Melissa Nelson v. James H. Knight DDS, P.C. and James Knight

IN THE SUPREME COURT OF IOWA
No. 11–1857

Filed July 12, 2013

MELISSA NELSON,

Appellant,

vs.

JAMES H. KNIGHT DDS, P.C. and
JAMES KNIGHT,

Appellees.

Appeal from the Iowa District Court for Webster County, Thomas J.

Bice, Judge.

A former employee appeals from the district court’s grant of

summary judgment to an employer in a sex discrimination case.

AFFIRMED.

Paige E. Fiedler and Emily E. McCarty of Fiedler & Timmer,

P.L.L.C., Urbandale, for appellant.

Stuart J. Cochrane and James L. Kramer of Johnson, Kramer,

Good, Mulholland, Cochrane & Driscoll, P.L.C., Fort Dodge, for appellees.
 2

MANSFIELD, Justice.1

Can a male employer terminate a long-time female employee

because the employer’s wife, due to no fault of the employee, is

concerned about the nature of the relationship between the employer and

the employee? This is the question we are required to answer today. For

the reasons stated herein, we ultimately conclude the conduct does not

amount to unlawful sex discrimination in violation of the Iowa Civil

Rights Act.

We emphasize the limits of our decision. The employee did not
bring a sexual harassment or hostile work environment claim; we are not

deciding how such a claim would have been resolved in this or any other

case. Also, when an employer takes an adverse employment action

against a person or persons because of a gender-specific characteristic,

that can violate the civil rights laws. The record in this case, however,

does not support such an allegation.

I. Facts and Procedural Background.

Because this case was decided on summary judgment, we set forth

the facts in the light most favorable to the plaintiff, Melissa Nelson.

In 1999, Dr. Knight2 hired Nelson to work as a dental assistant in

his dental office. At that time, Nelson had just received her community

college degree and was twenty years old.

Over the next ten-and-a-half years, Nelson worked as a dental

assistant for Dr. Knight. Dr. Knight admits that Nelson was a good

dental assistant. Nelson in turn acknowledges that Dr. Knight generally

1By previous order, the petition for rehearing in this case was granted and the
original opinion dated December 21, 2012, was withdrawn. This opinion is now
substituted.
2We will refer to the defendants Dr. James Knight and James H. Knight DDS,
P.C. collectively as “Dr. Knight.”
 3

treated her with respect, and she believed him to be a person of high

integrity.

On several occasions during the last year and a half when Nelson

worked in the office, Dr. Knight complained to Nelson that her clothing

was too tight and revealing and “distracting.” Dr. Knight at times asked

Nelson to put on her lab coat. Dr. Knight later testified that he made

these statements to Nelson because “I don’t think it’s good for me to see

her wearing things that accentuate her body.” Nelson denies that her

clothing was tight or in any way inappropriate.3
During the last six months or so of Nelson’s employment, Dr.

Knight and Nelson started texting each other on both work and personal

matters outside the workplace. Both parties initiated texting. Neither

objected to the other’s texting. Both Dr. Knight and Nelson have

children, and some of the texts involved updates on the kids’ activities

and other relatively innocuous matters. Nelson considered Dr. Knight to

be a friend and father figure, and she denies that she ever flirted with

him or sought an intimate or sexual relationship with him. At the same

time, Nelson admits that a coworker was “jealous that we got along.” At

one point, Nelson texted Dr. Knight that “[t]he only reason I stay is

because of you.”

Dr. Knight acknowledges he once told Nelson that if she saw his

pants bulging, she would know her clothing was too revealing. On

another occasion, Dr. Knight texted Nelson saying the shirt she had worn

that day was too tight. After Nelson responded that she did not think he

was being fair, Dr. Knight replied that it was a good thing Nelson did not

3Nelson recalls that Dr. Knight said her clothing was too “distracting” and that
he “may have” asked her to put on her lab coat. In any event, she testified that she put
on a coat whenever Dr. Knight complained to her about her clothing.
 4

wear tight pants too because then he would get it coming and going. Dr.

Knight also recalls that after Nelson allegedly made a statement

regarding infrequency in her sex life, he responded to her, “[T]hat’s like

having a Lamborghini in the garage and never driving it.” Nelson recalls

that Dr. Knight once texted her to ask how often she experienced an

orgasm. Nelson did not answer the text. However, Nelson does not

remember ever telling Dr. Knight not to text her or telling him that she

was offended.

In late 2009, Dr. Knight took his children to Colorado for
Christmas vacation. Dr. Knight’s wife Jeanne, who was also an employee

in the dental practice, stayed home. Jeanne Knight found out that her

husband and Nelson were texting each other during that time. When Dr.

Knight returned home, Jeanne Knight confronted her husband and

demanded that he terminate Nelson’s employment. Both of them

consulted with the senior pastor of their church, who agreed with the

decision.

Jeanne Knight insisted that her husband terminate Nelson

because “she was a big threat to our marriage.” According to her

affidavit and her deposition testimony, she had several complaints about

Nelson. These included Nelson’s texting with Dr. Knight, Nelson’s

clothing, Nelson’s alleged flirting with Dr. Knight, Nelson’s alleged

coldness at work toward her (Jeanne Knight), and Nelson’s ongoing

criticism of another dental assistant. She added that

[Nelson] liked to hang around after work when it would be
just her and [Dr. Knight] there. I thought it was strange that
after being at work all day and away from her kids and
husband that she would not be anxious to get home like the
other [women] in the office.
 5

At the end of the workday on January 4, 2010, Dr. Knight called

Nelson into his office. He had arranged for another pastor from the

church to be present as an observer. Dr. Knight, reading from a

prepared statement, told Nelson he was firing her. The statement said,

in part, that their relationship had become a detriment to Dr. Knight’s

family and that for the best interests of both Dr. Knight and his family

and Nelson and her family, the two of them should not work together.

Dr. Knight handed Nelson an envelope which contained one month’s

severance pay. Nelson started crying and said she loved her job.
Nelson’s husband Steve phoned Dr. Knight after getting the news

of his wife’s firing. Dr. Knight initially refused to talk to Steve Nelson,

but later called back and invited him to meet at the office later that same

evening. Once again, the pastor was present. In the meeting, Dr. Knight

told Steve Nelson that Melissa Nelson had not done anything wrong or

inappropriate and that she was the best dental assistant he ever had.

However, Dr. Knight said he was worried he was getting too personally

attached to her. Dr. Knight told Steve Nelson that nothing was going on

but that he feared he would try to have an affair with her down the road

if he did not fire her.

Dr. Knight replaced Nelson with another female. Historically, all of

his dental assistants have been women.

