In a decision of apparent first impression in New York, an appellate court has ruled that the sexual jealousy of an employer’s spouse may be considered gender discrimination under New York State and New York City law (Edwards v. Nicolai). In this case, the husband and wife were co-owners of a chiropractic office. The practice hired a female massage therapist and yoga instructor. The husband was her direct supervisor. The complaint alleged that during the course of plaintiff’s employment, her relationship with the husband was “purely professional.” During the course of employment, the husband allegedly told her that his wife might become jealous because she was “too cute.” Several months thereafter, the wife sent the employee a text message stating “You are NOT welcome any longer … DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Soon thereafter, the employee claimed she received an email from the husband 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 trial court granted the employer’s motion to dismiss plaintiff’s claims of gender discrimination. However, the appellate court overruled the decision based on a prior decision which held that “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”

Take away: Employers (especially those in New York) should give broad consideration to possible gender-based claims before taking adverse action against an employee where the gender of the employee is related to the employment action.