that her husband and Nelson were texting each other during that time. When Dr. Knight returned home, Jeanne Knight confronted her husband and demanded that he terminate Nelson’s employment. Both of them consulted with the senior pastor of their church, who agreed with the decision.
Jeanne Knight insisted that her husband terminate Nelson because “she was a big threat to our marriage.” According to her affidavit and her deposition testimony, she had several complaints about Nelson. These included Nelson’s texting with Dr. Knight, Nelson’s clothing, Nelson’s alleged flirting with Dr. Knight, Nelson’s alleged coldness at work toward her (Ms. Knight), and Nelson’s ongoing criticism of another dental assistant. She added that “ liked to hang around after work when it would be just her and there. I thought it was strange that after being at work all day and away from her kids and husband that she would not be anxious to get home like the other in the office.”
At the end of the workday on January 4, 2010, Dr. Knight called Nelson into his office. He had arranged for another pastor from the church to be present as an observer. Dr. Knight told Nelson he was firing her, reading from a prepared statement. The statement said, in part, that their relationship had become a detriment to Dr. Knight’s family and that for the best interests of both Dr. Knight and his family and Nelson and her family, the two of them should not work together. Dr. Knight handed Nelson an envelope which contained one month’s severance pay. Nelson started crying and said she loved her job.
Nelson’s husband Steve phoned Dr. Knight after getting the news of his wife’s firing. Dr. Knight initially refused to talk to Steve Nelson, but later called back and invited him to meet at the office later that same evening. Once again, the pastor was present. In the meeting, Dr. Knight
told Steve Nelson that Melissa Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve Nelson that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.
Dr. Knight replaced Nelson with another female. Historically, all of his dental assistants have been women.
After timely filing a civil rights complaint and getting a “right to sue” letter from the Iowa Civil Rights Commission, Nelson brought this action against Dr. Knight on August 12, 2010. Nelson’s one-count petition alleges that Dr. Knight discriminated against her on the basis of sex. Nelson does not contend that her employer committed sexual harassment. See McElroy v. State, 637 N.W.2d 488, 499–500 (Iowa 2001) (discussing when sexual harassment amounts to unlawful sex discrimination and restating the elements of both quid pro quo and hostile work environment sexual harassment). Her argument, rather, is that Dr. Knight terminated her because of her gender and would not have terminated her if she was male.
Dr. Knight moved for summary judgment. After briefing and oral argument, the district court sustained the motion. The court reasoned in part, “Ms. Nelson was fired not because of her gender but because she was threat to the marriage of Dr. Knight.” Nelson appeals.


Footnotes:
1We will refer to the defendants Dr. James Knight and James H. Knight DDS, P.C. collectively as “Dr. Knight.”

2Nelson recalls that Dr. Knight said her clothing was too “distracting” and that he “may have” asked her to put on her lab coat. In any event, she testified that she put on a coat whenever Dr. Knight complained to her about her clothing.

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Response to happyslug (Reply #15)

Fri Dec 21, 2012, 08:40 PM

22. Alright. Two things.

Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing.

and

Nelson recalls that Dr. Knight once texted her to ask how often she experienced an orgasm.



And the ISC decided to review this case? WTF is wrong with them?

I've worked with male pigs. I'm a guy BTW. I have friends that have worked with worse ones. This is the kind of crap that is really disgusting and makes for toxic work environments. The things I could tell.

All most people want to do is to have a job and not be harassed while in it.

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Response to R. Daneel Olivaw (Reply #22)

Fri Dec 21, 2012, 10:11 PM

35. I agree. It is sexual harassment, and why weren't women on that jury?

Justice was NOT done here

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Response to wordpix (Reply #35)

Fri Dec 21, 2012, 10:42 PM

40. Sickening.


I used to work with for some pigs in my time, but I never imagined that they would exist so high up as to allow such a foul ruling as they have.

Justice has been denied.