After timely filing a civil rights complaint and getting a “right to

sue” letter from the Iowa Civil Rights Commission, Nelson brought this

action against Dr. Knight on August 12, 2010. Nelson’s one-count

petition alleges that Dr. Knight discriminated against her on the basis of

sex. Nelson does not contend that her employer committed sexual
harassment. See McElroy v. State, 637 N.W.2d 488, 499–500 (Iowa 2001)

(discussing when sexual harassment amounts to unlawful sex
 6

discrimination and restating the elements of both quid pro quo and

hostile work environment sexual harassment). Her argument, rather, is

that Dr. Knight terminated her because of her gender and would not

have terminated her if she was male.

Dr. Knight moved for summary judgment. After briefing and oral

argument, the district court sustained the motion. The court reasoned in

part, “Ms. Nelson was fired not because of her gender but because she

was a threat to the marriage of Dr. Knight.” Nelson appeals.

II. Standard of Review.
We review the district court’s summary judgment ruling for

correction of errors at law. Pecenka v. Fareway Stores, Inc., 672 N.W.2d

800, 802 (Iowa 2003). We view the factual record in the light most

favorable to the nonmoving party, affording that party all reasonable

inferences. Id. Summary judgment is proper only if the record, so

viewed, entitles the moving party to judgment as a matter of law. Id.

III. Analysis.

Section 216.6(1)(a) of the Iowa Code makes it generally unlawful to

discharge or otherwise discriminate against an employee because of the

employee’s sex. Iowa Code § 216.6(1)(a) (2009). “When interpreting

discrimination claims under Iowa Code chapter 216, we turn to federal

law, including Title VII of the United States Civil Rights Act . . . .”

Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009). Generally, an

employer engages in unlawful sex discrimination when the employer

takes adverse employment action against an employee and sex is a

motivating factor in the employer’s decision. See Channon v. United

Parcel Serv., Inc., 629 N.W.2d 835, 861 (Iowa 2001).
Nelson argues that her gender was a motivating factor in her

termination because she would not have lost her job if she had been a
 7

man. See, e.g., Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 213, 222

(3d Cir. 2000) (affirming a jury verdict in a Title VII case because the

charge, taken as a whole, adequately informed the jury that sex had to

be a but-for cause of the adverse employment action). Dr. Knight

responds that Nelson was terminated not because of her sex—after all,

he only employs women—but because of the nature of their relationship

and the perceived threat to Dr. Knight’s marriage. Yet Nelson rejoins

that neither the relationship nor the alleged threat would have existed if

she had not been a woman.
Several cases, including a decision of the United States Court of

Appeals for the Eighth Circuit, have found that an employer does not

engage in unlawful gender discrimination by discharging a female

employee who is involved in a consensual relationship that has triggered

personal jealousy. This is true even though the relationship and the

resulting jealousy presumably would not have existed if the employee

had been male.

Tenge v. Phillips Modern Ag Co., like the present case, centered on

a personal relationship between the owner of a small business and a

valued employee of the business that was seen by the owner’s wife as a

threat to their marriage. 446 F.3d 903, 905–06 (8th Cir. 2006). In that

case, unlike here, the plaintiff had pinched the owner’s rear. Id. at 906.

She admitted that the owner’s wife “could have suspected the two had an

intimate relationship.” Id. Further, the plaintiff acknowledged she wrote

“notes of a sexual or intimate nature” to the owner and put them in a

location where others could see them. Id. In the end, the owner fired the

plaintiff, stating that his wife was “ ‘making me choose between my best
employee or her and the kids.’ ” Id.
 8

Reviewing this series of events, the Eighth Circuit affirmed the

summary judgment in favor of the defendants. Id. at 911. The Eighth

Circuit first noted the considerable body of authority that “ ‘sexual

favoritism,’ where one employee was treated more favorably than

members of the opposite sex because of a consensual relationship with

the boss,” does not violate Title VII. Id. at 908–09. The court distilled

that law as follows:

[T]he principle that emerges from the above cases is that
absent claims of coercion or widespread sexual favoritism,
where an employee engages in consensual sexual conduct
with a supervisor and an employment decision is based on
this conduct, Title VII is not implicated because any benefits
of the relationship are due to the sexual conduct, rather
than the gender, of the employee.

Id. at 909.

The Eighth Circuit believed these sexual favoritism precedents

were relevant. The court’s unstated reasoning was that if a specific

instance of sexual favoritism does not constitute gender discrimination,

treating an employee unfavorably because of such a relationship does not

violate the law either.

Yet the court acknowledged that cases where the employee was
treated less favorably would be “more directly analogous.” Id. The court

then discussed a decision of the Eleventh Circuit where an employee had

been terminated for being a perceived threat to the marriage of the

owner’s son. Id. (discussing Platner v. Cash & Thomas Contractors, Inc.,

908 F.2d 902, 903–05 (11th Cir. 1990)). It also cited three federal

district court cases, each of which had “concluded that terminating an

employee based on the employee’s consensual sexual conduct does not

violate Title VII absent allegations that the conduct stemmed from
unwelcome sexual advances or a hostile work environment.” Id. (citing
 9

Kahn v. Objective Solutions, Int’l, 86 F. Supp. 2d 377, 382 (S.D.N.Y.

2000); Campbell v. Masten, 955 F. Supp. 526, 529 (D. Md. 1997);

Freeman v. Cont’l Technical Serv., Inc., 710 F. Supp. 328, 331 (N.D. Ga.

1988)).

After reviewing these precedents, the Eighth Circuit found the

owner had not violated Title VII in terminating the employee at his wife’s

behest. As the court explained, “The ultimate basis for Tenge’s dismissal

was not her sex, it was Scott’s desire to allay his wife’s concerns over

Tenge’s admitted sexual behavior with him.” Id. at 910.
In our case, the district court quoted at length from Tenge, stating

it found that decision “persuasive.” However, Nelson argues there is a

significant factual difference between the two cases. As the Eighth

Circuit put it, “Tenge was terminated due to the consequences of her own

admitted conduct with her employer, not because of her status as a

woman.” Id. The Eighth Circuit added a caveat:

The question is not before us of whether it would be sex
discrimination if Tenge had been terminated because Lori
[the owner’s wife] perceived her as a threat to her marriage
but there was no evidence that she had engaged in any
sexually suggestive conduct.

Id. at 910 n.5. Nelson contrasts that situation with her own, where she
claims she “did not do anything to get herself fired except exist as a

female.”

