Violet Crown Posted December 25, 2012 Share Posted December 25, 2012 Not a lawyer, but a few things that I thought I did understand about employment law: At-will employment has no bearing on the case if she was suing for illegal discrimination. As others have observed, there are protected categories. Since this was a suit in a state court, I assume it was under state employment discrimination law, not the federal Civil Rights Act. It may be her next move is filing in federal court. Surely firing someone because you're sexually attracted to them, if you're only sexually attracted to that one sex, is discrimination based on sex. It seems beside the point that he replaced her with another woman. Just like you can't fire black employees that you find "uppity" and claim it's not racial discrimination because you hire another black employee with an attitude you find suits you better in a black person. The gender discrimination here seems very straightforward: if she had been a man, he wouldn't have fired her. I'm guessing a federal court would take that "but-for" route. Quote Link to comment Share on other sites More sharing options...
elizabeth Posted December 25, 2012 Share Posted December 25, 2012 Not a lawyer, but a few things that I thought I did understand about employment law: At-will employment has no bearing on the case if she was suing for illegal discrimination. As others have observed, there are protected categories. Since this was a suit in a state court, I assume it was under state employment discrimination law, not the federal Civil Rights Act. It may be her next move is filing in federal court. Surely firing someone because you're sexually attracted to them, if you're only sexually attracted to that one sex, is discrimination based on sex. It seems beside the point that he replaced her with another woman. Just like you can't fire black employees that you find "uppity" and claim it's not racial discrimination because you hire another black employee with an attitude you find suits you better in a black person. The gender discrimination here seems very straightforward: if she had been a man, he wouldn't have fired her. I'm guessing a federal court would take that "but-for" route. Not a lawyer? You ought to be. I would hire you in a New York minute. Quote Link to comment Share on other sites More sharing options...
StephanieZ Posted December 25, 2012 Share Posted December 25, 2012 Not a lawyer, but a few things that I thought I did understand about employment law: At-will employment has no bearing on the case if she was suing for illegal discrimination. As others have observed, there are protected categories. Since this was a suit in a state court, I assume it was under state employment discrimination law, not the federal Civil Rights Act. It may be her next move is filing in federal court. Surely firing someone because you're sexually attracted to them, if you're only sexually attracted to that one sex, is discrimination based on sex. It seems beside the point that he replaced her with another woman. Just like you can't fire black employees that you find "uppity" and claim it's not racial discrimination because you hire another black employee with an attitude you find suits you better in a black person. The gender discrimination here seems very straightforward: if she had been a man, he wouldn't have fired her. I'm guessing a federal court would take that "but-for" route. Oh, but I could and would fire any employee I felt was uppity. Another word for it would be insubordinate. If you parse that word, it pretty much means uppity, or not knowing your place, with that place being sub (below) the boss (me), and it is not only a legal grounds for termination, it is also indefensible regarding unemployment. If I've documented you being insubordinate and you repeat it, you can be fired legally and not even be eligible for unemployment insurance. In fact, it's pretty much the MOST solid grounds for firing. Jobs, in most states, and certainly in at-will states, are not a right. Just because you GET a job doesn't mean you deserve to KEEP the job. You can't be uppity, dress in a way that the boss objects to, or otherwise displease the boss(es) if you want to keep your job. That is the way it is. If you want a guaranteed job, be the boss. The fact that the female employee had been counseled to change her attire earlier on is a good element for the case. If this had been MY business, the employee would have been counseled in writing about the attire, a written dresscode put firmly in place, and she would have been fired when she failed to abide by instructions (i.e., insubordination), and she would not have even been eligible for unemployment insurance, and surely not entitled to any severance pay either. Quote Link to comment Share on other sites More sharing options...
TranquilMind Posted December 25, 2012 Share Posted December 25, 2012 'Violet Crown':Not a lawyer, but a few things that I thought I did understand about employment law: At-will employment has no bearing on the case if she was suing for illegal discrimination. As others have observed, there are protected categories. Only if she can prove the discrimination. Otherwise, the Employer argues employment-at-will and wins. Surely firing someone because you're sexually attracted to them, if you're only sexually attracted to that one sex, is discrimination based on sex. No, I don't think so, because it doesn't apply to "members of that gender" but merely to the individual. She wasn't fired because she is a woman. She was fired because he can't control himself around this attractive person and can claim at-will employment. It seems beside the point that he replaced her with another woman. Just like you can't fire black employees that you find "uppity" and claim it's not racial discrimination because you hire another black employee with an attitude you find suits you better in a black person. The proof is nonexistent. Proof of racial discrimination is almost impossible if you fire one black person for "attitude" and hire another. Clearly, it isn't racial discrimination; it is attitude (which will likely be backed up with evidence of incidents which occurred, showing substandard performance), which is not protected. The gender discrimination here seems very straightforward: if she had been a man, he wouldn't have fired her. I'm guessing a federal court would take that "but-for" route. I disagree. She is not a victim of gender discrimination, and "attractiveness" is simply not a protected category. I'm not saying I like the result. I am saying that she will have a difficult proof problem here. Quote Link to comment Share on other sites More sharing options...
