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Aug 23 2017

NY Appeals Court: No, You Can’t Fire Someone Because They’re “Too Cute”

Dilek Edwards worked as a massage therapist for Manhattan chiropractor Charles Nicolai, who is married to former Playboy centerfold Stephanie Adams. Adams is also a co-owner of the chiropractic practice. About a year into her employment Edwards began giving yoga lessons to Nicolai. Nicolai one day informed Edwards that his wife is likely to become jealous because Edwards was “too cute.” Edwards claims Adams texted her, warning her “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the F–K away from my husband and family!!!!!!” shortly after her boss admitted that his wife “might become jealous” due to Edwards’ yoga lessons. The following day Edward received an email from Nicolai, which stated: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

She didn’t return to the office; instead she filed a discrimination lawsuit against her employers. Her lawyers argued that Section 8-102(23) of the New York City’s Human Rights Law defines “gender” to include “a person’s gender identity, self-image, appearance, behavior or expression.” But Judge Shlomo Hagler of NY County Supreme Court disagreed saying that those terms were all meant to cover discrimination based on sexual identity to protect transgender employees. Well, Edwards persisted. She took her case to the Appellate Division and won its reinstatement yesterday.

In restoring the case, the court held:

Adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination . . .. Here, while plaintiff does not allege that she was ever subjected to sexual harassment at [her place of employment], she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.

It was the motivation behind the firing that was discriminatory and the court viewed it as just “one species of sex- or gender- based discrimination.” In an earlier blog post I had expected the case to come out in the other direction as it will not often be as clear in this case what the employers’ motivation may be and without any evidence of harassment or a hostile workplace, it could lead to the filing of many similar-type lawsuits.

Charles Nicolai (From his office’s website)

Dilek Edwards (From FB)

Stephanie Adams (Photo by Jamie McCarthy/WireImage)

In the Edwards case, the defendants filed a motion to dismiss the case before they even answered, so the case still has to drag through the discovery process. That means depositions, examination of texts; phone messages; and possibly social media posts, all of which will make the case go on for another few years. Which could make for some very dicey litigation as Ms. Adams has some interesting history and has done very well in life, business and the courtroom. Some salient facts: (1)She was a Playboy centerfold in November 1992. (2)At that time she was identified as the first openly lesbian centerfold. She obviously has since expanded her horizons. (3)She was injured in a scuffle with police in 2006 after an argument with a cabbie outside her apartment, according to the New York Daily News.The taxi-driver called the police claiming that she ‘flashed her vampire teeth’ and threatened to shoot him following an argument after he refused to carry her clothes up to her apartment. She claimed she was pushed to the ground when police officers arrived, an injury which left her with permanent neck and back injuries. Officers initially claimed that they performed a ‘controlled drop’ because they didn’t know if she was concealing a firearm. But they later admitted that her clothes were so tight-fitting that there would have been nowhere to conceal it. Adams was awarded $1.2 million – $385,000 more than her lawyers asked for; (4) In 2015, when the NYPD denied her a gun permit, she took them to court and won; (5) The permit denial was allegedly based on a number of domestic disputes with her husband and roommate some of which she was listed as the victim and others where she was listed as the perpetrator (6) She currently has more than a million Twitter followers and says she is now teaching yoga. Oh to be a fly on the wall in those proceedings. I suspect the parties may settle before it gets that far.

Follow me on Twitter at @OscarMichelen

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