Too cute to work?
"Don't hate me because I'm cute!"

In New York, if you’re fired for being too cute, your boss may be guilty of gender discrimination.

In a case where it sounds like we are hearing only half of the story, a yoga and massage therapist claimed that her chiropractor boss and his wife (who was the COO of the practice) fired her solely because of the wife’s unjustified suspicions that the chiropractor had the hots for the massage therapist.

According to the therapist’s lawsuit, she was hired in April 2012 and everything was fine until June 2013, when the chiropractor told her that his wife might be jealous of her because she was “too cute.” Then, at the end of October 2013, the wife texted the therapist, saying, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step [sic] foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours after this text was sent, the chiropractor fired the therapist.

The following day, the wife/COO filed a complaint against the therapist with the New York City Police Department, accusing the therapist of making threatening phone calls.

(Again, I feel that “the other side of this story” is just screaming to get out.)

As we know, when a court is ruling on dismissal for failure to state legal claims, the court has to assume everything in the lawsuit is true.

Based on the assumption that everything the therapist claimed in her lawsuit was true, the Appellate Division of New York found that she had stated valid legal claims for gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. According to the Court, under both laws, “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.” Because the therapist alleged that the chiropractor “was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that [the wife] was motivated to discharge [her] by that same jealousy,” the claims could go forward.

The outcome would have been different, the Court said, if the wife had fired the therapist for having an affair with the chiropractor. “In such cases,” the Court said, “it was the employee’s behavior — not merely the employer’s attraction to the employee or the perception of such an attraction by the employer’s spouse — that prompted the termination.” But because the therapist alleged in her lawsuit that her relationship with the chiropractor was nothing but professional at all times, her claims were valid.

The Court also found that the therapist had stated a valid legal claim for defamation, based on the wife’s allegedly false report to the police.

A motion to dismiss for failure to state a claim is filed at the very beginning of the litigation, even before the defendant files an answer to the specific allegations. Denial of a motion to dismiss does not mean that the plaintiff wins — it means only that the parties will proceed with the litigation. The chiropractor and his wife may have evidence that the therapist did indeed make threatening phone calls to the wife, which would be a legitimate ground for discharge. Or they may not. We’ll have to wait and see.

Image Credit from flickr, Creative Commons license, by Cynthia L. McLaughlin.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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