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Response to R. Daneel Olivaw (Reply #22)

Sat Dec 22, 2012, 12:46 AM

51. I never imagined the details would make the decison even MORE offensive

I hope Ms. Nelson continues to pursue this. This is clear harassment and the Iowa SC is FOS.

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Response to happyslug (Reply #15)

Fri Dec 21, 2012, 09:15 PM

29. Well I got it now

He fired her to avoid a possible sexual harassment suit and/or an expensive divorce. What a pig. Of course he terminated her for her gender, duh.

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Response to happyslug (Reply #15)

Fri Dec 21, 2012, 09:57 PM

34. Looks like sexual harassment.

Hope the woman is not out of options. If so, there needs to be legislation to correct this.

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Response to Ash_F (Reply #34)

Fri Dec 21, 2012, 10:13 PM

36. if I were her I would appeal and sue the pants off this male harasser

OTOH, she should not have been texting him about her kids, etc. after work. Maybe she thought of him as a father figure but once he went to "bulging pants" and orgasms, she should have told him, "Look buster, no more of that talk because it's sexual harassment."

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Response to Ash_F (Reply #34)

Fri Dec 21, 2012, 10:51 PM

45. A few opitions, but mostly she is done

Possible to appeal to US Supreme court or to the Federal Court under the US Civil Righs Act. The proble.. Iowa is in the 8th Circuit Court of Appeals. The Plaintiff cited a 3rd Circuit case (Philadelphia), but that was NOT binding in the 8th Circuit, then cited some 8th Federl Circuit court of appeals, and are binding on gthe Iowa Courts:;

Several cases, including a decision of the United States Court of Appeals for the Eighth Circuit, have found 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. This is true even though the relationship and the resulting jealousy presumably would not have existed if the employee had been male.

Tenge v. Phillips Modern Ag Co., like the present case, centered on a personal relationship between the owner of a small business and a valued employee of the business that was seen by the owner’s wife as a threat to their marriage. 446 F.3d 903, 905–06 (8th Cir. 2006). In that case, unlike here, the plaintiff had pinched the owner’s rear. Id. at 906. She admitted that the owner’s wife “could have suspected the two had an intimate relationship.” Id. Further, the plaintiff acknowledged she wrote “notes of a sexual or intimate nature” to the owner and put them in a location where others could see them. Id. In the end, the owner fired the plaintiff, stating that his wife was “making me choose between my best employee or her and the kids.” Id.

Reviewing this series of events, the Eighth Circuit affirmed the summary judgment in favor of the defendants. Id. at 911. The Eighth Circuit first noted the considerable body of authority that “ ‘sexual favoritism,’ where one employee was treated more favorably than members of the opposite sex because of a consensual relationship with the boss,” does not violate Title VII. Id. at 908–909. The court distilled that law as follows: “he principle that emerges from the above cases is that absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.” Id. at 909.

The Eighth Circuit believed these sexual favoritism precedents were relevant. The court’s unstated reasoning was that if a specific instance of sexual favoritism does not constitute gender discrimination, treating an employee unfavorably because of such a relationship does not violate the law either.

Yet the court acknowledged that cases where the employee was treated less favorably would be “more directly analogous.” Id. The court then discussed a decision of the Eleventh Circuit where an employee had been terminated for being a perceived threat to the marriage of the owner’s son. Id. (discussing Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 903–05 (11th Cir. 1990)). It also cited three federal district court cases, each of which had “concluded that terminating an employee based on the employee’s consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment.” Id. (citing Kahn v. Objective Solutions, Int’l, 86 F. Supp. 2d 377, 382 (S.D.N.Y. 2000); Campbell v. Masten, 955 F. Supp. 526, 529 (D. Md. 1997); Freeman v. Cont’l Technical Serv., Inc., 710 F. Supp. 328, 331 (D. Ga. 1988)).

