Iowan Dentist's Firing of Assistant Because of Her Perceived Threat to His Marriage Was Not Unlawful Gender Discrimination, But Was it Unlawful Sexual Harassment?

| Marcus, Ellen

Between baking cookies, assembling toys and driving to the in-laws, you may have missed the Iowa Supreme Court’s decision on December 21 that a male dentist was not liable to his former female assistant of ten-and-a-half years – admittedly the best assistant he ever had – for gender discrimination.  The dentist fired the assistant after:  he complained that her clothing was too tight, he told her that she would know her clothes were too revealing if she saw his pants bulging, he texted her to ask how often she experienced an orgasm, he observed that the apparent infrequency in the assistant’s sex life was “like having a Lamborghini in the garage and never driving it,” and he was confronted by his wife, who believed the assistant was a “big threat” to the dentist and wife’s marriage and demanded that the assistant be terminated, which he then did by reading a prepared statement to the assistant in the presence of his church pastor.  

The case never went to trial but was decided by the lower court in the dentist’s favor on summary judgment, because, according to the court, there was no genuine issue of fact that the assistant was fired “because she was a threat to the marriage of [the dentist]” and not because of her gender.  The all-male Iowa Supreme Court, which underwent personnel changes of its own recently, agreed and affirmed the judgment.  The decision is being heralded as a victory for “family values.”  In concluding that there was no genuine issue of fact for a jury as to whether the assistant’s gender was a motivating factor in the dentist’s decision to fire her, the court noted that the dentist went on to hire another female assistant and that all of his assistants have been women. 

The assistant did not bring a claim for sexual harassment, so the Iowa Supreme Court did not comment on whether she would have been able to put such a claim to a jury.  Title VII of the Civil Rights of 1964 prohibits discrimination in the workplace “with respect to [her], compensation, terms, conditions or privileges of employment, because of [her] . . . sex.”   State civil rights laws, such as Iowa’s, have similar prohibitions.   Courts recognize that sexual harassment – including a hostile or abusive work environment – is a form of unlawful gender discrimination, because it goes to the conditions of employment.  To prevail on a hostile work environment claim, the dental assistant would have to prove that she was subjected to unwelcome and offensive conduct, that the conduct was sufficiently severe or pervasive to alter the conditions of employment by creating an abusive working environment, and that the conduct was directed at her because of her sex.  The dentist would likely argue, if faced with such a claim, that he did not direct the conduct at her because of her sex but because of some other reason.  Whether the Iowa Supreme Court would recognize that the intent to discriminate on the basis of sex is evident from sexual propositions and innuendo that the dentist presumably would not have directed towards a male assistant is an open question.