TranquilMind Posted December 25, 2012 Share Posted December 25, 2012 'StephanieZ':Oh, but I could and would fire any employee I felt was uppity. Another word for it would be insubordinate. Absolutely. I have fired contractors for attitude. If you parse that word, it pretty much means uppity, or not knowing your place, with that place being sub (below) the boss (me), and it is not only a legal grounds for termination, it is also indefensible regarding unemployment. If I've documented you being insubordinate and you repeat it, you can be fired legally and not even be eligible for unemployment insurance. In fact, it's pretty much the MOST solid grounds for firing. Absolutely correct. Jobs, in most states, and certainly in at-will states, are not a right. Just because you GET a job doesn't mean you deserve to KEEP the job. You can't be uppity, dress in a way that the boss objects to, or otherwise displease the boss(es) if you want to keep your job. That is the way it is. If you want a guaranteed job, be the boss. That's true. The fact that the female employee had been counseled to change her attire earlier on is a good element for the case. If this had been MY business, the employee would have been counseled in writing about the attire, a written dresscode put firmly in place, and she would have been fired when she failed to abide by instructions (i.e., insubordination), and she would not have even been eligible for unemployment insurance, and surely not entitled to any severance pay either. Agree. This is just not a winning case for her, in my view. Quote Link to comment Share on other sites More sharing options...
TranquilMind Posted December 25, 2012 Share Posted December 25, 2012 I'm floored at the idea that they didn't see this as gender discrimination, though. My understanding is that at-will employment does not mean they can terminate employment if its due to gender, race, etc. She was not fired because she is a woman. Quote Link to comment Share on other sites More sharing options...
Violet Crown Posted December 26, 2012 Share Posted December 26, 2012 Oh, but I could and would fire any employee I felt was uppity. Another word for it would be insubordinate. If you parse that word, it pretty much means uppity, or not knowing your place, with that place being sub (below) the boss (me), and it is not only a legal grounds for termination, it is also indefensible regarding unemployment. If I've documented you being insubordinate and you repeat it, you can be fired legally and not even be eligible for unemployment insurance. In fact, it's pretty much the MOST solid grounds for firing. Jobs, in most states, and certainly in at-will states, are not a right. Just because you GET a job doesn't mean you deserve to KEEP the job. You can't be uppity, dress in a way that the boss objects to, or otherwise displease the boss(es) if you want to keep your job. That is the way it is. If you want a guaranteed job, be the boss. The fact that the female employee had been counseled to change her attire earlier on is a good element for the case. If this had been MY business, the employee would have been counseled in writing about the attire, a written dresscode put firmly in place, and she would have been fired when she failed to abide by instructions (i.e., insubordination), and she would not have even been eligible for unemployment insurance, and surely not entitled to any severance pay either. You misunderstand. My example had nothing to do with insubordination. It was about having different, and race-based, sex-based, or other-protected-category-based, performance standards for different employees. If your dislike of "uppitiness" or your dress code standards are only enforced against black or female employees, you are likely in violation of state and/or federal antidiscrimination law. Do you understood my first point, that at-will employment is superseded by antidiscrimination law? You may feel very strongly that, as the boss, you can fire an employee for any reason you please; but the law disagrees. Quote Link to comment Share on other sites More sharing options...