So the question we must answer is the one left open in Tenge—

whether an employee who has not engaged in flirtatious conduct may be

lawfully terminated simply because the boss’s spouse views the

relationship between the boss and the employee as a threat to her

marriage. Notwithstanding the Eighth Circuit’s care to leave that
question unanswered, it seems odd at first glance to have the question of
 10

whether the employer engaged in unlawful discrimination turn on the

employee’s conduct, assuming that such conduct (whatever it is) would

not typically be a firing offense. Usually our legal focus is on the

employer’s motivation, not on whether the discharge in a broader sense

is fair. Title VII and the Iowa Civil Rights Act are not general fairness

laws, and an employer does not violate them by treating an employee

unfairly so long as the employer does not engage in discrimination based

upon the employee’s protected status.

In some respects, the present case resembles Platner. There a
business owner chose to terminate a female employee who worked on the

same crew as the business owner’s son, after the wife of the business

owner’s son became “extremely jealous” of her. Platner, 908 F.2d at 903.

The district court found that the son was “largely to blame for fueling

[the wife’s] jealousy,” and that the plaintiff’s conduct was “basically

blameless and no different from that of the male employees.” Id.

Nonetheless, the Eleventh Circuit found no unlawful discrimination had

occurred:

It is evident that Thomas, faced with a seemingly insoluble
conflict within his family, felt he had to make a choice as to
which employee to keep. He opted to place the burden of
resolving the situation on Platner, to whom he was not
related, and whose dismissal would not, as firing Steve
obviously would, fracture his family and its relationships. It
is thus clear that the ultimate basis for Platner’s dismissal
was not gender but simply favoritism for a close relative.

Id. at 905. Significantly, although Dr. Knight discusses Platner at some

length in his briefing, Nelson does not refer to the decision in her briefing

or attempt to distinguish it.4

4When asked about Platner at oral argument, Nelson’s counsel offered fair

criticism of some of the language used in the opinion. See Platner, 908 F.2d at 903 n.2.
Our research has found one case, not cited by the parties, where the court
arguably found the lack of an actual consensual relationship to be significant. In Mittl
 11

Nelson does, however, have three responses to Dr. Knight’s overall

position. First, she does not necessarily agree with Tenge. She argues

that any termination because of a supervisor’s interest in an employee

amounts to sex discrimination: “Plaintiff’s sex is implicated by the very

nature of the reason for termination.” Second, she suggests that without

some kind of employee misconduct requirement, Dr. Knight’s position

becomes simply a way of enforcing stereotypes and permitting pretexts:

The employer can justify a series of adverse employment actions against

persons of one gender by claiming, “My spouse was jealous.” Third, she
argues that if Dr. Knight would have been liable to Nelson for sexually

harassing her, he should not be able to avoid liability for terminating her

out of fear that he was going to harass her.

Nelson’s arguments warrant serious consideration, but we

ultimately think a distinction exists between (1) an isolated employment

decision based on personal relations (assuming no coercion or quid pro

quo), even if the relations would not have existed if the employee had
________________________
v. New York State Division of Human Rights, the complaining witness alleged she was
unlawfully terminated due to her pregnancy. 794 N.E.2d 660, 662 (N.Y. 2003). The
employer, an ophthalmologist, denied the discrimination and indicated he fired the
employee because of the insistence of his wife who “began displaying extreme animosity
toward [the employee], even questioning whether [her husband] was the father of the
child.” Mittl v. N.Y. State Div. of Human Rights, 741 N.Y.S.2d 19, 20 (App. Div. 2002),
rev’d, 794 N.E.2d 660. The intermediate appellate court overturned the agency finding
of pregnancy discrimination, concluding the employer “was forced to choose between
keeping his secretary on the payroll and saving his marriage.” Id. However, the New
York Court of Appeals found that substantial evidence supported the agency finding
that the employer had discriminated based on pregnancy. See Mittl, 794 N.E.2d at 663.
That court noted, among other things, that the employer had told the complainant her
“pregnancy was ‘becoming a problem’ in the office.” Id. The court added that certain
cases cited by the intermediate court were “inapposite” because they involved situations
where plaintiffs “were terminated in the aftermath of consensual sexual relationships
with their employers” whereas here “neither party alleges that the termination had
anything to do with an actual sexual relationship between the parties.” Id. at 664.
Notwithstanding this language in the court’s opinion, we do not believe Mittl ultimately
has any bearing on the present case because there was substantial evidence in Mittl
that the employer had engaged in unlawful, pregnancy-based discrimination, regardless
of whether a consensual relationship existed.
 12

been of the opposite gender, and (2) a decision based on gender itself. In

the former case, the decision is driven entirely by individual feelings and

emotions regarding a specific person. Such a decision is not gender-

based, nor is it based on factors that might be a proxy for gender.

The civil rights laws seek to insure that employees are treated the

same regardless of their sex or other protected status. Yet even taking

Nelson’s view of the facts, Dr. Knight’s unfair decision to terminate

Nelson (while paying her a rather ungenerous one month’s severance)

does not jeopardize that goal. As the Platner court observed, “ ‘[W]e do
not believe that Title VII authorizes courts to declare unlawful every

arbitrary and unfair employment decision.’ ” Id. at 905 (quoting Holder

v. City of Raleigh, 867 F.2d 823, 825–26 (4th Cir. 1989)).

Nelson’s viewpoint would allow any termination decision related to

a consensual relationship to be challenged as a discriminatory action

because the employee could argue the relationship would not have

existed but for her or his gender. This logic would contradict federal

caselaw to the effect that adverse employment action stemming from a

consensual workplace relationship (absent sexual harassment) is not

actionable under Title VII. See, e.g., Benders v. Bellows & Bellows, 515

F.3d 757, 768 (7th Cir. 2008) (holding that allegations that an employee’s

termination was based on the owner’s desire to hide a past consensual

relationship from his wife were “insufficient to support a cause of action

for sex discrimination”); see also Blackshear v. Interstate Brands Corp.,

No. 10–3696, 2012 WL 3553499, at *3 (6th Cir. 2012) (affirming

summary judgment for the employer where the employee presented

evidence that she was treated unfairly due to her supervisor’s jealousy of
her relationship with another employee, and noting that such “personal

animus . . . cannot be the basis of a discrimination claim under federal
 13

or Ohio law”); West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531, 544–45

(E.D. Va. 2002) (granting summary judgment to an employer when an

employee was removed from a project because of a supervisor’s animosity

toward the employee over her termination of their consensual

relationship but there was no evidence the supervisor had made

unwanted advances to the employee following the termination of that

relationship).

Nelson raises a legitimate concern about a slippery slope. What if

Jeanne Knight demanded that her spouse terminate the employment of
several women? Of course, a pretext does not prevail in a discrimination

case. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct.

