Iowa Supreme Court to Men: You Can’t Be Expected to Control Yourselves

That’s one takeaway, from the recent case of Nelson v. James H. Knight DDS, P.C. et al. declaring that a woman could be fired for being an “irresistible attraction.”  Of course this grabs headlines for all kinds of reasons, namely because Rule 5 applies to respectable news organizations, too.

And of course for the sake of evidence—and not for those Rule 5 purposes, of course—let’s put up a picture of the plaintiff, Melissa Nelson, here:

You can see some additional still photos and actually hear from the woman herself, here:

And in addition to the titillation of describing a woman as irresistible to a man, some of the facts are likely to hit home for many married men and women.  Namely, the man, Dr. James Knight, ran a dental practice and hired her over ten years ago.  As time went on, he felt he was so attracted to her that he allegedly wouldn’t be able to resist attempting to have an affair:

Dr. Knight told Steve Nelson [the plaintiff’s husband] that nothing was going on but that he feared he would try to have an affair with [Mr. Nelson’s wife] down the road if he did not fire her.

Of course that was followed immediately after by Mr. Nelson proceeding to leap across the desk that separated them and strangling Dr. Knight and...

Okay, that part didn’t happen, as far as I know.  But I bet it crossed Mr. Nelson’s mind.  It certainly would have crossed my mind.

In addition to that, Mrs. Knight became increasingly jealous of the two of them, believing that Mrs. Nelson was interested in her husband.  So there was some pressure on Dr. Knight to fire her.  And of course that makes the story more “newsworthy” because it taps into a lot of insecurities people can have in their marriage.  Some people fear that someone will swoop in and take their spouse away,while others worry about being falsely accused of having an affair, and so on.

But I want to focus on something less likely to grab headlines: what this means for gender discrimination law.  Let me start by establishing a baseline.  I am a old school feminist in the sense that I believe men and women should be granted equal opportunities.  If a woman can do the job, she should be allowed to and vice versa.  My constitutional hero, Thaddeus Stevens, said that his dream was that no distinction would be tolerated but what arose from merit and conduct and I apply that logic to women.

So if you are focusing on the discrimination angle of the story and you want to go right to the epicenter of the absurdity of this ruling, you can start with this passage from the Iowa Supreme Court ruling:

Nelson also raises a serious point about sexual harassment. Given that sexual harassment is a violation of antidiscrimination law, Nelson argues that a firing by a boss to avoid committing sexual harassment should be treated similarly.6 But sexual harassment violates our civil rights laws because of the “hostile work environment” or “abusive atmosphere” that it has created for persons of the victim’s sex…On the other hand, an isolated decision to terminate an employee before such an environment arises, even if the reasons for termination are unjust, by definition does not bring about that atmosphere.

Let me reduce it to the absurdity that it really is.  In other words, it would have been an unacceptable discrimination against her if he kept her on and then subjected her to unwanted advances.  But fortunately he just fired her, so that is fine and dandy!

Which is getting things so wrong it makes my head hurt.  But to understand just how wrong we are getting this, you have to start by understanding the law of sexual harassment.  It is very important that you forget almost everything the media has ever told you about harassment law.  If you watched Ally McBeal and took what it said about sexual harassment law as anything but complete bull, for instance, you are positively miseducated in the law.  In that case, you aren’t merely unknowledgeable in the law, you are actually taught to believe things that are wrong.  It’s the difference between not knowing what shape the earth is versus being positively taught that the earth is flat.  And I say that without criticism toward you, dear reader: how would you know that so much in our media was getting it wrong?  But they are getting it wrong, and I ask you to toss what they told you aside.  So let me give you a quick primer on sexual harassment from my days at Patterico:

[L]et me throw a hypothetical at you for a moment. Imagine a white employee goes up to a black employee and starts calling him n——, calling him a slave, saying he should be lynched, and so on. What would us lawyers call that?

Racial harassment (among other things). That is harassment directed at an individual because of his race. And if a Jewish employee approached a gentile and started calling him a damn Christian, saying everyone in his faith are perverts, and that he should be shot, that would be… religious harassment. And likewise there can be age harassment, disability harassment, and so on. Indeed, I have personally been the victim of disability-based harassment. So [WSJ’s James] Taranto seems to think that sexual harassment law is about regulating our sexuality. It is not.

When we hear the word “sexual” in sexual harassment, our dirty minds think of human sexuality—the attitudes, acts, etc. associated with the act of sex. But that is not the meaning of the word in that context; in that context, “sexual” means “based on gender.” I have long told people that it is better to call it gender harassment so as to avoid this basic misunderstanding. Sexual harassment, therefore, is just one subset of a number of doctrines prohibiting harassment that has grown up under our civil rights laws.

