Nelson advances a straightforward but for argument i

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Nelson advances a straightforward “but for” argument: I would not have been terminated “but for” my gender. 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
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Spring 2017 LER 590-E: GOVERNMENT REGULATION II 19 | P a g e 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. 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 908–909. 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.
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