2742, 2751–52, 125 L. Ed. 2d 407, 421–22 (1993) (discussing how a

plaintiff can prove that an employer’s reason for a firing was not

legitimate, but a pretext for discrimination). If an employer repeatedly

took adverse employment actions against persons of a particular gender,

that would make it easier to infer that gender and not a relationship was

a motivating factor. Here, however, it is not disputed that Jeanne Knight

objected to this particular relationship as it had developed after Nelson

had already been working at the office for over ten years.

It is likewise true that a decision based on a gender stereotype can

amount to unlawful sex discrimination. Price Waterhouse v. Hopkins,

490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989)

(“As for the legal relevance of sex stereotyping, we are beyond the day

when an employer could evaluate employees by assuming or insisting

that they matched the stereotype associated with their group, for [i]n

forbidding employers to discriminate against individuals because of their
sex, Congress intended to strike at the entire spectrum of disparate

treatment of men and women resulting from sex stereotypes.” (Citation
 14

and internal quotation marks omitted.)), superseded by statute, Civil

Rights Act of 1991, Pub. L. No. 102–166, 105 Stat. 1071, 1075–76, as

recognized in Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, ___, ___

S. Ct. ___, ___, ___ L. Ed. 2d ___, ___ (2013); see also City of L.A., Dep’t of

Water & Power v. Manhart, 435 U.S. 702, 707, 98 S. Ct. 1370, 1375, 55

L. Ed. 2d 657, 664–65 (1978) (“It is now well recognized that

employment decisions cannot be predicated on mere ‘stereotyped’

impressions about the characteristics of males or females.”); Schwenk v.

Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“Discrimination because
one fails to act in the way expected of a man or woman is forbidden

under Title VII.”). If Nelson could show that she had been terminated

because she did not conform to a particular stereotype, this might be a

different case. But the record here does not support that conclusion. It

is undisputed, rather, that Nelson was fired because Jeanne Knight,

unfairly or not, viewed her as a threat to her marriage.5

The present case can be contrasted with another recent Eighth

Circuit decision. In Lewis v. Heartland Inns of America, L.L.C., a female

front desk employee at a hotel claimed she lost her job because she did

not have the “Midwestern girl look.” 591 F.3d 1033, 1037 (8th Cir.

2010). As the court explained, “The theory of [Lewis’s] case is that the

5As we have noted above, Jeanne Knight said that she thought it was “strange

that after being at work all day and away from her kids and husband that [Nelson]
would not be anxious to get home like the other [women] in the office.” Viewed in
isolation, this statement could be an example of a gender-based stereotype. However,
as with Jeanne Knight’s other comments regarding Nelson, this statement was linked to
a specific concern about Nelson’s relationship with her husband. This statement
immediately followed Jeanne Knight’s claim that Nelson “liked to hang around after
work when it would be just her and [Dr. Knight] there.” Viewing the summary
judgment record, we come to the same conclusion as the district court: There is no
genuine issue of material fact that the reason for Nelson’s firing was Jeanne Knight’s
demand that she be fired, which was based in turn upon Jeanne Knight’s perception
that the relationship between Dr. Knight and Nelson was a threat to the marriage.
 15

evidence shows Heartland enforced a de facto requirement that a female

employee conform to gender stereotypes in order to work the A shift.” Id.

In fact, the evidence showed that motel management later procured video

equipment so they could observe the appearance of front desk applicants

prior to hiring. Id. at 1042. The Eighth Circuit reversed the district

court’s grant of summary judgment to the employer and remanded for

trial. Id. However, the critical difference between Lewis and this case is

that Nelson indisputably lost her job because Dr. Knight’s spouse

objected to the parties’ relationship. In Lewis, by contrast, no
relationship existed.

Nelson also raises a serious point about sexual harassment. Given

that sexual harassment is a violation of antidiscrimination law, Nelson

argues that a firing by a boss to avoid committing sexual harassment

should be treated similarly.6 But sexual harassment violates our civil

rights laws because of the “hostile work environment” or “abusive

atmosphere” that it has created for persons of the victim’s sex. See, e.g.,

Faragher v. City of Boca Raton, 524 U.S. 775, 786–90, 118 S. Ct. 2275,

2283–84, 141 L. Ed. 2d 662, 675–78 (1998). On the other hand, an

isolated decision to terminate an employee before such an environment

arises, even if the reasons for termination are unjust, by definition does

not bring about that atmosphere.7

As a Michigan appellate court observed regarding a male

employee’s claim that he had been subjected to sex discrimination:

6Allegedly, Dr. Knight told Nelson’s husband that he “feared that he would try to

have an affair with her down the road if he did not fire her.”
7The record indicates that Dr. Knight made a number of inappropriate

comments toward Nelson that are of a type often seen in sexual harassment cases. But
as already noted, Nelson does not allege in this case that she was a victim of sexual
harassment.
 16
We do not read the [Michigan Civil Rights Act or CRA]
to prohibit conduct based on romantic jealousy. . . .
Interpreting the CRA’s prohibition of discrimination based on
sex to prohibit conduct based on romantic jealousy turns the
CRA on its head. The CRA was enacted to prevent
discrimination because of classifications specifically
enumerated by the Legislature and to eliminate the effects of
offensive or demeaning stereotypes, prejudices, and biases.
It is beyond reason to conclude that plaintiff’s status as the
romantic competition to the woman Vajda sought to date
places plaintiff within the class of individuals the Legislature
sought to protect when it prohibited discrimination based on
sex under the CRA.

Plaintiff proceeded to trial on a theory of
discrimination based on romantic jealousy. Plaintiff did not
claim and the evidence did not establish that plaintiff was
required to submit to sexually-based harassment as a
condition of employment. Nor did the evidence presented at
trial support a theory of gender-based discrimination.
Plaintiff established, at most, that Vajda’s alleged adverse
treatment of plaintiff was based on plaintiff’s relationship
with Goshorn, not plaintiff’s gender. Vajda may have had a
romantic purpose in initially pursuing Goshorn and may, as
the trial court surmised, have intended to eliminate plaintiff
so that he could pursue Goshorn’s affections. However,
Vajda’s alleged harassment was not conduct that is
proscribed by the CRA because it was not gender-based.
Indeed, if Vajda’s motive was to win the affection of Goshorn,
it would not matter if the person Vajda perceived to be
standing in his way was male or female. As such, it is
evident that plaintiff’s gender was not the impetus for
Vajda’s alleged conduct, but rather was merely coincidental
to that conduct.

Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 74 (Mich. Ct. App. 2001)

(citations omitted); see also Huffman v. City of Prairie Vill., 980 F. Supp.

1192, 1199 (D. Kan. 1997) (“Plaintiff suggests that the actions taken by

Lt. Young as a result of Lt. Young’s beliefs concerning plaintiff’s

relationship with another police officer constitute gender discrimination

because such actions would not have been taken against plaintiff but for

her gender. We cannot agree with plaintiff’s expansive definition of

discrimination based upon sex.”); Bush v. Raymond Corp., 954 F. Supp.
490, 498 (N.D.N.Y. 1997) (“[P]laintiff’s discriminatory discharge claim
 17

fails insofar as it asserts that plaintiff was discharged because of

Rusnak’s perception that plaintiff and Sawyer had a sexual

relationship.”). Our decision today is consistent with these authorities.

IV. Conclusion.

As we have indicated above, the issue before us is not whether a

jury could find that Dr. Knight treated Nelson badly. We are asked to

decide only if a genuine fact issue exists as to whether Dr. Knight

engaged in unlawful gender discrimination when he fired Nelson at the

request of his wife. For the reasons previously discussed, we believe this
conduct did not amount to unlawful discrimination, and therefore we

affirm the judgment of the district court.

AFFIRMED.

All justices concur except Cady, C.J., Wiggins and Hecht, JJ., who

concur specially.
 18
#11–1857, Nelson v. James H. Knight DDS, P.C.
CADY, Chief Justice (concurring specially).

I concur in the majority opinion, but write separately to further

explain the basis and rationale for the decision. Melissa Nelson set forth

a claim for sex discrimination recognized by law, but the facts of the case

did not establish the claim.

Our state and federal civil rights laws were enacted to eradicate

various forms of discrimination from society. These laws prohibit

employment discrimination based on numerous grounds, including

discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1) (2006);

Iowa Code § 216.6(1)(a) (2009). The primary purpose of this law has

been to ensure that similarly situated employees are not treated

differently because their sex differs. Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 71, 97 S. Ct. 2264, 2270, 53 L. Ed. 2d 113, 123

(1977).

While the goal behind prohibiting sex discrimination in the

workplace is fundamental to a complete society, the task of determining

a more precise meaning of sex discrimination has largely been left for the

courts. Discrimination is abhorrent to the powerful echoes of the
principle of equality that still resonate today from the voices of our

forefathers centuries ago, but the struggle to understand and change

remains. Yet, as revealed by our history, the process provided by the

courts can often be the best environment for those echoes to be heard

with greater clarity, aided by the benefit of a greater understanding

achieved over the passage of time. A sharper meaning of sex

discrimination, however, can be elusive, not only due to constraints on

understanding, but also because of the inherent difficulty of fully
capturing the intent of the legislature within an environment dominated
 19

by the venerable doctrine of employment at will, which still receives

broad support. See Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275,

280–82 (Iowa 2000) (reviewing the history of the at-will employment

doctrine).

These challenges to defining sex discrimination in the workplace

have, at times, created controversy and divisiveness, especially when

decisions by courts are not fully explained or when court decisions are

not fairly read and interpreted or accepted. The task has also been

compounded because the statutory language handed down by the
legislature for the courts to interpret and apply in each case could not be

more general. This law declares nothing more than workplace

discrimination “because of . . . sex” is illegal. See Iowa Code

§ 216.6(1)(a). Additionally, although we often presume Title VII and the

Iowa Civil Rights Act to have similar scope and meaning, see Hulme v.

Barrett, 449 N.W.2d 629, 631 (Iowa 1989), federal courts often declare

that Congress provided little legislative history and explanation to guide

courts in interpreting the prohibition against discrimination based on

“sex.” See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63–64,

106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49, 57–58 (1986).8

8Supporters of this view of the legislative history of Title VII often note that the
federal legislation passed without any significant debate or explanation to expand on
the underlying legislative intent. See, e.g., Meritor, 477 U.S. at 63–64, 106 S. Ct. at
2404, 91 L. Ed. 2d at 57–58; see also N. Morrison Torrey, Indirect Discrimination Under
Title VII: Expanding Male Standing to Sue for Injuries Received as a Result of Employer
Discrimination Against Females, 64 Wash. L. Rev. 365, 385 (1989) (arguing the
amendment to add sex to the list of discriminatory grounds went without challenge and
essentially without comment, even though the bill faced months of debate in the
Senate). However, there is recent authority suggesting that greater legislative history
exists. See Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the
Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J.
Women & L. 137, 155–60 (1997) (describing the background, history, debate, and
voting on the Civil Rights Act); Cary Franklin, Inventing the “Traditional Concept” of Sex
Discrimination, 125 Harv. L. Rev. 1307, 1326–29 (2012) (highlighting arguments by
Representatives Martha Griffiths and Katharine St. George that adding “sex” to the Civil
 20

In the end, of course, the inherent difficulty of defining sex

discrimination is understandable because its meaning is often more

obvious in principle than when it is applied to a particular factual

circumstance. Yet, the accumulation of court cases continues to shape

its meaning, all seeking to express the intention of the legislature and to

fulfill the purpose of these statutes. Perhaps this approach was the

intent of the legislature.

Since the enactment of this nation’s civil rights law in 1964, courts

have generally interpreted “sex” discrimination in the workplace to mean
employment discrimination as a result of a person’s gender status. See,

e.g., Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (“Sex

stereotyping based on a person’s gender non-conforming behavior is

impermissible discrimination . . . .”). Of the legislative history that is

available for courts to use to determine legislative intent, it was mostly

clear that gender, not sexual activity, was the sole focus of the

legislation. See Mitchell Poole, Comment, Paramours, Promotions, and

Sexual Favoritism: Unfair, But Is There Liability?, 25 Pepp. L. Rev. 819,

846–48 (1998) (noting the historical background). Thus, courts have

generally recognized that discrimination exists in the workplace when

similarly situated employees are treated differently “because they differ

with respect to . . . sex.” Trans World Airlines, 432 U.S. at 71, 97 S. Ct.

at 2270, 53 L. Ed. 2d at 123. More to the point, the differential

________________________
Rights Act would ameliorate the unfair labor environment created by so-called
“protective” laws, which dated to a period in which women were considered property
and severely limited a woman’s ability to obtain certain employment); Rachel Osterman,
Comment, Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban
on Sex Discrimination Was an Accident, 20 Yale J.L. & Feminism 409, 415 (2009)
(describing the history of the Civil Rights Act in the Senate after the bill left the House
of Representatives). This history could leave room to conclude Title VII was intended to
address more than distinctions based on gender as it has been traditionally understood
by our courts.
 21

proscribed by the law “must be a distinction based on a person’s sex, not

on his or her sexual affiliations.” DeCintio v. Westchester Cnty. Med. Ctr.,

807 F.2d 304, 306–07 (2d Cir. 1986). In other words, differential

treatment based on an employee’s status as a woman constitutes sex

discrimination, while differential treatment on account of conduct

resulting from the sexual affiliations of an employee does not form the

basis for a sex-discrimination claim. Id. at 308 (concluding that

prohibiting terminations based on sexual affiliation would distort the

meaning of the word “sex” in the context of Title VII and involve the
EEOC and federal courts in the policing of personal relationships).

