Newsletter September 2017

Newsletter September 2017



Hyderally & Associates, P.C. September 2017 Newsletter

CAN AN EMPLOYEE BE TERMINATED
FOR BEING TOO ATTRACTIVE?

“I’m sorry, but you’re too pretty/attractive. It’s making my spouse/partner jealous. I’m going to have to let you go.” Unfortunately, the above refrain or a variant thereof is relatively common. While most peoples’ reaction when hearing or reading about the above scenario is that it is wrong, discriminatory and must be illegal, until now the courts that have analyzed this issue have found that it falls outside the discriminatory acts made illegal by most discrimination statutes. A recent New York appellate decision, however, has finally decided that it is illegal gender discrimination to fire someone for being too attractive.

First, a bit of background on the gender discrimination laws in New York and New Jersey. Gender discrimination is illegal on the federal level under Title VII. On the state level, the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12 “LAD”) makes it illegal for employers to discriminate against their employees on the basis of race, creed, color, national origin, age, and gender (including pregnancy), among a number of other protected traits. The LAD prohibits employers from discriminating against their employees due to any of these traits in job-related actions, including recruitment, interviewing, hiring, promotions, discharge, or compensation, or in the terms, conditions and privileges of employment.

Similarly, under the New York State Human Rights Law (“NYSHRL”), employers are prohibited from discriminating against an employee or job seeker because of his or her age, creed, race, color, gender, sexual orientation, or national origin, among a number of other protected traits. Specifically, employers may not discriminate against employees in their hiring, firing, compensation, training programs, referrals, or in terms, conditions or privileges of employment, based on any of the aforementioned protected categories.

Both laws attempt to protect employees from being discriminated against by their employers for any reason other than their qualifications and job performance, gender included. Common claims based on an employer’s gender discrimination include pay disparities, failure to promote, and termination because of gender.

 

By Ty Hyderally, Esq., Isaac Graff, Esq. and Chantal Guerriero


Hyderally & Associates, P.C.

PRECEDENTS ON THE DISCRIMINATION CLAIMS OF EMPLOYEES FIRED FOR BEING TOO ATTRACTIVE AND BECAUSE OF JEALOUSY

In 1999, plaintiff Melissa Nelson (“Nelson”) began her ten-year career working as a dental assistant in the dental office of Defendant James H. Knight (“Knight”). Nelson and Knight developed an amicable relationship over the years, and occasionally exchanged platonic text messages discussing their families. Knight, however, began intimating through text messages and at work that he was becoming attracted to Nelson. Nelson was terminated in 2010 after Knight’s wife discovered text messages between Knight and Nelson on Knight’s phone. More specifically, Knight’s wife demanded that Nelson be terminated, because she and the Knight’s family pastor viewed Nelson as a huge threat to their marriage. Knight agreed, and terminated Nelson. Thereafter, Knight replaced Nelson with another female.

Nelson filed a lawsuit alleging gender discrimination against Knight, and Knight filed a motion for summary judgment in response. The Iowa District Court sustained the motion, reasoning that Nelson was not fired because of her gender, but because she was a threat to Knight’s marriage. Nelson appealed, but the Supreme Court of Iowa affirmed the lower court’s judgment and found that demonstrating gender discrimination requires a showing that the discrimination (termination) was based on gender, and not some other motivating factor. The court cited to other cases where, although the plaintiff was blameless and did not contribute to the spousal jealousy, the employer demonstrated by showing that it terminated the employee because of spousal jealousy, it had terminated the employee because of a factor other than gender.

The court classified Nelson’s case as “an isolated employment decision based on personal relations, even if the relations would not have existed if the employee had been of the opposite gender,” rather than a decision based on gender itself. The Iowa court determined that while Knight’s decision may have been unfair, it was not unlawful.