The impetus behind the development of the law of discriminatory harassment seems pretty obvious, too. Surely when the Civil Rights Act of 1964 was passed there were some people who thought they could hire equally, but then make black people (or any other group they dislike) feel so unwelcome (indeed often leading that person to fear for their lives and safety) that they would voluntarily quit. So you need a rule that prevents employers from actually harassing based on undesirable traits and even requires employers to prevent such conduct between employees. Thus the concept of harassment by hostile environment was born.

And of course applied to women a new problem started cropping up. When a man in says to a woman who is his secretary, “sleep with me or you are fired,” he obviously is not typically trying to drive women out of the workplace. I mean, I can imagine a situation where a man who just hates women in the workplace might require a woman to engage in sexually humiliating conduct as a way of driving her out, but let’s face it, it’s more often about horniness than anything else.

(No, I don’t buy the claim that sexual harassment is about power. Power is the means to the end, not the end itself. The goal is in most cases just to have sex.)

What the creepy boss is doing in my hypothetical, really, is trying to change the job description of his secretary, from the ordinary duties of a secretary to the ordinary duties of a secretary, plus the services of a prostitute. And if you are wondering how that is gender-based, well… ask your self this: would he do the same if his secretary is a man? The answer is almost always “no.”

(There was a case where a man claimed to be an equal opportunity sexual harasser. I never found out how that turned out, but let me say that is an extremely risky strategy even if it might theoretically work. You would have be truly equal opportunity in your harassment and the court might still find that it is gender-based because of the disparate impact of the facially equal behavior. Bluntly, don’t try it.)

And that is what we lawyers call quid pro quo, the promising of a benefit for saying “yes,” and/or retribution for saying “no.”

Now I go on in that piece to criticize the application of the law to “hostile environment harassment,” but that is irrelevant here.

So the key thing to get is this.  If a pig man boss demands sex from his female subordinate and she refuses, and he makes her life hell as a result, it is not unlawful merely because it is creepy behavior and/or solicitation of prostitution.  It is illegal, under our civil rights statutes, because it is discrimination based on gender, i.e. he presumably would not have treated a man this way.

So in that context the sheer absurdity of this quote becomes a little more obvious:

Nelson also raises a serious point about sexual harassment. Given that sexual harassment is a violation of antidiscrimination law, Nelson argues that a firing by a boss to avoid committing sexual harassment should be treated similarly.6 But sexual harassment violates our civil rights laws because of the “hostile work environment” or “abusive atmosphere” that it has created for persons of the victim’s sex…On the other hand, an isolated decision to terminate an employee before such an environment arises, even if the reasons for termination are unjust, by definition does not bring about that atmosphere.

Hey, Melissa Nelson.  Don’t you feel better that you lost your job, rather than being allowed to keep it on the condition that you have to swat away this horndog?  Isn’t it much better to lose your job entirely rather than be given the option to keep it—and perhaps even find new employment before leaving this job—while enduring Dr. Knight’s unwanted advances?  Aren’t you so much better off this way?

It seems strange to me to argue that this is all okay because she faced the more severe employment consequences.

Which is not to say I am in favor of Dr. Knight making unwanted advances or Mrs. Nelson having to endure them, but I think it is self-evident that she would have been better off deciding for herself which is worse: to be unemployed entirely or deal with the possibility of Dr. Knight making advances on her.  I mean couldn’t he at least be a stand-up guy and give her more than a month’s severance pay seeing that it is his inability to control his own, ahem, dentist’s drill, that created this problem?

Now in defense of the Iowa Supreme Court, there are a number of precedents they cite that (without a deep investigation on my part) do kind of support this absurd result.  But the sheer absurdity of this result should have counseled the Iowa Supreme Court to discard those prior precedents.  Just because several other courts have gone significantly down this path so it was only one more step in the wrong direction, doesn’t mean they should have taken that next step.

And there is one other curious part of the opinion that really annoyed me the more I thought about it:

Dr. Knight responds that Nelson was terminated not because of her sex—after all, he only employs women—but because of the nature of their relationship and the perceived threat to Dr. Knight’s marriage.

(Emphasis added.)  I am sorry, but is the Iowa Supreme Court allowing him to defend himself from claims of gender-based discrimination by claiming he doesn’t consider men for the job?  Or is it merely saying that, “hey, all of his dentist’s assistants have been women so there is no possibility that he is a sexist.”