Violet Crown Posted December 26, 2012 Share Posted December 26, 2012 Only if she can prove the discrimination. Otherwise, the Employer argues employment-at-will and wins. This was an affirmation of summary judgment, in which the only question determined by the courts (lower and supreme) was a point of law. There was no determination as to whether the plaintiff had met a burden of proof. Nor did the appellee "argue employment at will"; which is any case a legal doctrine and not an argument. No, I don't think so, because it doesn't apply to "members of that gender" but merely to the individual. She wasn't fired because she is a woman. She was fired because he can't control himself around this attractive person and can claim at-will employment. This attractive female person. Being female is, we presume, an integral component to his attraction toward her; one which his male employees would have no danger of finding themselves complicating their working relationships with the employer. Let me put it another way: if women are more likely than men to be fired by this employer, it's still gender discrimination. Now the one thing that leads me to see this a little differently is that, on looking at the facts, this seems to have been a consensual relationship, which (I think) interferes with her arguing successfully that she was treated differently than a male employee just because of her gender. The proof is nonexistent. Proof of racial discrimination is almost impossible if you fire one black person for "attitude" and hire another. Clearly, it isn't racial discrimination; it is attitude (which will likely be backed up with evidence of incidents which occurred, showing substandard performance), which is not protected. But we were, I thought, talking about principles of law, not about how difficult a plaintiff might find it to prove their case. Surely you see that those are very different things? And you are, I believe, incorrect in thinking that only firing black employees for "attitude" (but not non-black employees) doesn't constitute racial discrimination. As for proof, I'm pretty sure the difficulty in proving this sort of thing is exactly why the employee only has to make out a prima facie case for discrimination, and then the burden shifts to the employer. Quote Link to comment Share on other sites More sharing options...
Sahamamama Posted December 26, 2012 Share Posted December 26, 2012 So, instead he should have continued acting out until she cried "sexual harassment" and sued him, or caved and ruined both their marriages in an affair? What realistic thing do you think he should have done instead? Marital counseling. Or shock therapy. As in he looks at a picture of her while he has electrodes attached to strategic body parts. He gets aroused -- zap. That would cure him. He allegedly said to her, in reference to her possibly having an infrequent sex life (with her husband), "That's like having a Lamborghini in the garage and never driving it." Just yuck. That is sexual harassment. The court's ruling is an outrage. But, FWIW, I'm trying to imagine how his wife is handling all this notoriety. And what it's doing to his business? He may have gotten off the hook with the courts, but at home and in his community, I doubt it. Quote Link to comment Share on other sites More sharing options...
Joker Posted December 26, 2012 Author Share Posted December 26, 2012 Now the one thing that leads me to see this a little differently is that, on looking at the facts, this seems to have been a consensual relationship, which (I think) interferes with her arguing successfully that she was treated differently than a male employee just because of her gender. I've read several articles and it does seem that there was a consensual friendship but nothing more. In at least one article it discussed how he sent an inappropriate text and she ignored it. He was her boss so how much freedom did she feel in not participating in friendly texts? Does any article state who started the friendly texts? I've never read anything that stated she was attracted to him. I've also read articles that stated her uniform was scrubs, so I don't know why he would state they were inappropriate. I'm not sure if it is all accurate though. She worked for him for 10 years and stated in court she was shocked by how he felt, so maybe she thought they were just friends. I don't really know anymore, but I am upset by how the court ruled. I totally get at-will employment, but you don't bring a female into your office (with your pastor present) and tell her she's fired because you find her attractive. That's just wrong. His own wife works at his office and I'm assuming he finds her attractive, yet he manages to be professional in the office. He should have found a way to do so with this woman or given her a chance to find a new job before firing her. Quote Link to comment Share on other sites More sharing options...
Sahamamama Posted December 26, 2012 Share Posted December 26, 2012 I think you have an unrealistic view of human nature. I think the wife was upset with her husband, not the woman in the office (unless she was in some way leading him on). The employee's choices were to: 1. ignore the employer's behavior (which was likely to escalate given his attraction to her), 2. get fed up and sue him for sexual harassment, 3. have an affair that ruins both of their marriages, or 4. leave and find another job. She should have done #4 on her own. He forced her to. I absolutely disagree! No, no, no! Let's say that I am the employer, and Joe is my employee. We are both married to other people. We have worked together for ten years without incident or attraction. He does great work and I have no complaints at all about his job performance. Somehow, along the way, I start becoming sexually attracted to Joe. This is MY problem to deal with, not his. If I make comments about him that are sexual, if I compare him to a car (or anything objectified), if I tell him that his clothes are too tight for MY comfort, then that is evidence that I have issues with MY boundaries. The way to deal with this is to immediately confess to my spouse. That is, if I was attracted to Joe, I would tell my husband! That very same day! It would (and should) concern us both. We would take this aberration -- it should be an aberration -- very, very seriously. We would counsel with a qualified, experienced marriage therapist. Why, all of a sudden, am I attracted to this other person? A good therapist would be able to get to the root of this, but it's an issue within the person, within the marriage -- not the employee, or his looks, or his clothing, or his presence. [unless he was flirting with me, then that would be another matter. But in this case, let's say he's oblivious, or certainly not attracted to me. Then what does he have to do with MY problems?] IF it seemed best to discuss this with my employee -- wow, I'm just trying to imagine the legalities of doing that -- but anyway, what would I say? "Joe, you do great work. I want to jump your bones?" How could we ethically FIRE this person because I have issues? What if your husband's boss (male or female) is suddenly attracted to him? Would you want your husband to come home and say, "I got fired today because my boss is attracted to me?" Gah. There is nothing for the employee to do! Nothing! The job is the job, but the PROBLEM is with the employer. That is all. Quote Link to comment Share on other sites More sharing options...
