Panic Street Lawyer: Jam on the Job, Part I

Sunday, 28 July 2013 06:00 AM Written by  Jay Hornack

20101010supremecourtbuilding 150The United States Supreme Court issues a handful of employment law decisions every term, and the October Term 2012 was no different. Most of these opinions are judicial interpretations of federal statutory laws such as Title VII of the Civil Rights Act and the National Labor Relations Act. The Supreme Court’s latest term ended in late June, and the October Term 2013 does not begin until the first Monday in October.

But other American courts – trial as well as appellate, state as well as federal – continue to work during the “hazy, lazy, crazy days of summer.” Many of the cases these judges, law clerks, staff, and juries process fall into the category of employment law. These cases do not often get the same sort of public attention that Supreme Court employment law pronouncements get, but sometimes they do. Here is the first of two state court employment law rulings – coincidentally, both issued this July 12 – involving two younger (ex) employees who found themselves in job-related jams.

In the Supreme Court of Iowa

After receiving a community college degree at age 20, Melissa Nelson was hired to work as a dental assistant by James H. Knight DDS. Nelson worked for 10 ½ years in Dr. Knight’s Fort Dodge, Webster County dental office, starting in 1999.

During the last 1 ½ years of her employment, Nelson was subjected to comments by Dr. Knight which – if you are looking for a shorthand description that is understandable in July 2013 America – bordered on Anthony Weiner / Bob Filner creepy. Nelson says she never flirted with Dr. Knight or sought an intimate or sexual relationship with him (she says she considered her boss to be a friend and father figure).

20130728wap melissanelson150Melissa Nelson in an undated photo showing her regular office attire. Melissa Nelson photo via Associated PressWithout notice, Nelson was fired from her assistant job by Dr. Knight ten days after Christmas 2010, with a pastor from the dentist’s church present as an observer. Dr. Knight told Nelson’s husband later that same day that the reason for Melissa’s firing was that he was worried that he (Dr. Knight) was getting too personally attached to her, that nothing was going on, but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson and her attorneys did not bring a sexual harassment or hostile work environment claim against Dr. Knight; instead, they alleged in a 2010 lawsuit brought pursuant to the Iowa Civil Rights Act that Nelson’s firing was unlawful sex discrimination. In a unanimous decision, the Iowa Supreme Court affirmed the district court’s grant of summary judgment to Dr. Knight. As a separate concurring opinion put it, Nelson’s lawsuit sought to expand the definition of sex discrimination “within an environment dominated by the venerable doctrine of employment at will, which still receives broad support.” What the Court’s majority found most persuasive, in deciding to reject Nelson’s effort to claim that her firing was “because of sex,” was evidence that the firing was carried out because Dr. Knight’s wife was concerned about the nature of their relationship and “request[ed]” her husband to fire Nelson.

Much has been written in the blogosphere since July 12 about this so-called case of the “irresistible employee,” with the focus on whether the facts of the case support a claim of sex discrimination. But I have not read anyone who addressed this question: do these facts support a claim by Nelson against Dr. Knight for discriminatory firing because of disability? This question seems particularly timely given that this week is the 23rd anniversary of the passage of the federal Americans with Disabilities Act (the Iowa Civil Rights Act of 1965 as amended also prohibits disability discrimination in employment).

The 2008 ADA amendments expanded the definition of “disability” in favor of “broad coverage” following a series of United States Supreme Court decisions between 1999 and 2002 which limited coverage. The third prong of the original three-prong definition of “disability” now simply requires that an individual show that he or she was “regarded as” having an “actual or perceived physical … impairment” in order to allege discrimination covered by the ADA (previously “regarded as” plaintiffs also had to show that those impairments “substantially limited one or more major life activities…”). The U.S. Equal Employment Opportunity Commission’s Interpretive Guidance states that the third prong of disability “was originally intended to express Congress’s understanding that ‘unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.’”

From my reading of the facts, Mrs. Knight – who was also an employee in the dental office – was guilty of “unfounded concerns, mistaken beliefs, fears, [and] myths” about Melissa Nelson when she insisted that her husband terminate Nelson.

But the ADA statute does not define the term “physical impairment,” and the EEOC’s regulations define it to mean “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: … skin…” Nelson’s attractiveness is most likely not going to be considered a “physical impairment,” unlike a facial scar, because her appearance is most likely not going to be an actual or perceived “cosmetic disfigurement” (the Merriam-Webster Dictionary defines “disfigure” as “to impair [as in beauty] by deep and persistent injury”). And if Nelson does not have a “physical impairment,” then a court is not going to allow her to proceed with an employment discrimination lawsuit based on a “regarded as” disability.

Despite my legal conclusion, this case will still forever bring to mind these immortal first words of actress Kelly LeBrock, from a 1980s commercial, which became a pop-culture catchphrase:

Next week: Part II

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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