The Difference Between Discrimination and Harassment

The Iowa Supreme Court recently ruled that employers can fire workers for being "irresistible", or did they? If nothing else the case demonstrates perfectly the difference between two concepts that the public often confuse: gender discrimination and sexual harassment.

Let's review the facts. Melissa Nelson was fired from her job as a dental assistant for being "irresistible" to her employer. He stated that he made sexual advances to her, which she refused. She sued for gender discrimination, and not harassment. The Court held that the conduct did not arise to the level of discrimination.

I have no idea why her attorney didn't sue for both discrimination and harassment. For what it's worth, I think the Iowa Court either missed, or the attorney failed to argue a key discrimination point: I sincerely doubt this dentist would've found men irresistible (I'm not sure this fact was established, so I'm reluctant to critique the Court for not considering it; it may well have been the attorney's mistake for not establishing it); as a result, he had two different standards for how men and women were to be treated. This is the definition of discrimination.

Harassment exists in two forms: Quid pro quo, and hostile work environment.

Quid pro quo requires the following:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature by the employer when:

Hostile work environment is defined as follows:

(The employer's unwelcome advances or conduct of a sexual nature) has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Clearly, harassment is more difficult to prove than gender discrimination. However, in this situation, the employer's conduct is likely more harassment than it is discrimination. The argument could be made that two different standards of conduct are expected of men and women, and this would most certainly constitute discrimination. But harassment is the better argument. The employer expected the employees to either put up with his lewd behavior, or behave in such a manner so as not to not make him ogle, even though other employees and even other female employees could behave the same way. Further, failure to do this was clearly grounds for termination.