mommymilkies Posted December 26, 2012 Share Posted December 26, 2012 Or *he* could have curbed his unprofessional behavior, realized that texting her in such circumstances was entirely inappropriate, chosen to be honest with everyone, offered to help the employee find another job with stellar references, and given her a reasonable (though not exorbitant) severance package for an employee of ten years, and set up counseling sessions with his wife. ETA: He apparently did give her one month's severance. I agree. And for all the people who say she should have just found another job...really? I don't know where you all are, but jobs are HARD to find right now! Quitting means you may not have another job for years, and can you imagine explaining that in an interview about why you changed jobs??? Quote Link to comment Share on other sites More sharing options...
misty.warden Posted December 26, 2012 Share Posted December 26, 2012 can you imagine explaining that in an interview about why you changed jobs??? Uhh, "I was uncomfortable with the interpersonal relationship between my former supervisor and decided to remove myself from that environment" isn't acceptable? If I was interviewing her that sounds better than explaining that she stuck around and let him talk to her like that for who knows how long before he fired her and then having to explain that it was sexual harassment. Quote Link to comment Share on other sites More sharing options...
Violet Crown Posted December 26, 2012 Share Posted December 26, 2012 I've read several articles and it does seem that there was a consensual friendship but nothing more. In at least one article it discussed how he sent an inappropriate text and she ignored it. He was her boss so how much freedom did she feel in not participating in friendly texts? Does any article state who started the friendly texts? I've never read anything that stated she was attracted to him. I've also read articles that stated her uniform was scrubs, so I don't know why he would state they were inappropriate. I'm not sure if it is all accurate though. She worked for him for 10 years and stated in court she was shocked by how he felt, so maybe she thought they were just friends. I don't really know anymore, but I am upset by how the court ruled. I totally get at-will employment, but you don't bring a female into your office (with your pastor present) and tell her she's fired because you find her attractive. That's just wrong. His own wife works at his office and I'm assuming he finds her attractive, yet he manages to be professional in the office. He should have found a way to do so with this woman or given her a chance to find a new job before firing her. One thing to remember about these facts (and here I'm arguing a bit for the defendant) is that this was a summary judgment in the lower court, and an affirmation of that in the higher court. Now an actual lawyer here can correct me, but I understand that a summary judgment is where the defendant says, "Even if the plaintiff were to prove everything she claims is true, she would still lose; because the facts wouldn't support the argument she's making." So the court looks at the evidence "in the light most favorable to the plaintiff": that is, the judge assumes that the plaintiff has proved that all the facts she claims are true, and in this case decided that the law didn't give her the win. So the case gets dismissed, as it would be a waste of everyone's time for her to try to prove them. But the result is that the facts get reported in the press as if the court had found them to be true, when in fact the court has only assumed them to be true for the sake of deciding the summary judgment. So we only see what she has alleged; not what the court would have decided was true if both parties had gotten a chance to present their case. It's an important difference. Quote Link to comment Share on other sites More sharing options...
nmoira Posted December 26, 2012 Share Posted December 26, 2012 Uhh, "I was uncomfortable with the interpersonal relationship between my former supervisor and decided to remove myself from that environment" isn't acceptable? If I was interviewing her that sounds better than explaining that she stuck around and let him talk to her like that for who knows how long before he fired her and then having to explain that it was sexual harassment. Potential employers would hear that as, "I had an affair with my boss." Quote Link to comment Share on other sites More sharing options...
mommymilkies Posted December 26, 2012 Share Posted December 26, 2012 Potential employers would hear that as, "I had an affair with my boss." Exactly. My SIL works in Human Resources. That's exactly what they would assume from mention of relationship issues with a boss. Quote Link to comment Share on other sites More sharing options...
