Friday, August 25, 2017

Edwards v. Nicolai: Is firing someone for being "too cute" unlawful sex discrimination?

In Edwards v. Nicolai, a New York state appeals court held that Dilek Edwards stated a sex discrimination claim under the New York City Human Rights Law and the New York State Human Rights Law based on her allegation that she was fired by Wall Street Chiropractic and Wellness because one of the co-owners, Stephanie Adams, believed that the other co-owner, her husband Charles Nicolai, was sexually attracted to Edwards. In reaching this conclusion, the court distinguished other cases involving admitted consensual affairs. In those cases, other courts had rejected employees' claims because their terminations were based on their own behavior. Here, by contrast, the plaintiff had not acted inappropriately, and she was fired based merely based on the perception that Nicolai was attracted to her.

On its face, the Edwards court's reasoning seems to make sense, but upon further consideration, this case is hard to distinguish from those previously rejected by other courts. As noted in Edwards, other courts have rejected claims in which a termination was based on spousal jealousy where there was an admitted consensual affair. In Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990), the court clearly thought it irrelevant, however, whether the fired employee had actually engaged in an affair. The appeals court stated that the district court had "wisely refrained from attempting to reach any definitive factual conclusion as to whether [the] affair was real." Rather, the mere perception that the employee was engaging in an affair rendered her termination outside the bounds of EEO law. As reflected in Platner, what matters is the motive of the allegedly biased individual. Whether that individual was correct does not affect whether he was motivated by discriminatory bias.

In Edwards, it doesn't appear that the plaintiff was fired because she was perceived to have been engaged in an affair. But if it's not unlawful to fire someone because she is believed to be engaging in an affair, it would seem to follow that it's also ok to fire someone because of the concern that she might become engaged in an affair in the future.

The real problem here is that the spousal jealousy line of cases may not be legally sound.

It is settled that if an employee is denied a job benefit because she rejects sexual advances, the denial was based on her sex. As explained by the Supreme Court in Oncale v. Sundowner Offshore Services, if a male supervisor makes sexual advances toward a female subordinate, it is reasonable to assume that the advances would not have been made to someone of the same sex, and were therefore motivated by the subordinate's sex. Since the supervisor's motivation in making the sexual advances is what matters, it follows: (1) if an employee is denied a job benefit because she submits to sexual advances, the employee was denied the benefit because of her sex; (2) if an employee is granted a job benefit because she submits to sexual advances, the employee has received a benefit because of her sex.

Based on (1) above, it follows that the spousal jealousy cases have been wrongly decided. If a supervisor has engaged in a sexual affair with another employee, he has done so, in part, because of the employee's sex. Any adverse action based on the affair would likewise be based on the employee's sex.

Based on (2) above, it also appears that courts have mistakenly rejected claims in which employees have complained when coworkers have received benefits as a result of sexual favoritism.  Where an employee is granted a job benefit, such as a promotion, because she is engaged in a consensual sexual affair with a supervisor, courts have uniformly held that other employees denied the same benefit have not been subjected to sex discrimination, reasoning that sexual favoritism disadvantages men and women alike. But this conclusion seems mistaken. If, for example, a male supervisor grants a promotion to a female subordinate because she is having a sexual affair with him and the supervisor would not have engaged in a sexual affair with another man, then the female subordinate has been treated favorably because of her sex. And qualified male employees who were denied the promotion have been treated unfavorably because of their sex.

So in the end, I see little reason for treating spousal jealousy cases differently depending on whether the plaintiff engaged in a sexual affair, but there's the more fundamental problem as to whether the spousal jealousy line of cases -- as well as sexual favoritism cases -- are legally sound.

Update (9/1/19): I've changed my mind about how these issues should be analyzed. If an employee is fired because she actually had a sexual relationship with her supervisor, then I don' think that's covered since the firing was based on actual conduct. The same would be true even if the belief was mistaken as long as the motivation was the perceived relationship. By contrast, if someone is fired based on the fear that she might have an affair with her supervisor, that's probably unlawful sex discrimination since the perception about the possibility of an affair is based in part on the employee's sex. Similarly, it would be unlawful not to hire a pregnant worker based on the assumption that she couldn't do a job because of her pregnancy, but it would be lawful not to hire her if she actually couldn't do a job because of her pregnancy. If an employee is treated better because she had an affair with a supervisor, I don't think other workers can allege sex discrimination. The preferential treatment is merely a form of personal favoritism, which clearly is not covered.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.