If the second argument is their theory, it recalls to mind a passage from Mississippi University for Women v. Hogan.  Just as a little background, Joe Hogan was a man who wanted to get into the university’s nursing program but was being denied due to his status as a man.  The Supreme Court sided with him and struck down the rule excluding him based on his gender, only.  One of the sillier arguments the Mississippi University for Women (MUW) made was that this blatant sexual discrimination and segregation was justified as affirmative action designed to benefit women.  So after going over a lot of data that establishes to absolutely no one’s surprise that nurses tend to be women, Justice O’Connor writes that

[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman's job.  By assuring that Mississippi allots more openings in its state-supported nursing schools to women than it does to men, MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy

So is Dr. Knight telling us he can’t find any dental assistants who are men?  Because I know a few.  Admittedly they are still outnumbered, but I don’t find it a slam dunk argument to say, “look all his dental assistants are women, so he can’t be sexist!”  Maybe it is a coincidence that he never hires men.  Or maybe he considers it to be women’s work, which opens up a whole can of worms for Dr. Knight.

In addition to all that, there is a creepy undercurrent to this decision where apparently the court believes that Dr. Knight cannot be expected to control himself, as alluded to in my headline.  For instance there is this passage which I partially quoted at the beginning of this post:

In the meeting, Dr. Knight told Steve Nelson that Melissa Nelson had not done anything wrong or inappropriate and that she was the best dental assistant he ever had. However, Dr. Knight said he was worried he was getting too personally attached to her. Dr. Knight told Steve Nelson 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.

And of course his conduct was at times inappropriate.  For instance, this passage leaps out:

Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing. On another occasion, Dr. Knight texted Nelson saying the shirt she had worn that day was too tight. After Nelson responded that she did not think he was being fair, Dr. Knight replied that it was a good thing Nelson did not wear tight pants too because then he would get it coming and going. Dr. Knight also recalls that after Nelson allegedly made a statement regarding infrequency in her sex life, he responded to her, “[T]hat’s like having a Lamborghini in the garage and never driving it.” Nelson recalls that Dr. Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text.

And finally the court seems to accept the premise that he just can’t control himself:

So the question we must answer is the one left open in Tenge—whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.

(emphasis added).  Ah, so the guy is a like a starving dog who suddenly has a piece of meat in front of him.  If that sentiment sounds familiar, then you might be recalling something like this:

Muslim Leader Blames Women For Sex Attacks

BY: RICHARD KERBAJ From: The Australian October 26, 2006 12:00AM

THE nation's most senior Muslim cleric has blamed immodestly dressed women who don't wear Islamic headdress for being preyed on by men and likened them to abandoned "meat" that attracts voracious animals.

In a Ramadan sermon that has outraged Muslim women leaders, Sydney-based Sheik Taj Din al-Hilali also alluded to the infamous Sydney gang rapes, suggesting the attackers were not entirely to blame.

While not specifically referring to the rapes, brutal attacks on four women for which a group of young Lebanese men received long jail sentences, Sheik Hilali said there were women who "sway suggestively" and wore make-up and immodest dress ... "and then you get a judge without mercy (rahma) and gives you 65 years".

"But the problem, but the problem all began with who?" he asked.

The leader of the 2000 rapes in Sydney's southwest, Bilal Skaf, a Muslim, was initially sentenced to 55 years' jail, but later had the sentence reduced on appeal.

In the religious address on adultery to about 500 worshippers in Sydney last month, Sheik Hilali said: "If you take out uncovered meat and place it outside on the street, or in the garden or in the park, or in the backyard without a cover, and the cats come and eat it ... whose fault is it, the cats or the uncovered meat?

"The uncovered meat is the problem."

The sheik then said: "If she was in her room, in her home, in her hijab, no problem would have occurred."

Read the whole thing, if you have the stomach for it.  In this, you have illustrated in one awful piece all of the problems that this idea of a man being unable to resist a woman leads to.  First, it excuses men from responsibility for their own actions.  It allows a man to pretend he just loses control, when no such thing really happens, giving him permission to do what he shouldn’t be doing in the first place.

On a related note, I hear that Senate Democrats are proposing to add a law making this decision the law of the land.  The working title is "The Bill Clinton Protection Act of 2012."

Joking aside, the second problem is that it puts upon the woman the burden of his inability to control himself.  It leads to the woman being told to remain in her room, her home, and if she goes out at night, to dress less sexy, which is pretty much the exact logic that leads women to be forced to wear burqas for their own good.  And in the case of Mrs. Nelson, it means she has to go and find a new job while Mr. Knight only suffers the inconvenience of replacing her.

