The New York Times Will Need to Start Using Its Online Thesaurus

To find similes for the word "hypocritical". Really, the irony here is just too rich-the Gray Lady, ostensible supporter of equal rights, slayer of the patriarchy, champion of political correctness everywhere, can't handle a single request by its executive editor for equal pay.

Seriously, you can't make this stuff up.

Irresistible Attraction Force Meets Immovable Spousal Object

A case out of the Iowa Supreme Court has generated an unwarranted amount of attention this weekend.  The opinion is noteworthy mainly because it highlights the lines drawn between legitimate at-will and illegal employment decisions that discriminate against a protected group because of that group's status.

The facts--an attractive dental assistant was fired after more than 10 years of good work performance because she was considered by her boss, and more importantly the boss's wife, as a threat to his marriage   Specifically, he terminated the assistant's employment after his wife, who was suspicious of the employee already, discovered they were texting suggestively, and the dentist himself believed that he might eventually have an affair with the woman.  The assistant sued, claiming gender discrimination.

The Iowa Supreme Court got the case after the lower court granted summary judgement for the employer dentist  and affirmed the lower court's decision   The Court noted that the basis for the termination was not the plaintiff's gender, but her threat to the relationship between the dentist and his wife.  The fact that there would not have been a threat if the assistant had been male misses the point, said the Court.  The issue is whether gender was the basis for the decision--it was not.  The employer wins, 7-0.

There have been a number of commentators saying how unfair it is that someone could get fired because they were "too attractive."  But that is exactly the lesson of at-will employment.  An employee can be fired for any reason that is not protected by a federal or state statute.  Fairness really isn't the issue--the Court here took a silly and purely gratuitous shot at the employer for not giving the employee more severance pay, but that didn't affect its opinion.You can be fired because you are an impediment to a boss having an affair with another person, and you can be fired because people think you are having an affair with the boss  Those decisions don't have a gender-based motivation.  Of course, you can't be fired legally for personally refusing to have an affair with the boss--that would be quid pro quo sexual harassment, a particular form of gender discrimination 

It's obviously better not to find yourself in a situation like this, but it's a better result if you recognize that there could be a harassment problem coming down the track, and preempt it, rather than letting things get to the full, hostile work environment stage.

Important safety tip--this case arose in the context of a single termination--I suspect the result would have been different if the wife demanded and got the termination of every woman working in the office.  A mass female firing would have raised at least an inference of gender-based decision making, and would have been actionable.

If at First You Don't Succeed…

Sue, sue, again. At least that's the approach of the plaintiffs' litigation team in the late and unlamented Dukes v. Walmart litigation that was unceremoniously bounced from the ranks of class-action cases by the Supreme Court last year. You may recall that the Court determined that the Ninth Circuit's approval of the class of approximately 1.5 million women who worked at Walmart during the relevant period was inappropriate and improvident. The majority on the Court focused on the allegation in the class certification that the plaintiffs were all similarly affected by Walmart's centralized policy of decentralization that allowed individual store managers to make employment decisions based on a scheme affected by centralized and pervasive anti-woman bias.
If that sounds like unmitigated lawyer doubletalk, then you agree with Justice Scalia and the rest of the majority.
The plaintiffs' law firm has now refiled the case, this time on behalf of only 90,000 current and former female employees who work for Walmart in California. But this doesn't seem to solve the problem mentioned above-that if these decisions were decentralized, it's almost per se impossible to certify a class based on the resulting treatment. In fact, this will be Walmart's defense in this case--namely that each individual employment decision, or at least each individual store manager's employment decisions, will stand on their own and cannot provide the basis for such a wide-ranging class.
The plaintiffs are alleging that they have new statistical evidence that was not put before the Supreme Court in the original litigation. Short of some kind of clear link between these thousands of employment decisions at issue, plaintiffs may find it's "class dismissed", even in the relatively employee-hospitable environs of the Ninth Circuit.