misty.warden Posted December 26, 2012 Share Posted December 26, 2012 Potential employers would hear that as, "I had an affair with my boss." Would implies that you know the minds of every potential boss she would interview with, which I'm sorry but you do not. They may hear it that way, or they may hear it as any other type of unhealthy relationship she chose to stop exposing herself to, such as a demeaning or threatening boss, or one who, say broke HIPPA regulations and intimidated her into not turning him in. Should people who leave jobs for reasons of uncomfortable emotional relationships then lie about it? Quote Link to comment Share on other sites More sharing options...
nmoira Posted December 26, 2012 Share Posted December 26, 2012 Would implies that you know the minds of every potential boss she would interview with, which I'm sorry but you do not. They may hear it that way, or they may hear it as any other type of unhealthy relationship she chose to stop exposing herself to, such as a demeaning or threatening boss, or one who, say broke HIPPA regulations and intimidated her into not turning him in. Should people who leave jobs for reasons of uncomfortable emotional relationships then lie about it? I used to work in executive recruiting, and I have two good friends who work in HR, so this is the angle I'm coming from: The answer to your question is yes. You would have to lie, or more accurately make clear (as mud) that you left for reasons of impropriety on your former employer's part, but are trying your damnedest to make sure that you're not actually *saying* that, are in fact not *saying* that. Would you, given a field of candidates, hire someone who admits they couldn't get along at their last job or who is trash talking former employers? ETA: It's not a question of "should" have to, but rather "would have to." Quote Link to comment Share on other sites More sharing options...
misty.warden Posted December 26, 2012 Share Posted December 26, 2012 Would you, given a field of candidates, hire someone who admits they couldn't get along at their last job or who is trash talking former employers? My statement boiled down to "I was uncomfortable with the situation and I chose to leave" none of that trash talks anyone. No one gets along with everyone all the time and any excuse for quitting a job will imply that you couldn't get along in your former position for whatever reason, whether it's a personal difference, professionally outgrowing the company, or choosing to relocate. Both your experiences and mine are anecdotal, but FWIW I have personally been hired on the spot after saying much worse things than "I didn't like my former boss" and I would absolutely hire someone who had experience in her field, and was honest about knowing a job wasn't working out because those are not the only questions I would be asking during an interview. Quitting a position may be a dealbreaker for some hiring employers, but that's cutting them off from a lot of workers who are more than just their resume timeline. Quote Link to comment Share on other sites More sharing options...
Violet Crown Posted December 26, 2012 Share Posted December 26, 2012 I used to work in executive recruiting, and I have two good friends who work in HR, so this is the angle I'm coming from: The answer to your question is yes. You would have to lie, or more accurately make clear (as mud) that you left for reasons of impropriety on your former employer's part, but are trying your damnedest to make sure that you're not actually *saying* that, are in fact not *saying* that. Would you, given a field of candidates, hire someone who admits they couldn't get along at their last job or who is trash talking former employers? ETA: It's not a question of "should" have to, but rather "would have to." Think it would help if you could say, "I'm the plaintiff from that State Supreme Court case with the pious boss who felt he had to fire employees he was afraid he might sexually harass"? Maybe not so much. Quote Link to comment Share on other sites More sharing options...
StephanieZ Posted December 28, 2012 Share Posted December 28, 2012 You misunderstand. My example had nothing to do with insubordination. It was about having different, and race-based, sex-based, or other-protected-category-based, performance standards for different employees. If your dislike of "uppitiness" or your dress code standards are only enforced against black or female employees, you are likely in violation of state and/or federal antidiscrimination law. Do you understood my first point, that at-will employment is superseded by antidiscrimination law? You may feel very strongly that, as the boss, you can fire an employee for any reason you please; but the law disagrees. Yes, I understand and agree that anti-discrimination law is superior to at-will employment law. However, I believe we disagree about the extent of anti-discrimination law and the impacts of at-will employment law. I believe that anti-discrimination law provides very narrow protections while at-will employment law has broad impacts. I think the BUSINESS error of the employer was in being honest about why he was firing the woman. (His MORAL and PERSONAL failings are numerous and obvious!) He should have kept his mouth shut. Quote Link to comment Share on other sites More sharing options...
kitten18 Posted December 28, 2012 Share Posted December 28, 2012 Potential employers would hear that as, "I had an affair with my boss." :iagree: Quote Link to comment Share on other sites More sharing options...
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