After reviewing these precedents, the Eighth Circuit found the owner had not violated Title VII in terminating the employee at his wife’s behest. As the court explained, “The ultimate basis for Tenge’s dismissal was not her sex, it was Scott’s desire to allay his wife’s concerns over Tenge’s admitted sexual behavior with him.” Id. at 910.

In our case, the district court quoted at length from Tenge, stating it found that decision “persuasive.” However, as Nelson notes, there is a significant factual difference between the two cases. As the Eighth Circuit put it, “Tenge was terminated due to the consequences of her own admitted conduct with her employer, not because of her status as a woman.” Id. The Eighth Circuit added a caveat:

The question is not before us of whether it would be sex discrimination if Tenge had been terminated because Lori perceived her as a threat to her marriage but there was no evidence that she had engaged in any sexually suggestive conduct.
Id. at 910 n.5. Nelson contrasts that situation with her own, where she “did not do anything to get herself fired except exist as a female.”3

So the question we must answer is the one left open in Tenge—whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction. Notwithstanding the Eighth Circuit’s care to leave that question unanswered, it seems odd at first glance to have the question of whether the employer engaged in unlawful discrimination turn on the employee’s conduct, assuming that such conduct (whatever it is) would not typically be a firing offense. Usually our legal focus is on the employer’s motivation, not on whether the discharge in a broader sense is fair because the employee did something to “deserve it.” Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.

In some respects, the present case resembles Platner. There a business owner chose to terminate a female employee who worked on the same crew as the business owner’s son, after the wife of the business owner’s son became “extremely jealous” of her. Platner, 908 F.2d at 903

The district court found that the son was “largely to blame for fueling jealousy,” and that the plaintiff’s conduct was “basically blameless and no different from that of the male employees.” Id. Nonetheless, the Eleventh Circuit found no unlawful discrimination had occurred:

It is evident that Thomas, faced with a seemingly insoluble conflict within his family, felt he had to make a choice as to which employee to keep. He opted to place the burden of resolving the situation on Platner, to whom he was not related, and whose dismissal would not, as firing Steve obviously would, fracture his family and its relationships. It is thus clear that the ultimate basis for Platner’s dismissal was not gender but simply favoritism for a close relative.

Id. at 905. Significantly, although Dr. Knight discusses Platner at some length in his briefing, Nelson does not refer to the decision in her briefing or attempt to distinguish it.4

Nelson does, however, have three responses to Dr. Knight’s overall position. First, she does not necessarily agree with Tenge. She argues that any termination because of a boss’s physical interest in a subordinate amounts to sex discrimination: “Plaintiff’s sex is implicated by the very nature of the reason for termination.” Second, she suggests that without some kind of employee misconduct requirement, Dr. Knight’s position becomes simply a way of enforcing stereotypes and permitting pretexts: The employer can justify a series of adverse employment actions against persons of one gender by claiming, “My spouse thought I was attracted to them.” Third, she argues that if Dr. Knight would have been liable to Nelson for sexually harassing her, he should not be able to avoid liability for terminating her out of fear that he was going to harass her.

Nelson’s arguments warrant serious consideration, but we ultimately think a distinction exists between (1) an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and (2) a decision based on gender itself. In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person. Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson’s view of the facts, Dr. Knight’s unfair decision to terminate Nelson (while paying her a rather ungenerous one month’s severance) does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson. As the Platner court observed, “ ‘e do not believe that Title VII authorizes courts to declare unlawful every arbitrary and unfair employment decision.’ ” Id. at 905 (quoting Holder v. City of Raleigh, 867 F.2d 823, 825–26 (4th Cir. 1989)).

