The employee, Melissa Nelson, worked as a dental assistant for Dr. Knight. On several occasions during the last year and a half of her employment, Dr. Knight complained to Nelson that her clothing was too tight and revealing and distracting. Dr. Knight at times asked Nelson to put on her lab coat because he did not think it was “good [for him] to see her wearing things that accentuate her body.” Nelson denied that her clothing was tight or in any way inappropriate.
During the last six months or so of Nelson’s employment, Dr. Knight and Nelson started texting each other on both work and personal matters outside the workplace. Both parties initiated texting, and neither party objected to it.
In late 2009, Dr. Knight’s wife, Jeanne, who was also an employee in the dental practice, found out that her husband and Nelson were texting each other. Jeanne demanded that Dr. Knight terminate Nelson’s employment because “she was a big threat to [their] marriage”. Dr. Knight then terminated Nelson. Nelson’s husband contacted Dr. Knight upon getting the news of his wife’s firing. Dr. Knight assured Nelson’s husband that nothing was going on, but that he feared he would try to have an affair with Nelson down the road if he did not fire her. Upon termination, Nelson was given 1 month’s pay and replaced with another female employee.
Iowa’s employment at-will doctrine guided the outcome. The Court ultimately found there was a lack of proof of sex discrimination. Research had failed to uncover any US appellate court that had recognized sex discrimination in similar circumstances, and it had failed to identify any state legislature that had defined sex discrimination to include adverse employment consequences from a consensual personal relationship.
If Dr. Knight’s practice was located in Canada, how would the courts have treated Ms. Nelson’s dismissal? Canadian employers, in the absence of just cause for termination, must provide employees with reasonable notice of dismissal or pay in lieu of notice. There are no at-will employment jurisdictions in Canada. Provincial employment standards legislation would have dictated the minimum notice required, but certain factors such as Ms. Nelson’s age and lengthy tenure with Dr. Knight suggest that the reasonable notice period at common law would have far exceeded minimum standards. Dr. Knight would have had to pay Ms. Nelson considerably more in Canada than the one moth’s pay he actually provided her with in Iowa.
Physical appearance is not a protected ground in any provincial human rights legislation in Canada. Ms. Nelson would not likely succeed with a human rights claim in Canada because of discrimination based on her appearance alone. However, she may find more success if she articulated her claim in terms of gender discrimination. Presumably, Dr. Knight’s wife would not take issue with his employment of attractive men in the office. Therefore, Ms. Nelson’s gender was a critical factor in Dr. Knight’s decision to dismiss her. Apart from gender playing a role in her termination, Ms. Nelson might also claim that she was the victim of sexual harassment in the work place. Granted much of the conduct between Dr. Knight and Ms. Nelson appeared consensual, Dr. Knight’s comments about her revealing clothing, the suggestive nature of their inter-office banter and some of the topics of conversation likely crossed several lines and would be deemed inappropriate conduct in most workplaces.
Overall, while Canada does not have specific laws against appearance-based discrimination, employers should be aware that employees may pursue remedies for discrimination in a variety of ways. While seemingly obvious, it is also worth reinforcing that employers should be aware that displaying behaviours similar to that of Dr. Knight may pose serious issues. If an employer texts an employee about their sex life, as Dr. Knight did to Ms. Nelson, it may not only offend your spouse but, it may also pose other serious issues including a sexual harassment law suit.
Co-authored by Melissa Pearson, student-at-law.