The Appellate Division First Department has allowed a yoga instructor's sex discrimination case to move forward, involving allegations that she was fired because her boss's spouse was jealous of her.  According to the complaint, the employee's boss told her that his spouse was likely to be jealous of her because she was “too cute”.  The employee was later terminated after allegedly receiving threatening text messages from her boss's wife (who was also a co-owner of the business). 

The trial court had originally dismissed the sex discrimination claims (under the state and city human rights laws) but this decision by the intermediate appeals court covering New York City reversed and found that the complaint adequately stated a claim under these statutes because the employee adequately alleged that her termination was motived by her sex.  While she was not sexually harassed, because she had a professional relationship with her boss (i.e., did not act inappropriately) and because her termination was based on interest that was “sexual in nature”, she stated a claim for sex discrimination.  When deciding a motion to dismiss, the court takes the allegations in the complaint as true and, therefore, distinguished this situation from cases where the employee has actually had a sexual or inappropriate relationship with her boss. The decision can be read here. 

While referred to in the NYC press as the "too cute" lawsuit, the court actually found that the employee failed to allege an "appearance discrimination" claim.  There is little discussion of this claim in the decision, but it's an issue we have written about in the past and noted that, typically, there is no such thing as appearance discrimination – i.e., that you are too attractive or too unattractive for a job.  But, we have also noted that, it's possible to allege such a claim where the reason your appearance is unacceptable is protected – so because of a disability or your age.  So, it's possible, that under the right set of facts, your appearance is unacceptable because of your sex – and maybe then we will see a successful sex discrimination claim based on this appearance theory.