Nelson’s viewpoint would allow any termination decision related to a consensual relationship to be challenged as a discriminatory action because the employee could argue the relationship would not have existed but for her or his gender. This logic would contradict federal caselaw to the effect that adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable under Title VII. See, e.g., Benders v. Bellows & Bellows, 515 F.3d 757, 768 (7th Cir. 2008) (holding that allegations that an employee’s termination was based on the owner’s desire to hide a past consensual relationship from his wife were “insufficient to support a cause of action for sex discrimination”); see also Blackshear v. Interstate Brands Corp., No. 10–3696, 2012 WL 3553499 at *3 (6th Cir. 2012) (affirming summary judgment for the employer where the employee presented evidence that she was treated unfairly due to her supervisor’s jealousy of her relationship with another employee, and noting that “personal animus . . . cannot be the basis of a discrimination claim under federal or Ohio law”); West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531, 544–45 (E.D. Va. 2002) (granting summary judgment to an employer when an employee was removed from a project because of a supervisor’s animosity toward the employee over her termination of their consensual relationship but there was no evidence the supervisor had made unwanted advances to the employee following the termination of that relationship).

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women?

The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989) (“As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” (citation and internal quotation marks omitted)); see also City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707, 98 S. Ct. 1370, 1375, 55 L. Ed. 2d 657, 664–65 (1978) (“It is now well recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females.”); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.”). If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.5

Nelson also raises a serious point about sexual harassment. Given that sexual harassment is a violation of antidiscrimination law, Nelson argues that a firing by a boss to avoid committing sexual harassment should be treated similarly.6 But sexual harassment violates our civil rights laws because of the “hostile work environment” or “abusive atmosphere” that it has created for persons of the victim’s sex. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 786–90, 118 S. Ct. 2275, 2283–84, 141 L. Ed. 2d 662, 675–78 (1998). On the other hand, an isolated decision to terminate an employee before such an environment arises, even if the reasons for termination are unjust, by definition does not bring about that atmosphere.
As a Michigan appellate court observed regarding a male employee’s claim that he had been subjected to sex discrimination:

We do not read the to prohibit conduct based on romantic jealousy. . . . Interpreting the CRA’s prohibition of discrimination based on sex to prohibit conduct based on romantic jealousy turns the CRA on its head. The CRA was enacted to prevent discrimination because of classifications specifically enumerated by the Legislature and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. It is beyond reason to conclude that plaintiff’s status as the romantic competition to the woman Vajda sought to date places plaintiff within the class of individuals the Legislature sought to protect when it prohibited discrimination based on sex under the CRA.

discrimination based on romantic jealousy. Plaintiff did not claim and the evidence did not establish that plaintiff was required to submit to sexually-based harassment as a condition of employment. Nor did the evidence presented at trial support a theory of gender-based discrimination. Plaintiff established, at most, that Vajda’s alleged adverse treatment of plaintiff was based on plaintiff's relationship with Goshorn, not plaintiff's gender. Vajda may have had a romantic purpose in initially pursuing Goshorn and may, as the trial court surmised, have intended to eliminate plaintiff so that he could pursue Goshorn’s affections. However, Vajda’s alleged harassment was not conduct that is proscribed by the CRA because it was not gender-based. Indeed, if Vajda’s motive was to win the affection of Goshorn, it would not matter if the person Vajda perceived to be standing in his way was male or female. As such, it is evident that plaintiff’s gender was not the impetus for Vajda’s alleged conduct, but rather was merely coincidental to that conduct.

Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 74 (Mich. Ct. App. 2001) (citations and footnotes omitted); see also Huffman v. City of Prairie Vill., 980 F. Supp. 1192, 1199 (D. Kan. 1997) (“Plaintiff suggests that the actions taken by Lt. Young as a result of Lt. Young’s beliefs concerning plaintiff’s relationship with another police officer constitute gender discrimination because such actions would not have been taken against plaintiff but for her gender. We cannot agree with plaintiff’s expansive definition of discrimination based upon sex.”); Bush v. Raymond Corp., 954 F. Supp. 490, 498 (N.D.N.Y. 1997) (“

laintiff’s discriminatory discharge claim fails insofar as it asserts that plaintiff was discharged because of Rusnak’s perception that plaintiff and Sawyer had a sexual relationship.”). Our decision today is consistent with these authorities.