This distinction serves as the foundation of this case and other

such cases in which employees suffer adverse employment consequences

because they are involved in opposite-sex personal relationships with

their employer.9 The complexity of such cases is not necessarily tied to

the complexity of the law as much as the complexity of human

relationships and interactions with others. Nevertheless, the law does

not escape some blame for the difficult nature of the issue in light of the

countervailing employment-at-will doctrine, which permits employers to

terminate employees for reasons personal to them, so long as the will of

the employer is not discriminatory or otherwise against public policy.

See Fitzgerald, 613 N.W.2d at 280–82. This law is our Iowa law. Id.

Thus, while the loss of a job is often devastating to an employee, and at

times unfair, these considerations do not play a role under our

employment-at-will doctrine, and our exceptions to this law, such as sex

discrimination, are only based on the underlying discriminatory

9In this case, the reference to personal relationships only refers to heterosexual
relationships. Both Nelson and Dr. Knight are married to opposite-sex spouses, and
this case is evaluated in that context.
 22

motivation of the decision maker. See Jasper v. H. Nizam, Inc., 764

N.W.2d 751, 762 (Iowa 2009) (noting wrongful-termination claims may

not be based “on generalized concepts of socially desirable conduct”). Of

course, the unfairness is enhanced for employees when the termination

results from a personal relationship with the employer because only the

employee suffers the loss of a job, while the other participant in the

relationship does not. This result can make acceptance of the law even

more difficult.

What has emerged from this complex area of the law is the general
legal principle that an adverse employment consequence experienced by

an employee because of a voluntary, romantic relationship does not form

the basis of a sex-discrimination suit. See Kahn v. Objective Solutions,

Int’l, 86 F. Supp. 2d 377, 382 (S.D.N.Y. 2000) (collecting cases).

Moreover, this general rule is not confined to relationships involving

sexual intimacy. The same rule is applied to consensual affiliations

involving sexually suggestive conduct. See Tenge v. Phillips Modern Ag

Co., 446 F.3d 903, 910–11 (8th Cir. 2006) (holding no sex discrimination

occurred when an employee was fired in a case in which the employee

engaged in physical conduct of a suggestive and risqué nature with her

employer and wrote sexual or intimate notes to her employer); Platner v.

Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990)

(holding no sex discrimination occurred when an employee was fired

after engaging in sexually suggestive conduct with her supervisor, who

was also the owner’s son). When employees are terminated due to

consensual, romantic or sexually suggestive relationships with their

supervisors, courts generally conclude the reason does not amount to
sex discrimination because the adverse employment consequence is

based on sexual activity rather than gender.
 23

While courts have been slow to examine the core reasoning for

excluding consensual sexual affiliations between employees and

employers from the protection of sex-discrimination laws, such an

examination offers helpful insight. Close personal relationships between

men and woman can often produce personal emotions and conduct that

are unfamiliar to the workplace relationship targeted by the general

prohibition against gender discrimination in the workplace. See Keppler

v. Hinsdale Twp. High Sch. Dist. 86, 715 F. Supp. 862, 869 (N.D. Ill.

1989). To be sure, a consensual personal relationship alters the
workplace relationship and produces responses and consequences that

laws protecting an employee’s right to work in an employment

environment free from gender discrimination were not intended to

protect. See id. This observation does not pass judgment on the conduct

that defines a personal relationship between an employer and employee,

but identifies the practical change in an employment relationship that

occurs when a relationship extends beyond the workplace. It also

recognizes that the law against workplace discrimination only seeks to

protect a woman from discrimination based on her status as a woman in

the workplace, not on her consensual sexual relationships or personal

affiliations with her employer. DeCintio, 807 F.2d at 306–07. The same

protection, of course, applies to men. Under this common-sense

rationale, a response by the employer to a consensual personal or

romantic relationship that becomes a reason for termination is not based

on the sex of the employee, but conduct arising from the relationship.10

10However, conduct constituting sexual harassment occurring after the end of a

consensual, intimate relationship can violate Title VII and the Iowa Civil Rights Act.
See Johnson v. West, 218 F.3d 725, 729–30 (7th Cir. 2000); Walko v. Acad. of Bus. &
Career Dev., LLC, 493 F. Supp. 2d 1042, 1048–49 (N.D. Ill. 2006); Schrader v. E.G. & G.,
Inc., 953 F. Supp. 1160, 1167–68 (D. Colo. 1997); Babcock v. Frank, 729 F. Supp. 279,
288 (S.D.N.Y. 1990); Williams v. Joe Lowther Ins. Agency, Inc., 177 P.3d 1018, 1024–25
 24

No fault or blame for the relationship is considered, only the practical

reality of its presence in the workplace as a potential ingredient of

adverse employment consequences. See, e.g., Freeman v. Cont’l Technical

Servs., Inc., 710 F. Supp. 328, 330–31 (N.D. Ga. 1988).

On the other hand, within the broad spectrum of cases that

describe either conduct or gender status lies employer–employee

relationships that, even though they are close, produce no suggestion of

sexual activity or intimacy to support concluding the termination was

grounded on conduct. As with so many legal issues, however, a gray
area exists somewhere between these two groups of cases in which the

law draws a line based on the individual facts and circumstances of each

case.

