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A New York Court Says No, But The Answer Should Be Yes

Tuesday, Apr. 23, 2002

If a man fires his pregnant secretary to appease his jealous wife, can the secretary sue him, pursuant to discrimination law, for damages resulting from her termination?

In an opinion issued earlier this month in the case of Mittl v. New York State Division of Human Rights, an appellate court in New York said no. But the better legal answer is that a sex discrimination suit should indeed be possible under these circumstances.

The plaintiff in the New York case worked as a secretary for a physician at Columbia Presbyterian Hospital. About a year after starting work, she announced that she was pregnant. Her boss initially greeted her announcement "in good spirit" and gave her advice about seeking disability benefits during maternity leave. But, as the date grew closer, the tone of his reaction changed. The reason for the change, it turned out, was that his wife was angry because she believed that her husband might have fathered the child.

There was no apparent evidence that the wife's belief was correct; indeed, the appellate court described it as "irrational." Nor was there even any evidence that the doctor-secretary relationship was anything other than professional. Nevertheless, the doctor's wife clung to her belief. She made hostile phone calls to the plaintiff and, at some point, even threatened to fire her, although she had no authority to carry out such a threat.

The doctor at first found his wife's reaction humorous, but his efforts to calm her down were ultimately unsuccessful. He thus fired his secretary to placate his wife.

The Lawsuit and the Decisions of the Agency and the Appeals Court

The secretary then filed a lawsuit alleging that she had been subjected to pregnancy discrimination, in violation of New York's anti-discrimination law. (That law is roughly coextensive with the federal ban on sex and pregnancy discrimination, embodied in Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1976.)

Her boss was found liable by the agency charged with implementing this law, and ordered to pay nearly $200,000 in damages. However, with little or no analysis, the appellate court reversed the agency's decision.

The only facts the court seemed to find relevant were that the doctor had not initially reacted negatively to the secretary's announcement, nor had he given her any initial indication that her condition would jeopardize her employment. Without evidence of animosity toward the pregnancy by itself, the court refused to call the doctor's actions pregnancy discrimination. Rather, the firing was, according to the court, "at worst, disloyalty to a valued secretary."

The court described the husband's decision between firing the secretary and potentially losing his wife as a "Hobson's choice" - connoting that the choice was impossible, or really was no choice at all. According to the court's logic, then, the husband had essentially been compelled to fire his secretary and should not be faulted for doing so.

Even on its own terms, the court's logic was faulty (and, as I will explain below, the court's logic was also contrary to law). A firing may still constitute pregnancy discrimination even if the pregnancy was not the sole factor in the firing.

Why "Rational Jealousy" Cases Are Different From the Mittl Case

The New York court that ruled against the secretary also noted that, at least in New York, "[h]usbands presented with just this Hobson's choice have found support in the courts in the face of charges of sex discrimination law."

These cases were different, however, for most of them involved an employer who was indeed romantically involved with an employee, whom he then fired to avoid further marital conflict. In Mittl, in contrast, the doctor apparently was never involved with the secretary despite his wife's suspicions.

This is a distinction with a difference. It is more convincing to suggest that husbands who truly do have affairs - as compared to those whose wives simply imagine or fear affairs - are put to a true Hobson's choice: fire the employee or lose your wife.

Of course, that still leaves the question of why the employee should suffer because of a predicament that the husband - who, after all, is the one who has cheated - largely created for himself.

Firings Due to "Rational Jealousy" Constitute Discrimination As Well

There is also another problem with citing the "rational jealousy" cases, in which an affair did occur, to support the holding in Mittl. To the extent that these cases suggest that a firing due to "rational jealousy" does not constitute sex discrimination, they are themselves poorly reasoned and contrary to controlling discrimination law principles.

Consider, for example, the case of Kahn v. Objective Solutions, Int'l, decided in 2000 by a federal district judge in the Southern District of New York. There, the plaintiff alleged that a company president had an affair with her while she was on his staff, broke off the relationship because "his family disapproved," and then fired her. She sued for sex discrimination, but the court rejected her claim on the ground that the termination was based on a sexual relationship, but not on sex itself.