New York’s Lower Court Decision Follows Iowa’s Lead

In April of 2012, plaintiff Dilek Edwards (“Edwards”) began working as a yoga instructor and massage therapist for defendants Charles V. Nicolai (“Nicolai”) and Stephanie Adams (“Adams”), who are husband and wife, and co-own a chiropractic office on Wall Street. Although Plaintiff’s supervisor, Nicolai, always praised Plaintiff for her work, in June 2013 he indicated that his wife, Adams, might become jealous because Edwards was “too cute.” On October 29, 2013, Edwards received a threatening text message from Adams stating that Edwards was terminated. The following day, Edwards received a threatening email from Nicolai reasserting that Edwards was terminated, and that if she returned to the office, Nicolai would call the police.

In December of 2013, Edwards commenced an action against Nicolai and Adams, her former employers, alleging gender discrimination, sexual harassment, and wrongful termination in violation of the NYSHRL and the New York City Human Rights Law (“NYCHRL”). Edwards also alleged a third cause of action against Adams for defamation. Edwards later dropped her claim of sexual harassment, making her claim exclusively for gender discrimination and defamation.

In response, Nicolai and Adams filed a motion to dismiss Edward’s claim. The Supreme Court of New York found that Edwards had not brought a sufficient claim of gender discrimination, and granted the defendants’ motion. Edwards had based her claim of gender discrimination on the fact that her supervisor was terminating her because his wife was becoming jealous. The Court noted that in similar cases, plaintiffs had to show that they were terminated specifically because of their status as females. Even in cases where plaintiffs had no fault and no contribution towards the spousal jealousy, courts reasoned that the termination was not unlawful because it was based on on a factor other than gender. Thus, termination motivated by another factor in Edward’s case, namely spousal jealously, did not amount to gender discrimination.

Edwards later argued that the NYCHRL defines gender as a person’s gender identity, self-image, [and] appearance…” As such, she argued that firing a woman because of a gender-related aspect of her appearance was unlawful discrimination. However, the court decided that this basis did not amount to gender discrimination either, because Edwards’ evidence was only based on Nicolai telling her that she was “too cute.” The court reasoned that the remark may not have been about Edwards’ appearance or gender in the first place, and that it did not provide enough evidence that the supervisor was treating her differently because of her gender.

Some have argued that, in contrast to New York and Iowa law, New Jersey law allows for plaintiffs to make a showing of gender discrimination in cases similar to those aforementioned based on a “sex-plus” theory of discrimination (“sex-plus” discrimination applies where an employer takes an employment-related action based on an employee’s gender and another characteristic, like an employee’s status as a mother). However, there does not appear to be a court decision in New Jersey on-point, confirming the applicability of sex-plus discrimination to the aforementioned scenario.

 

By Ty Hyderally, Esq., Isaac Graff, Esq. and Chantal Guerriero


Hyderally & Associates, P.C.

NEW YORK APPELLATE DIVISION REVISITS EDWARDS’ CLAIMS

After the Supreme Court of New York granted the motion of defendants (Nicolai and Adams) to dismiss Edward’s Complaint of gender discrimination, Edwards appealed the decision.

The Appellate Division held that the lower court erred in dismissing Edwards’ cause of action for gender discrimination under the NYSHRL and the NYCHRL. The court explained that that “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.” Edwards v. Nicolai, 2017 App. Div. LEXIS 6201. Edwards had established facts from which it could be inferred that Nicolai was motivated to terminate her because of his wife’s jealousy, and that Adams was motivated by jealousy as well. Thus, the court found that the basis for Edwards’ termination was sexual in nature, and ultimately related to Edwards’ gender. Id.

While the defendants cited to cases involving spousal jealousy in support of their contention that they had not unlawfully discriminated against Edwards, the court distinguished those cases from the defendants’ case. The court found that the cited cases involved not only the employer’s behavior but also the employee’s behavior as a contributing factor to the jealous spouse’s perception. Such cases did not apply because Edwards played no role in Adams’ spousal jealousy.

The ruling is a welcome one, as it provides a first-of-its-kind-decision in favor of employees.  Employees who are fired or suffer an adverse employment action because of their attractiveness and/or spousal jealousy can now point to this case in support of their discrimination claims.  It is a step in the right direction towards protecting employees from being treated unfairly based on their looks and the whims of jealous spouses or partners and placing the focus where it properly belongs, on their work performance.

 

By Ty Hyderally, Esq., Isaac Graff, Esq. and Chantal Guerriero



These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

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