In this case, Nelson has unmistakably stated a claim protected by

our laws against sex discrimination.11 She asserts that the sexual

attraction her employer developed for her, which was the reason for her

termination, was his creation and not the result of a personal
________________________
(Mont. 2008); see also Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.
2001).
11Nelson actually articulated several specific claims of sex discrimination. She
claimed discrimination occurred because she would not have been fired if she had been
a man. She also claims she was fired simply for going to work as a woman attractive to
her employer. She also claims she was fired due to the discriminatory stereotype that
an attractive woman who works with a married man is a threat to the man’s marriage.
All her arguments, however, collapse into a single claim. For example, Nelson argues
she would not have been fired if she were a man; the Knights’ marriage would not have
been threatened in the same way if she were a (heterosexual) man. As to the
discriminatory stereotype that attractive women who work closely with married men are
a threat to the man’s marriage (derived from Jeanne Knight’s demand that Nelson be
fired), a threat derived from an actual, ongoing, personal relationship is not a
stereotype. Cf. Staub v. Proctor Hosp., 562 U.S. __, ___, 131 S. Ct. 1186, 1193, 179
L. Ed. 2d 144, 154 (2011) (holding that an employer’s stated reasons for termination
must be separately analyzed to determine whether they were influenced by those of an
allegedly biased supervisor). In truth, all the claims asserted by Nelson boil down to
whether the relationship engaged in by Nelson and Dr. Knight supplied a
nondiscriminatory reason for the termination and eliminated any reasonable inference
that gender was the motivating factor.
 25

relationship she maintained with him. Consequently, she maintained

she did nothing for the law to now require her to assume responsibility

for his attraction to her except exist in the workplace as a woman.

It is abundantly clear that a woman does not lose the protection of

our laws prohibiting sex discrimination just because her employer

becomes sexually attracted to her, and the employer’s attraction then

becomes the reason for terminating the woman once it, in some way,

becomes a problem for the employer. If a woman is terminated based on

stereotypes related to the characteristics of her gender, including
attributes of attractiveness, the termination would amount to sex

discrimination because the reason for termination would be motivated by

the particular gender attribute at issue. See Smith, 378 F.3d at 574

(noting an employer who discriminates against women because they do

not wear dresses or makeup engages in sex discrimination because the

discrimination is due to the gender of the victim); Gerdom v. Cont’l

Airlines, Inc., 692 F.2d 602, 608–09 (9th Cir. 1982) (holding a hiring

restriction imposing a maximum weight on female flight attendants

violated Title VII and noting the restriction “[s]ubsumed . . . the view

that, to be attractive, a female may not exceed a fixed weight”).

Similarly, implicit in our laws against sex discrimination is that

both men and woman are responsible for their own sexual desires and

responses to attributes of the sex of the other, and neither sex is

responsible to monitor or control the desires of the other sex. Thus, just

as an employer cannot fire an employee for not conforming to a sex

stereotype embraced by the employer or their customers, an employer

cannot legally fire an employee simply because the employer finds the
employee too attractive or not attractive enough. Cf. Price Waterhouse v.

Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1790–91, 104 L. Ed. 2d
 26

268, 287–88 (1989), superseded by statute, Civil Rights Act of 1991, Pub.

L. No. 102–166, 105 Stat. 1071, 1075–76, as recognized in Univ. of Tex.

Sw. Med. Ctr. v. Nassar, ___ U.S. ___, ___, 133 S. Ct. 2517, 2526, ___

L. Ed. 2d ___, ___ (2013); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d

1033, 1037 (8th Cir. 2010) (holding an employee suffered sex

discrimination when terminated by the employer because he did not feel

she had a “Midwestern girl look”).

Accordingly, Nelson has stated a claim supported by our law. Yet,

legal claims must also be supported by facts. When placed under the
scrutiny of this legal proposition, Nelson’s claim fails because the facts

failed to support her claim. The fact of the matter is Nelson was

terminated because of the activities of her consensual personal

relationship with her employer, not because of her gender. A review of

the summary judgment record bears out this conclusion.

It is an undisputed fact in this case, viewing the evidence in a light

most favorable to Nelson, that Nelson and Dr. Knight developed a

consensual personal relationship. Similarly, it is undisputed that this

relationship extended well beyond the workplace. Nelson and Dr. Knight

communicated with each other outside the workplace on matters

extraneous to the employment. Their relationship was personal and

closer than the relationships Dr. Knight maintained with the other

employees. Dr. Knight readily acknowledged he grew attracted to Nelson

and was developing feelings of intimacy, and it is accepted for purposes

of summary judgment that these feelings were more developed than

those possessed by Nelson. Yet, during a frustrating moment involving a

co-employee, Nelson confided in Dr. Knight that he was the reason she
continued to work at the office. She also acknowledged she maintained a

closer relationship with Dr. Knight than he maintained with the other
 27

employees in the office. Additionally, Nelson acknowledged that another

employee in the office viewed her conduct towards Dr. Knight as flirting,

although Nelson believed this employee felt she flirted with Dr. Knight

because the employee was jealous of the close relationship she enjoyed

with Dr. Knight.

The communication between Nelson and Dr. Knight included

comments by Dr. Knight that were marked by sexual overtones. These

communications have been explained by the majority. One evening after

texting her about the tight shirt she wore to work that day, he followed
up with another text message indicating it was good that her pants were

also not too tight because he would “get it coming and going.” Another

time, in response to a comment regarding the relative infrequency of her

sexual activity, Dr. Knight told Nelson, “That’s like having a Lamborghini

in the garage and not ever driving it.” Dr. Knight also once texted Nelson

to ask how often she experienced orgasms. While these comments would

commonly be viewed as inappropriate in most any setting and, for sure,

beyond the reasonable parameters of workplace interaction, they

nevertheless were an undeniable part of the consensual personal

relationship enjoyed by Nelson and Dr. Knight. The banter, at least,

revealed a relationship that was much different than would reasonably

be expected to exist between employers and employees in the workplace.

The personal relationship also lasted six months and did not end

until Dr. Knight’s wife discovered Nelson and Dr. Knight were texting

each other while Dr. Knight was out of state on a vacation. Dr. Knight’s

wife examined phone records to discover the texting only because she
 28

had grown suspicious of the relationship between Nelson and her

husband.12

Mixed motives, of course, can support a sex-discrimination claim.

See Hopkins, 490 U.S. at 246–47, 109 S. Ct. at 1788–89, 104 L. Ed. 2d

at 285–86. Yet, the record contained no evidence to suggest a factor

other than the relationship between Nelson and Dr. Knight was a

motivation for the termination or that the relationship was a pretext for a

discriminatory intent.

The absence of sexual intimacy in the relationship between Nelson
and Dr. Knight, and the absence of sexually suggestive behavior on the

part of Nelson, does factually distinguish this case from the line of cases

that do not recognize a sex-discrimination claim based on a consensual,

romantic relationship. Yet, this distinction does not shift this case into

the line of gender-discrimination cases that protect women from

discrimination based on their physical appearance. Even if Nelson was

fired because Dr. Knight was physically attracted to her, the attraction

and resulting threat to the Knights’ marriage surfaced during and

resulted from the personal relationship between Nelson and Dr. Knight,

and there is no evidence in the summary judgment record tending to

prove the relationship or Nelson’s termination were instead consequences

of a gender-based discriminatory animus. Ultimately, the question

comes down to whether a reasonable fact finder could find that

Dr. Knight’s reasons for terminating Nelson were, even in light of the

relationship, responses motivated by Nelson’s status as a woman.