In the end, you get the feeling that the Iowa Supreme Court recognizes the deep incongruity involved here—that their decision just doesn’t make sense in light of sexual harassment law—but they felt that Dr. Knight shouldn’t be forced to choose between his marriage and a lawsuit.  And while I am not usually one to bring up the demographics of other people to attack their views, I think a picture of the Iowa Supreme Court is relevant, here:

And I think it is relevant, because all their sympathies seem to lie with the man who they don’t think can be expected to control himself, rather than the woman which he admits did nothing wrong getting fired because he is a horndog.

I think the better answer is found in a certain view of the law.  In the legal academy, there has long been a conflict between the moral view of the law and the so-called economic view of the law (studied in the field of legal study known as “law and economics”).  Oliver Wendell Holmes Jr. can be fairly credited with putting his finger on the issue and being one of the first to push the idea that the law should be viewed purely in terms of an economic transaction, in passages such as this in The Path of the Law:

Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can.

In the moral view of contract law, a contract is a sacred obligation and if you should breach it you pay damages in order to make the other person whole.  In the Economic view of it, it is a promise to pay certain damages in the event of breach, but there is nothing wrong with such a breach, but you still have to pay the damages.  So for instance imagine you have a contract with company A to sell widgets at $30 a piece.  But then company B offers to buy the same widgets at $35 a piece.  So you break the contract with company A, sell to company B.  Meanwhile Company A then tries to get a new supplier and you are liable for the difference in cost.  So if Company A finds the widgets at $32 a pop, then you owe Company A $2 for each, leaving an additional profit for you of additional $3 per widget.  So from the Holmesian view, this is what they call an “efficient breach” where you are better off having broken your agreement.  So it is seen as morally okay to have committed such a breach, but you still have to pay the damages.  Or so the Economic view of the law goes.

Likewise in the law of torts, a measure to protect the public only makes sense if the cost of the additional safety measure is less than the savings to those who are injured.  So if a supermarket is contemplating whether to coat its floors with a substance that significantly reduces the chances of a slip and fall, it makes sense if the cost of this coating is less than the cost to customers—in terms of medical care, lost wages due to injury, etc.—in not putting the substance on.  If a supermarket owner determines that it is more economically efficient to avoid placing the substance on the floor, the economic view of the law would say to the owner, “you did nothing wrong by not putting the coating on, but you still have to pay for your customers’ injuries.”

And the key to all of this is we say to the person who broke the contract because he had a better deal, “there is nothing wrong with what you did, but you still have to pay.”  Likewise, you say to the supermarket owner who chooses not to use the coating on the floor that would save his customers from injuries, “you didn’t do anything wrong by not using this coating.  But you still have to pay for their slips and falls.”  It’s just a part of the cost of doing business.

Of course this is an incredibly cold view of the world (and simplistic, I might add*) and I don’t normally ascribe to this point of view of the law, but in this case?  Well, let me say it this way.  I think his conduct is reprehensible and therefore he should pay.  But if you are not sure if his conduct was wrong--as the Iowa Supreme Court seemed to be--then they should say the following: if the husband decides he has to fire this woman to placate his wife’s jealousy and because he can’t keep his snake in its cage, he should go ahead and do just that and fire her... and then he should pay her damages.  If the courts really think this woman is an irresistible attraction to this man, they should say, “Dr. Knight, you didn’t do anything wrong (or at least we are not going to condemn you for it), but you still have to pay Mrs. Nelson for her damages.”  Why exactly it should be that Mrs. Nelson has to pay the price for his problems, his failure to conform himself to the law and the jealousy of his wife is beyond me.

And who knows?  If he is forced to pay the price for his conduct, maybe he would not have created this situation in the first place.  But even if he thinks he can't help himself and even if you believe him, he should pay the price for his failure, not this woman that he admits is innocent.

Of course the unfortunate thing in this case is that they sued under state law only, meaning that it is hard to set up a basis for appeal.  Why her lawyers refused to even raise federal law, as well as state law, is beyond me but evidently that is what they did and she is paying the price for it today.  This is likely to be the last word for Mrs. Nelson we can only hope the law itself is fixed, even if Mrs. Nelson herself never gets justice.

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* And there are all kinds of objections to this approach I am just not getting into, not the least being the incidence of fraud.  But I don’t want to get into a long argument about the value of this approach because they are not relevant to this discussion.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.