Tuesday, January 8, 2013

Sexual Jealousy Vs Sex Discrimination

Over on Justia, columnist Joanna L. Grossman has written about what she calls an "Absurd Decision on Sexual Jealousy and Employment". It appears to me, on the other hand, to be a direct reading of the laws involved against the facts involved in the case. Dr. Grossman appears to be one of those free-thinking legal minds who believes that an injured plaintiff should win even when they sue for the wrong thing.

On the other hand, Martha Zackin over at jdsupra gets her analysis right on the dot, ending with this quote -

Nevertheless, based both on precedent and the underlying purpose of anti-discrimination laws, the Court properly found that the law does not protect an employee from unfair decisions or romantic jealousy.

Richard Tuschman at jdsupra says roughly the same thing.

So, now I'll tear into Dr. Grossman's "case". Her conclusions of fact and law rather easily demonstrate her legal sloppiness and bias, and her failure to address the actual law and precedents, rather than her own preferences. I'm not sure whether she actually reviewed any of the court records and discovery documents to come to her conclusions, or whether she even bothered to read the whole ruling itself.

First, Grossman tells us that

"According to the available evidence, the in-person comments and texts of a sexual nature seemed to emanate exclusively from Dr. Knight."

Then, in the next paragraph, Grossman says this -

A comment by Nelson about infrequency in her sex life met with this retort from Knight: “That’s like having a Lamborghini in the garage and never driving it.”

Ummm. So Nelson allegedly telling Knight about infrequency in her sex life was not a comment of a sexual nature? Really? If Grossman wasn't trying to destroy her own credibility, she's managed to give it a pretty good ding getting it out of the garage.

Later, Grossman says this -

The question under Title VII—and the analogous Iowa statute under which this claim was brought—is whether Nelson was fired “because of sex.” Under the statutes the question then, is this: Would Nelson have been fired if she were a man? The answer is clearly no. In reaching the opposite conclusion, the court made a series of logical and doctrinal missteps, which I will describe below.

No, Dr. Grossman, that was not the question. That was Nelson's primary argument, on her sole count against Knight, and that argument went down in flames under years of precedents, properly read and presented by the defendant. If you would read the entire ruling, you'll see what the proper question might have been. But even adjusting your erroneous question any of several ways shows that you are wrong on both the facts and the law.

If Nelson was an attractive man, to whom Dr Knight was terribly attracted, would he/she have been fired? Yes. (Oh,and by the way, you haven't explained where you got your stereotypical idea that Dr Knight is only attracted to women. That claim does not appear to have been made or stipulated by either side in the case, nor was it decided by the Court itself in the ruling.)

If Nelson had been an unattractive woman, to whom Dr Knight was not attracted, would she have been fired? No.

If Nelson had been an attractive woman, whom Dr Knight's wife did not perceive as a threat to the marriage, would she have been fired? No.

The answer is thus clearly that Nelson was not fired because of her sex, but because of her attractiveness to Dr Knight, and more importantly, due to the personal feeling of Ms Knight that Nelson was a potential threat to the marriage.

This is not discrimination on account of sex, read per the statutory language or the tons of case law that the Court did not and cannot blithely ignore, because they are jurists, not columnists.

Notice, I'm not claiming (nor did the Court) that Knight's termination of Nelson was right or fair or even nonactionable under some other theory. It just happens to be a legal fact in the state of Iowa that firing a person because you are attracted to her and your wife is jealous is not "discrimination on account of sex."

The money quote in the Nelson V Knight Dec 21st 2012 ruling is this -

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.

Ms Grossman, if you'd like to act like a legal professional and address the actual statutes and precedents and show why the court's analysis is in error, then I'd love to read it. You can start by showing where the Court is wrong in their long discussions and application of Tenge v. Phillips Modern Ag Co 446 F.3d 903, 905–06 (8th Cir. 2006) and of Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 903–05 (11th Cir. 1990). Of course, that would mean you would have to achieve what Nelson's attorneys did not.

Again, here's the Court on Dec 21

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.

In other words, Nelson's trial and appeal lawyers, just like Dr. Grossman, blithely ignored the relevant laws and precedents involved, didn't do their homework on this specific case in this jurisdiction with these facts against these statutes and these precedents, and didn't argue their case (the word is "distinguish") sufficiently to win. That's what legal professionals call "a losing strategy".

Grossman is correct where she later notes that the facts of the case are more akin to a sexual harassment case than a sex discrimination case. Which is exactly why the Ohio Supreme Court ruled 7-0 against the plaintiff in this case on these facts regarding this law. Nelson brought her case under the wrong law and the wrong theory of that law. Which is exactly how you lose a case.

When the defendant is guilty of stealing a car, you don't charge them with stealing an airplane. That type of case won't fly!

So, the take-home message is, if you want to win a civil case, don't hire a columnist and "Distinguished Professor of Family Law" like Dr. Grossman, hire a working plaintiff's attorney. And when your attorney files your case, make sure for yourself that they have filed under every possible cause and every possible theory of damages, and ask for even your resume photocopy and Kleenex(tm) tissues and job-search expenses as damages, because they might, under some reading of the facts and some law, make the difference in whether you finally prevail.