Is firing an at-will employee at the urging of an employee’s spouse due to sexual jealousy sex discrimination? It could be, said a New York state appellate court, reversing the dismissal of a sex discrimination complaint under state and city law filed by the fired employee of a chiropractic and wellness clinic who alleged that she was fired by the clinic’s husband and wife co-owners after the wife texted her to “stay the [expletive] away from my husband and family!!!!!!! And remember I warned you” (Edwards v. Nicolai, August 22, 2017, per curiam).
“Stay away from my husband.” The husband and wife are co-owners of Wall Street Chiropractic and Wellness, and the husband hired the employee as a yoga and massage therapist; he was her direct supervisor. Although the employee claimed her relationship with the husband was “purely professional” and that he “regularly praised Plaintiff’s work performance,” about a year after she was hired the husband allegedly told the employee his wife might become jealous because she was “too cute.”
About four months later, the wife sent the employee a text message in the middle of the night stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Later that morning, the employee said she received an email from the husband that read: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”
Police report. A day later, the wife allegedly filed a complaint with the New York City Police Department claiming that she had received “threatening” phone calls from the employee that so frightened her that she changed the locks at her home and business. Alleging that this statement was false, the employee sued for defamation and gender discrimination under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL); the trial court dismissed her gender discrimination claim but allowed her defamation claim to proceed.
Spousal jealousy. Although the employee did not allege that she was ever subjected to sexual harassment at WSCW, she alleged facts from which it could be inferred that the husband was motivated to fire her by his desire to appease his wife’s unjustified jealousy, and that the wife was motivated to fire her by that same jealousy. Each co-owner’s motivation to fire the employee was sexual in nature, the appellate court reasoned. As such, the employer’s reliance on certain cases in the “spousal jealousy” context was misplaced because those cases involved admitted consensual sexual affairs between the employer and the employee. In those spousal jealousy cases, it was the employee’s behavior—not merely the employer’s attraction to the employee or the perception of such an attraction by the employer’s spouse—that prompted the employee’s firing.
Sexual attraction cause of action. Assuming the truth of the complaint’s allegations as required on a motion to dismiss, the employee had always behaved appropriately, was performing acceptably, and was fired for no reason other than the wife’s belief that her husband was sexually attracted to the employee. This states a cause of action for gender discrimination under the NYSHRL and NYCHRL, concluded the court.
The court cautioned, however, that it is not necessarily unlawful for an employer to terminate an at-will employee at the urging of the employer’s spouse. Still, a discharge is actionable if the spouse urged the discharge for unlawful, gender-related reasons. What made the firing here unlawful, if the allegations of the complaint proved true, was not that the wife urged her husband to fire the employee, but the reason she urged him to fire her and the reason he complied.
Sound familiar? The case is reminiscent of the Iowa Supreme Court’s 2013 decision upon reconsideration that again ruled that a male dentist could lawfully terminate his female hygienist in order to allay his wife’s fears about a relationship between them (Nelson v James H. Knight DDS ). In that case, the employee also did not allege sexual harassment; rather, she contended she was terminated because of her gender, claiming that neither their relationship nor the alleged threat to her boss’s marriage would have existed if she had not been a woman.
In the Iowa case, the lower court had relied extensively on the Eighth Circuit’s 2006 decision in Tenge v. Phillips Modern Ag Co—distinguished by the New York court here—in which it held that an employer does not engage in unlawful discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy, even if the relationship and resulting jealousy presumably would not have existed if the employee had been male. And although the Iowa Supreme Court said that the employee’s arguments warranted “serious consideration,” that court found a distinction between “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.” It affirmed summary judgment for the employer, finding it was not unlawful gender discrimination to fire an employee because the employer’s wife “unfairly or not, viewed her as a threat to her marriage.”
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