Court: Firing Woman Due To Prior Porn Shoot Legal

The general rule of law in employment cases is that you can be fired for any reason, even a stupid one.  The reason does not have to be “wise, fair or correct,” so long as the true reason for the firing isn’t one prohibited by law.  The University of Colorado Health Science Center took that principle to its limit in the case of a fired medical resident. 

The hospital fired a medical resident (i.e. doctor in training), in part, because hospital employees discovered naked pictures of her on the Internet, taken before the resident took her job with the hospital.  The hospital said it did this because it was concerned that this would hurt its reputation.  In an appeal decided today by the Colorado Court of Appeals, the court held that this was a “business-related” consideration that “does not indicate a discriminatory purpose.”  Thus, this was a permissable reason for the hospital to fire the resident, and the hospital won its case.This holding is problematic. 

While the lawyers for the fired resident apparently failed to argue the point on appeal, for reasons that are unclear and may be procedural, Colorado also bans discrimination against someone based upon their legal away from work conduct.  While this statute was enacted to protect smokers, posing for pornographic pictures is legal conduct, and there was no allegation in this case that the pictures were taken on the job, or even that they were taken during the time period when the medical resident was employed. 

The lawyers for the fired resident did argue that this reason violated her First Amendment rights, something rebutted by a number of cases cited by the Court in its ruling, all but one of those cases involved someone engaging in misconduct at work, or accused of unlawful conduct away from work.  One U.S. Supreme Court case cited did involve a police officer fired for posing for pornographic pictures while away from work, but the state that case arose out of, unlike Colorado, did not have a statute protecting employees from disicpline for lawful conduct away from work.

As decided, the law in Colorado now appears to be that anyone who has ever done something in the past that might embarass an employer when it is ultimately discovered forfeits any protection under employment discrimination laws.  People who have previously posed for porn shoots in Colorado now bear a scarlet letter that deprives them of their legal rights in all future jobs that they may hold.

Another problematic aspect of the case is that the appellate court even reached the issue of whether it is legitimate to fire someone for having posed in pornography before they were even hired.  The Court didn’t have to reach the issue.  The medical resident in this case was on academic probation, was at the bottom of her class on written tests, and had consistently received poor performance evaluations prior to the discovery of the pornographic pictures.  She hadn’t met the specifically delinated standards she was required to meet on academic probation; the terms of her academic probation set before the pictures were discovered required her to earn “A”‘ and “B” grades, and she earned “C” and “D” grades.  This reason alone would have been sufficient to fire her. 

It certainly isn’t illegal to fire someone whose non-work conduct you don’t like, because their at work conduct violates a clearly established, clearly legitimate performance standard.  The law doesn’t require a hospital to continue to employ a bad surgeon because that surgeon happened to have been a porn star in the past, even if it was illegal to fire someone because they were a porn star in the past. 

The appeals court could have simply held that when a clearly sufficient objective reason for firing someone was present that nothing else mattered and could have refused to considered the pornography related second reason for the firing.  This could have prevented the court from making bad law in an otherwise easy case.  Instead, it plunged on in and made bad law that impacted everyone in Colorado, apparently because the lawyer for the employee in this case failed to make the right argument at the right time in the case.

There are other, more scholarly, reasons for concern about this case as well.  The court’s reasoning that discrimination against a former female porn model because she had nude pictures taken of her is not gender discrimination is a crude understanding of the link between gender discrimination and cultural meaning of pornography.  While both men and women pose for pornographic pictures, the cultural meaning of that is different for men than it is for women.  Similarly, the fact that the public reputation of an employer may be impacted by gender biases about pornography, should not open the door to allowing employers to consider that fact.

Likewise, the notion that a case can be decided by a judge, as this case was, rather than a jury, when the fundamental issue in question is the honesty of the employer, based simply on an affidavit from the employer claiming that the employer is telling the truth, is also questionable.  While there isn’t a constitutional or statutory right to a jury in a state civil case (the constitutional right to a jury extends only to criminal cases and to federal civil cases), there is a court rule in Colorado which creates this right and allowing a dispute over someone’s truthfulness to be resolved by affidavit seems question begging.  The ruling skirts the central role that juries play in finding facts in our legal system.

Despite all these problems with the ruling as a result of how it impacts the law in the state, it is unlikely to be taken up by the Colorado Supreme Court, or appealed by the lawyer for the woman fired.  Even if the woman won on the questionable aspects of the appellate court’s ruling, she would still lose the case.  And, it rarely makes sense to throw good money after bad in that situation. 

The public’s only real hope that the case might be pursued further to deal with this questionable ruling that impacts a great many employees, is that the employment lawyer might pursue it for free, because the lawyer may have a strategic interest in the law in the field in general for future cases

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Andrew Oh-Willeke

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