FOOTNOTES:
4When asked about Platner at oral argument, Nelson’s counsel offered fair criticism of some of the language used in the opinion. See Platner, 908 F.2d at 903 n.2.
Our research has found one case, not cited by the parties, where the court arguably found the lack of an actual consensual relationship to be significant. In Mittl v. New York State Division of Human Rights, the complaining witness alleged she was unlawfully terminated due to her pregnancy. 794 N.E.2d 660, 662 (N.Y. 2003). The employer, an ophthalmologist, denied the discrimination and indicated he fired the employee because of the insistence of his wife who “began displaying extreme animosity toward Rivera–Maldonado, even questioning whether was the father of the child.” Mittl v. N.Y. State Div. of Human Rights, 741 N.Y.S.2d 19, 20 (App. Div. 2002), rev’d, 794 N.E.2d at 660. The intermediate appellate court overturned the agency finding of pregnancy discrimination, concluding the employer “was forced to choose between keeping his secretary on the payroll and saving his marriage.” Id. However, the New York Court of Appeals found that substantial evidence supported the agency finding that the employer had discriminated based on pregnancy. See Mittl, 794 N.E.2d at 663. That court noted, among other things, that the employer had told the complainant her pregnancy was “becoming a problem” in the office. Id. The court added that certain cases cited by the intermediate court were “inapposite” because they involved situations where plaintiffs “were terminated in the aftermath of consensual sexual relationships with their employers” whereas here “neither party alleges that the termination had anything to do with an actual sexual relationship between the parties.” Id. at 664. Notwithstanding this language in the court’s opinion, we do not believe Mittl ultimately has any bearing on the present case because there was substantial evidence in Mittl that the employer had engaged in unlawful, pregnancy-based discrimination, regardless of whether a consensual relationship existed.


5 As we have noted above, Ms. Knight said that she thought it was “strange that after being at work all day and away from her kids and husband that would not be anxious to get home like the other in the office.” Viewed in isolation, this statement could be an example of a gender-based stereotype. However, as with Ms. Knight’s other comments regarding Nelson, this statement was linked to a specific concern about Nelson’s relationship with her husband. This statement immediately followed Ms. Knight’s claim that Nelson “liked to hang around after work when it would be just her and there.” Viewing the summary judgment record, we come to the same conclusion as the district court: There is no genuine issue of material fact that the reason for Nelson’s firing was Ms. Knight’s demand that she be fired, which was based in turn upon Ms. Knight’s perception that the relationship between Dr. Knight and Nelson was a threat to the marriage.

6Allegedly, Dr. Knight told Nelson’s husband that he “feared that he would try to have an affair with her down the road if he did not fire her

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Response to Ash_F (Reply #34)

Sat Dec 22, 2012, 09:12 AM

61. Yep. And you know sexual harrassment is always the fault of the victim.


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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 07:58 PM

16. Looks like he hired her and the wife

demanded she be fired.

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Response to Kingofalldems (Reply #16)

Fri Dec 21, 2012, 08:25 PM

19. After working for the Dentist for ten years AND exchanging texts messages

n/t

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 08:20 PM

18. So help me here....

Having lived and worked in 'right to work' (which is a ridiculous misrepresentation, I get it) states my entire life I just don't understand how it works elsewhere.

What happens in states that aren't 'right to work'?

If an employee is unjustly (in their opinion) terminated can they sue and do they typically have much success?

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 08:31 PM

21. Are you F@CKIN kidding?


Who is seated on the ISC?????

How can you have a unanimous decision based on how a person looks??!! This ruling leads to all kinds of instances where somebody can be fired for how they appear or the excuse of how they appear.

This kind of precedent is extremely dangerous, sexist and pushes Iowa back into the 1960s or earlier.

Do they consider a victim of rape as the perpetrator depending on how she is dressed? It sounds like they are a few steps away from that language.

This is the "She had it coming" defense that was used so often back in the dark ages before the women's rights movement.


