Yet the court acknowledged that cases where the

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Yet the court acknowledged that cases where the employee was treated less favorably would be “more directly analogous.” Id. The court then discussed a
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Spring 2017 LER 590-E: GOVERNMENT REGULATION II 20 | P a g e 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 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 (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, as Nelson notes, 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 “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
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Spring 2017 LER 590-E: GOVERNMENT REGULATION II 21 | P a g e employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction. Notwithstanding the Eighth Circuit's care to leave that question unanswered, it seems odd at first glance to have the question of 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 because the employee did something to “deserve it.” 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.
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