This distinction cannot hold water. Granted, a scenario like the one in Kahn does not squarely present a problem of sexual harassment. As long as the intimate relationship was truly welcome and voluntary (not submitted to because of an implicit or explicit threat of consequences), the relationship itself is not harassment. And as long as the termination was not an act of retaliation based on the employee's refusal to continue to submit to sexual conduct, the termination is not harassment either.

Expressly applying different rules to men and women is an obvious example of sex discrimination. Less obvious examples include any action taken against an employee that would not have been taken against an employee of the opposite sex, or an employee who was not pregnant.

Contrary to the suggestion of the Mittl court, animosity towards one sex or toward pregnancy is not legally required. It is not the motivation for the action, but the mere fact of disparate treatment that makes these actions illegal.

Thus, a "well-meaning" employer who seeks to "protect" women from physically hard work, by refusing to hire them or limiting their assignments, is just as liable as an employer who refuses to hire women simply because he hates them. Similarly, an employer who refuses to hire men because he thinks they are too superior for "women's work" is just as liable to discrimination suits by the men, as an employer who refuses to hire men because she hates them.

Put simply, if a woman is fired, and a man in her situation would not have been, then that is sex discrimination under the law, too. Similarly, if a pregnant woman is fired, and a non-pregnant person in an analogous situation would not have been, then that is pregnancy discrimination.

In Mittl, Would A Man, Or A Non-Pregnant Woman, Also Have Been Fired?

Thus, the real question in the "rational jealousy" cases is whether husband-employers who fire their female ex-paramours would have taken a similar action against their male employees. The answer is almost certainly no, save for the rare bisexual employer who has relationships with both men and women and then fires both when he tires of them.

The reason female employees are vulnerable to the jealous insistence of their bosses' wives is precisely, as Title VII prohibits, "because of . . . sex." It is their sex that made them a desirable paramour for the boss in the first instance; their sex that created the predicate for jealousy; and their sex that got them fired. That's sex discrimination, plain and simple.

Similarly, the real question in "irrational jealousy" cases such as Mittl is whether husband-employers who fire female employees whom their wives imagine to be sexual competitors would have taken a similar action against their male employees. Again, the answer is almost certainly no, except in the rare scenario of the bisexual employer.

To see why, imagine that instead of telling his wife his secretary was pregnant, the doctor in Mittl instead had told her that one of his male employees had contracted a sexually transmitted disease - one that the doctor himself also, hypothetically, happened to suffer from. Solely because the employee was male, the wife's jealousy would not have been triggered, and the firing would not have occurred.

Courts Have Effectively, and Wrongly, Given Jealous Wives Hire/Fire Authority

The consequence of allowing an employer's wife to dictate who gets hired and fired is that women are deprived of equal opportunity to work. Wifely jealousy, if controlling, may keep women from being hired in the first place. It may also, as the plaintiff in Mittl learned, get them fired - and even get them fired at the worst possible moment, when they need health and pregnancy benefits the most.

More subtly, effectively giving wives power to choose and control their husband's female co-workers can also prevent the female co-workers from advancing and enjoying equal work opportunities. For example, the "wife's veto" may deprive female workers of assignments that require travel or close working conditions with male bosses - or even with more senior male co-workers who also have jealous wives.

Wives who refuse to have their husbands work with women, and husbands who decline to work with women "so as not to upset my wife," are carrying out sex discrimination. Rather than nodding sympathetically at their domestic woes, we should fault them for putting their relationship troubles above workplace equality, and creating limitations on female employees' opportunities that do not apply to men.

No one would think a husband should be able to maintain an all-white workforce because his wife is a bigot. Nor would anyone nod sympathetically if an employer explained that it would just be "easier" for him at home if he declined to hire African Americans. Nor would a husband be taken seriously if he claimed in court that he was put to an impossible Hobson's choice because his racist wife would leave him if he did not fire his African American secretary - so the secretary simply had to be fired.

Yet courts have no trouble validating parallel situations when it is sex or pregnancy, rather than race, that is the deciding factor.

In the end, there is no federal law saying husbands need to make their wives happy, while there is one saying they can't unfairly discriminate against their female employees. Perhaps the court in Mittl, interpreting New York's analogous law, should have preferred disloyalty to an irrational wife, than disloyalty to a secretary at the very point when she needed loyalty - and benefits - most.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects. Grossman's other articles on sex discrimination and sex harassment may be found in the archive of her pieces on

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