I hope that this is headed for the SCOTUS.


What a shame.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 08:40 PM

23. This Is Why People Form Unions: Stopping Discrimination and Arbitrary Firing

Without a union, you have 0 protection on the job. Zero.

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Response to Yavin4 (Reply #23)

Fri Dec 21, 2012, 08:41 PM

24. I couldn't agree with you more.


This ruling is horrible for all of us.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 08:52 PM

26. Simply, Irresistible...

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:06 PM

27. my old dentist's wife

takes the irresistable worker (IW) into her office for a little chat. The IW comes out crying and conducts herslef in a way that the wife would approve.
The cooty old dentist can't resist himself so the wife takes charge.
They are what I would call hyper-religious people.
I found a new dentist - not because I am irresistable but when I heard about that it gave me the creeps.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:14 PM

28. Why can't the dentist just medicate himself with saltpeter on days when the woman is there?

Why should she be responsible for his overactive libido/imagination?

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:17 PM

30. I suspect this is headed to Federal Court.

At least it should be. This is unlawful discrimination, not to mention sexual harassment on the part of the dentist, if the details of the story are true, regardless of what the old farts on the ISC say.

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Response to yellowcanine (Reply #30)

Fri Dec 21, 2012, 10:15 PM

37. not to mention that ISC is nothing but men! Not a jury of her peers

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:42 PM

31. Beware of the succubus!

She was going to suck the life out of that dentist. And his wallet.

Nelson's attorney had to base his case on "family values" since the dentist won't take any personal responsibility. Probability of being a Republican: 90% or more.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:48 PM

32. Ah, so WHY was she hired in the 1st place? Must have been BEFORE the WIFE saw her!

The wife KNEW why he hired her, made him fire her OR ELSE, then this. SOMETHING is missing from this story!

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Response to benld74 (Reply #32)

Sat Dec 22, 2012, 12:33 AM

50. The woman and the wife worked together for 10 years

I posted the finding of facts of the Iowa Supreme court above, and it included those facts AND that the problem started when the wife saw some text messages between the woman and the Dentist. Various excuses then were cited but those textes seem to cause the wife to see the woman as a threat.

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Response to happyslug (Reply #50)

Sat Dec 22, 2012, 11:44 AM

65. U are correct hs, I missed the post

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 09:50 PM

33. So, this woman should loose everything because a rich dentist has no self control?

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Response to Ash_F (Reply #33)

Fri Dec 21, 2012, 10:49 PM

42. This case is hauntingly familliar of cases in India where


a woman denies a man's advances then gets splashed/burned by acid for her troubles.


If you think it's a stretch think about it for a while.

The man can't control himself so the woman gets the shaft.


Age old bullshit.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 10:30 PM

39. How about an "irressistable attraction" defense for, say. rapists????

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Response to marble falls (Reply #39)

Fri Dec 21, 2012, 10:50 PM

44. Yeah. I guess there was a bong party in the ISC chambers or something to that level.


These guys must have either been drunk or out of it...or just plain fucking stupid to make such a ruling.

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Response to R. Daneel Olivaw (Reply #44)

Sat Dec 22, 2012, 10:57 AM

62. So much for the party of personal responsibility. I read today about some of his comments over .....

the years and he was lucky he wasn't sued for a hostile work environment.

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 10:50 PM

43. I don't particularly have a problem with terminating her

but the guy is an ass for not giving a valued employee who worked for him for 10 years only one month's severance. He should have given her at least a year's severance and continued insurance benefits for a year because she was terminated without any fault of her own.

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Response to cosmicone (Reply #43)

Fri Dec 21, 2012, 10:53 PM

46. "I don't particularly have a problem with terminating her."

Could you explain that a little more?

Can you just terminate somebody just because? I don't live in a right to work state (what a BS phrase) so I am not sure of what horrors await those who work there.

