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DEAR DAWG: We have an employee we let go a few months ago, and now she claims that it’s all because she is such an attractive woman that our female principal was jealous of her and how the principal’s husband (also one of our employees) was making eyes at her. You got that? Employee alleges she aroused jealousy in her supervisor because supervisor’s hubby has the hots for employee. So jealous principal cans attractive woman for being an attractive woman.
Would this amount to sex discrimination? THIS DOESN’T AFFECT ME DIRECTLY. I DON’T AROUSE JEALOUSY IN ANYONE.
DEAR THIS DOESN’T: Well, that’s a bit like the situation that developed in Edcouch-Elsa. It’s more complicated in EE, but the gist of the lawsuit is: “I’m good looking. Your husband has noticed. You are jealous. That’s why you fired me.”
In the suit, the plaintiff alleges that she was treated badly because she possessed:
Traits often associated with attractiveness and considered readily observable…such as good physical energy, exuberance, good posture, alertness, good hygiene, interest and pride in appearance; freedom from discomfort or pain; ease of mobility and flexibility, youthful appearance; lack of self-consciousness of personal features; healthy skin tone, tasteful adornment and other subtle traits and characteristics.
The suit alleges “that these ‘endowed gender traits, femininity, physical carriage, or a propensity for graceful aging or defying aging’ spurred her supervisor’s ‘spouse’s “biological or emotional attraction to her.’”
The court dismissed the case. Suits over sex discrimination have to be about discrimination that is based on sex. That may sound kinda obvious, but the court had to spell it out in this case. Importantly, discrimination based on sexual attractiveness is not discrimination based on sex. The court put it like this:
…we construe Cabrera’s claims—however uniquely framed and without commenting on the viability of said claims—to be claims of discrimination based on age and/or sex plus a secondary cause: attractiveness. However, to the extent Cabrera seeks to carve out an independent discriminatory characteristic (i.e., attractiveness), we reject such contention.
In other words, firing a person because they are attractive to the point that your spouse finds them desirable may be small minded, petty, and unfair but it’s not discrimination based on sex.
It’s Edcouch-Elsa ISD v. Cabrera, decided by the Court of Appeals for Corpus Christi-Edinburg on August 11, 2022. It’s published at 2022 WL 3257377.
DAWG BONE: LET’S REMEMBER THE MANTRA: ALL PERSONNEL DECISIONS ARE BASED ON JOB-RELATED, NON-DISCRIMINATORY AND NON-RETALIATORY REASONS.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: how “appropriate” is the coach?