12The summary judgment record revealed Jeanne Knight, who also worked in
the office, felt Nelson flirted with her husband at work and that she was cold towards
her at work. She also felt Nelson “liked to hang around after work when it would just
be her and [Dr. Knight] there.” She felt Nelson also engaged in attention-seeking
behavior in the office and enjoyed working close to her husband.
 29

Courts evaluate this evidence “in light of common experience as it bears

on the critical question of discrimination.” Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949, 57 L. Ed. 2d 957, 967

(1978).

True to our governing legal authorities, a sex-discrimination claim

predicated on physical appearance accompanied by a consensual

personal relationship between the employee and employer requires proof

that the physical appearance of the plaintiff was a gender-based reason

for the adverse employment action.13 An adverse employment action
based on a personal relationship that existed here between Nelson and

Dr. Knight—or its consequences—is not actionable discrimination based

on sex under our statute.

In view of the undisputed fact of a personal relationship between

Nelson and Dr. Knight, Nelson has failed to engender a fact question on

her claim that Dr. Knight’s decision to terminate her was motivated by

her status as a woman. The relationship, even in the context of

summary judgment, included enough activity and conduct to support a

determination as a matter of law that Nelson was terminated as a

response to the consensual personal relationship she maintained with

13In determining whether the physical attraction and threats to the employer’s
marriage were responses to Nelson’s conduct or responses to Nelson’s status as a
woman, the presence of a consensual personal relationship would not typically give rise
to any inferences of gender-based sex discrimination within the relationship. Indeed,
inferences drawn from such a relationship and its effect on the workplace would be
consistent with the opposite conclusion. See Preston v. Wis. Health Fund, 397 F.3d
539, 541 (7th Cir. 2005) (“[Romantically motivated] favoritism is not based on a belief
that women are better workers, or otherwise deserve to be treated better, than men;
indeed, it is entirely consistent with the opposite opinion.”). For sure, romantic,
sexually intimate relationships between employees and employers that have been found
by courts to not support a claim of sex discrimination are often nevertheless marked by
physical attractiveness and perceived threats to a marriage. See Tenge, 446 F.3d at
907; Platner, 908 F.2d at 903. Thus, a gender-based sex-discrimination claim involving
a personal or sexual relationship is not established merely by evidence that an employer
was sexually or romantically attracted to an employee.
 30

Dr. Knight. In the context of the personal relationship, there was

insufficient evidence tending to show that Nelson’s status as a woman

was also a motivating reason.

It is important to observe that a critical aspect of the entire

analysis centers on the consensual and voluntary nature of the personal

relationship. The law that navigates through the intersection between

sex discrimination and personal workplace relationships to reach the

destination of nondiscriminatory conduct requires willing participants to

the relationship. Of course, a personal relationship between an employer
and subordinate can give rise to subtle issues of power and control that

may make the line between consensual and submissive relationships

difficult to draw. See generally Billie Wright Dziech, Robert W. Dziech II

& Donald B. Hordes, ‘Consensual’ or Submissive Relationships: The

Second-Best Kept Secret, 6 Duke J. Gender L. & Pol’y 83 (1999). This

concern has been particularly observed in cases involving claims of

sexual harassment, either hostile-environment claims or quid pro quo

claims. See Ammons-Lewis v. Metro. Water Reclamation Dist., 488 F.3d

739, 746 (7th Cir. 2007) (finding existence of voluntary relationship did

not preclude sexual-harassment claim). Thus, the consensual aspect of

a relationship is pivotal to the analysis of the claim of discrimination

based on a personal relationship. In this case, it is undisputed the

relationship was consensual. If it was not consensual, a turn in the

analysis would occur. Yet, Nelson made no legal or factual claim that a

relationship with Dr. Knight was submissive, objectionable, or harassing

in any way, and there was no evidence in the record to hint the

relationship was not jointly pursued. The role of consent is important to
the responsibility of employees and employers of both sexes to monitor

and control their conduct in the workplace.
 31

While there is only a single standard for summary judgment, see

Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011); Iowa

R. Civ. P. 1.981; see also Fed. R. Civ. P. 56, as a practical matter, it

should be used sparingly in employment-discrimination cases. See Hon.

Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev.

503, 519–22, 528–29 (2008). Ordinarily, employment discrimination

cases generate genuine issues of material fact because they are “often

fact intensive and dependent on nuance in the workplace.” Fercello v.

County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010). Yet, the claim
of discrimination in this case was actually framed by Nelson without

relying on inferences or conflicting evidence. In other words, Nelson did

not argue that Dr. Knight’s expressed reason for terminating her was

actually a pretext for an underlying discriminatory intent to terminate

her based on her status as a woman. Instead, Nelson used the same

reasons to show the termination was discriminatory as Dr. Knight used

to show the termination was not discriminatory. She never offered an

explanation for how those reasons establish a discriminatory animus.

Thus, the resolution of the case turns on context: Was Nelson’s

termination a response by Dr. Knight to a personal relationship or was it

his response to Nelson’s status as a woman? It is undisputed the

relationship existed, and Nelson failed to generate a fact question on her

claim that her termination was motivated by a stereotype involving her

status as a woman.

While summary judgment must be granted with caution, courts

are required to grant judgment for the movant when the legal standards

have been met. In this case, there was insufficient evidence offered by
Nelson in light of the undisputed evidence of a consensual personal

relationship that would permit a reasonable fact finder to conclude by a
 32

preponderance of the evidence that Dr. Knight terminated Nelson based

on her status as a woman. In the final analysis, this court has carefully

considered the issue presented and has sought to understand its

complexity with the seriousness and attention demanded of all cases.

Research has failed to uncover any appellate court in the nation that has

recognized sex discrimination under facts similar to those in this case,

and it has failed to identify any state legislature that has defined sex

discrimination to include adverse employment consequences from a

consensual personal relationship. If, in fact, Congress or our legislature
intended for adverse employment consequences from consensual

personal relationships between employers and employees to be protected

as sex discrimination, these legislative bodies can clarify or change the

law to reflect such intent. In the meantime, our law and this court

remains devoted to carrying out the important legislative goal of

eradicating discrimination from society, but this case simply lacked the

facts to establish discrimination. Without proof of sex discrimination,

the employment-at-will doctrine followed in Iowa guides the outcome.

Wiggins and Hecht, JJ., join this special concurrence.