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Response to R. Daneel Olivaw (Reply #46)

Sat Dec 22, 2012, 02:32 AM

55. Sure

If he was truly starting to get attracted to her, it had become an oppressive work environment for him and he had to function in order to keep himself and the rest of his employees keep their jobs.

Also, if it was causing marital difficulties (his wife was probably nagging him or threatening divorce) he was justified in doing what he did.

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Response to R. Daneel Olivaw (Reply #46)

Sat Dec 22, 2012, 07:50 PM

71. This really doesn't have much to do with right-to-work states...

...other than the fact that a union can protect you from these kinds of abuses. Even here in California, where I live, any at-will employee can be fired without notice for any reason whatsoever. Only union workers, and workers with contracts specifying terms for termination, have any recourse. The only exception, of course, are terminations for legally protected reasons (i.e., you can't fire someone because they're black, or female, etc.)

I hate to say it, but a California judge would have probably made the same ruling. "Pretty" is not a protected class.

On the other hand, it seems like she has a iron-clad sexual harassment case against the guy, so I'm not sure why she isn't pursuing that route. He apparently told her not to dress too sexy around the office, and when she asked what "too sexy" meant, he said that if she saw a "tent in his pants", it was too sexy. UMM....HELLO?!?!?! Can you say Hostile Work Environment?

It sounds to me like this lady really just needs a better lawyer. He pursued a longshot case when she's got a sure-thing sitting right there!

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Response to Eric the Reddish (Original post)

Fri Dec 21, 2012, 11:17 PM

49. So the court said that gender has no basis in attraction legitimacy?

I'm sure the fundies will like that one!

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 01:35 AM

54. I'm just curious if the wife chose the patients, so they didn't interfere with their marriage?

In the first place, if the man can't control his urges and keep his pants flat when he views his assistant, then I can't imagine his marriage is that strong, anyway. If he was so smitten with her that he had to go to court to get her out of his vision, legally, why would his wife even want him around?

Why would his patients continue to use his services? I mean, a woman is in a pretty compromising position when she's having her mouth worked on. It isn't as though you can yell with a mouth full of cotton rolls.

Sheesh!

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 06:56 AM

56. I thought gays getting married was the big threat to marriage.

So it's really attractive women? Huh.

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 08:13 AM

58. 9 out of 10 Dentists recommend you end your practice of dentistry..asshat. n/t

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 08:26 AM

59. Hmmm...does this mean my wife has to approve the coeds who enroll in my classes?

Maybe the cute ones will have to take a distance learning class!!

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 11:05 AM

63. given the dentist's comments about "you make my pants bulge" and others, sounds like he fired

his assistant just ahead of her being able to file sexual harassment charges against him, or would that not fly in this clearly backward state (my apologies to iowans on this board)

welcome to DU, by the way

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 11:33 AM

64. Workers without a contract can be fired for anything that falls outside of illegal discrimination

That's why we need unions to the maximum extent possible.

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 01:47 PM

67. At will employment = Fired for any reason, for no reason, or even for an immoral reason,...

as long as it's not for an ILLEGAL reason.

The problem here is with at will employment law generally, or the lack of sufficient scope in discrimination protections (which constitute the "illegal" reasons that are the exception to the rule of at will employment)

It's a possible fact that the Iowa Supreme Court realized "oh man, that's really unfair and unjust" but even if they did, that would not save the case for the plaintiff. You need more than unfair and unjust to win, unfortunately.

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 03:00 PM

68. Show me a picture of her!!

I appreciate hot women.

RussBLib

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 03:27 PM

69. this is sooo stupid

more repug workings?

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Response to Eric the Reddish (Original post)

Sat Dec 22, 2012, 07:32 PM

70. I'm too sexy for my job ...

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Response to Eric the Reddish (Original post)

Sun Dec 23, 2012, 06:23 AM

73. That makes me feel so much better about getting fired.

I was just too sexy for my job. Just too much for the men around me to handle.

Lord, Lord.

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