Can An Employee in Ontario Be Fired For Being Attractive?

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On December 21, 2012, a dentist who fired his long-time hygienist in 2010 for being too attractive was given the unanimous thumbs up by Iowa’s all-male Supreme Court.

Melissa Nelson, a 32-year-old hygienist, had worked for 53-year-old dentist James Knight for 10 years. Both were married with children. She considered him as a father figure. He, on the other hand, considered her in, shall we say, a slightly different light.

The dentist had allegedly complained to Nelson that her clothes were too tight, and that she would know her clothes were too revealing if she “saw his pants bulging”. After Nelson had made a comment about the infrequency in her sex life, he stated “that’s like having a Lamborghini in the garage and never driving it”.   However, Nelson never complained about this or other sexually suggestive comments.

Knight's wife, who also worked in the dental office, allegedly found text messages between the dentist and Nelson and demanded the hygienist be fired.

Knight advised Nelson that he had to fire her because the “relationship” had become a detriment to his family and it was in everyone’s best interest that the two of them not work together. He later told Nelson’s husband that while she was the best dental assistant he had ever had, he was worried he was getting too personally attached to her and that he feared he would try to have an affair with her if he didn’t fire her. She received one month's severance pay.     

The hygienist filed a lawsuit for gender discrimination, claiming if she were a male, she would not have been fired. There were no allegations of sexual harassment.

In affirming the lower court’s ruling, the high court ruled that employers can terminate employees if there is an “irresistible attraction,” even if the employee was neither inappropriate nor flirtatious. According to the court, Knight's actions were motivated by feelings and emotions and not gender – while they may not be fair, they cannot be considered unlawful discrimination under the Iowa Civil Rights Act. Justice Mansfield stated that allowing the lawsuit would stretch the definition of discrimination.

I am not sure the result would be the same in Ontario. It seems to me that the employer in this case is effectively saying that he had to fire the hygienist because (1) his wife insisted upon it, and (2) if he didn’t fire her he might end up having an affair. Clearly, the basis of both concerns is the fact that the employer was sexually attracted to the employee. If the attraction – i.e. the feelings and emotions – is based on a person’s sex, and the attraction was the reason for termination, then why is it not unlawful discrimination?

It is a very interesting decision.

David J. Spears is a Partner with the law firm of BrazeauSeller.LLP. He practices in the areas of employment & labour law. This article can also be found on David’s Employment Law Blog.  To follow David’s blog (or to view other posts), click here: OttawaEmploymentLawBlog

David can be reached at 613-237-4000 ext. 207 or at dspears@brazeauseller.com.  For more information about David, please visit www.brazeauseller.com.

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