§1.2 III. Claims On The Fringe Of The "Gender" Protected Class—Attractive Employees

• Jurisdiction: New York

III. Claims on the Fringe of the "Gender" Protected Class—Attractive Employees

When it comes to one particular claim under the heading of gender discrimination, we find ourselves at the fringes when the claim relates to adverse employment actions (terminations) that are suffered by employees because their employers see them as "too attractive," a "distraction" or a "threat to their marriages." There is an apparent split between the holdings of courts in two states—New York and Iowa—as well as much in the way of shades of gray.

For instance, in New York, one might warn employers to be careful if they think an employee is "too cute" or "too attractive," and they terminate that employee. That happened in the case of Edwards v. Nicolai,⁶⁴ where plaintiff was terminated as a yoga and massage therapist at a chiropractic practice because the wife and co-owner of the business believed that the plaintiff was "too cute" and a threat to her marriage. The defendant wife was becoming jealous that the defendant husband co-owner of the business might become attracted to the plaintiff and compromise their marriage vows.⁶⁵ It is important to note that there was no allegation of actual inappropriate interaction between plaintiff and the defendant husband. The trial court dismissed plaintiff's claim, holding the New York State and New York City Human Rights Laws did not cover this scenario, since the laws speak to gender protection (among other classes), but this was not a matter directly falling under "gender." However, the Appellate Division, First Department reversed the trial court, and held the circumstance of plaintiff's firing was sufficient to raise a claim of gender discrimination under both State and City Human Rights laws.⁶⁶

Now, in contrast, consider the case of Nelson v. James H. Knight DDS, P.C.⁶⁷ Ironically, the facts in Nelson were very similar to those in Edwards. Plaintiff was a dental assistant for defendant Knight. Unlike with his other female employees, in this case there did come a point in time where defendant and plaintiff began exchanging text messages outside of work. Both were married, with children, and neither objected to the messages.⁶⁸ After a time of exchanging messages, the defendant began to view plaintiff and their interaction as a potential "detriment" to his marriage. Defendant fired plaintiff after discussions with his wife, and with a pastor present, telling plaintiff that defendant believed plaintiff's firing was in the best interests of their families and marriages.⁶⁹ Plaintiff was provided one month's severance pay. Importantly, in this case, there was no allegation of an actual relationship other than a work or friend relationship between plaintiff and defendant; however, there were some alleged instances of potential flirting and some inappropriate text messages, though there was no allegation of or claim of sexual harassment. Following the termination, defendant actually hired another female assistant.⁷⁰

The Iowa Supreme Court determined that the termination was lawful and not a violation of the state's Civil Rights Act. The perceived threat presented to the defendant's marriage was held to be a sufficient, legitimate cause not finding its roots in discriminatory animus.

The holdings of both the Edwards and Nelson courts are provided here at near full-length from the opinions, so that the reader may review them and contrast and analyze the reasoning. While there is a distinction between Nelson and Edwards, largely because it seems in Nelson the plaintiff and defendant did have a personal, non-sexual relationship outside of the office, the question is whether Nelson, from a time prior to Edwards, presents the majority view in states or rather a view that will become more outdated as time passes.

Edwards v. Nicolai (New York State, Appellate Division, First Department) Memorandum Decision

Order, Supreme Court, New York County . . . entered May 13, 2016, which granted defendants' motion to dismiss the amended complaint to the extent of dismissing the causes of action for gender discrimination in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Laws (NYCHRL), and denied the motion as to the cause of action for defamation, unanimously modified, on the law, to deny the motion as to the discrimination causes of action, and otherwise affirmed, without costs.

. . .

Defendant Charles V. Nicolai is married to defendant Stephanie Adams. Nicolai and Adams are co-owners of Wall Street Chiropractic and Wellness (WSCW). Nicolai is the head chiropractor and oversees the medical operations, while Adams is the chief operating officer. In April of 2012, Nicolai hired plaintiff, Dilek Edwards, as a yoga and massage therapist, and thereafter was her direct supervisor.

The complaint alleges that the relationship between Nicolai and plaintiff was "purely professional" and that Nicolai "regularly praised Plaintiff's work performance throughout her period of employment." In June 2013, however, Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was 'too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message 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." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, "'You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging—falsely—that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.

As noted, plaintiff alleges that her relationship with Nicolai was strictly professional and that she "has no idea what sparked . . . Adams' [sic] . . . suspicions" to the contrary.

Based on the foregoing factual allegations, the amended complaint asserts a cause of action for gender discrimination in violation of the NYSHRL, a cause of action for gender discrimination in violation of the NYCHRL, and a cause of action for defamation. In lieu of answering, defendants moved to dismiss under CPLR 3016(a) and 3211(a)(7). Supreme Court granted the motion to the extent of dismissing the two gender discrimination claims, but sustained the defamation claims. Both sides have appealed.

. . .

The [trial] court erred, . . . in dismissing the causes of action for gender discrimination under the NYSHRL and the NYCHRL. It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination (see, e.g., Williams v. New York City Hous. Auth., 61 A.D.3d 62, 75 (1st Dep't 2009), lv. denied 13 N.Y.3d 702 (2009) [sexual harassment is "one species of sex- or gender-based

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