Manhattan Judge Misses Mark On Gender Discrimination Claim

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Manhattan Judge Misses Mark On Gender Discrimination Claim

My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.

At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.

The Court concluded that the allegations could not survive the motion to dismiss since being attractive is a trait that could apply equally to both men and women. The Court explained:

“Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute" is alleged to mean. The reference to the term "too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to "too cute" is gender related, namely that the term was applied by plaintiff herein to men and women differently…With respect to whether appearance can be the basis of a discrimination claim under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?

Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.

Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.

This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.

This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].