I hate to be an attractive nuisance
I think I can say with some certainty that I never thought my interests in law and feminism would collide to defend a woman who proclaimed, “I want to be tits on a stick.” But then, I also never thought we’d ever have to live in a world without Gary Coleman.
But today, Elie Mystal’s post at Above the Law on Debrahlee Lorenzana, the former Citibank employee suing for being terminated because she was “too hot,” surprised me. In light of a video circulating of Lorenzana, in which she states her desire to have breast augmentation surgery in order to attract professional men, Mystal declares Lorenzana made herself an “attractive nuisance.”
“Ha! Attractive nuisance!” you might say if you vaguely remember the term from torts class, and then also remember that Lorenzana was fired for being a smoking hot liability. But if Mystal’s goal was to make a funny legal pun, he does so at the expense of accuracy. The attractive nuisance doctrine basically says that if you have something attractive to kids on your land — let’s say, a big rusty swing-set in the middle of your yard — it’s up to you to put a fence up to keep kids from playing on it. If you don’t, and a kid sneaks onto your land, plays on the swing-set, and breaks his arm — it’s your fault.
That’s right, the attractive nuisance doctrine relates only to children not grown-ass men. The doctrine was created specifically because we think that children can’t fully appreciate the risks and dangers associated with playing on things rusty broken down swing-sets or understand the concept of property boundaries.
So it would seem to me that Mystal is really arguing that all men are children. Or maybe, more generously, that men revert to a child-like decision making state when shown giant breasts and shouldn’t be held responsible for their actions. I could get behind this new theory of Mystal’s — but only if it means we can send all the men to daycare with a library of Hustler magazines and commence our female take-over of the world.
Clever, misleading puns aside — Mystal goes even further, calling it Lorenzana’s “fault” that men were distracted by her looks: “[S]urely when a woman places objects in her boobs for the specific purpose of attracting a ‘professional’ man, she’s got to assume some responsibility when men stare.”
Is it just me, or do “attract men” and “get fired,” seem like two totally different things? If Lorenzana made a video about how she wanted to get fired from a bank for having breasts in the size and shape of regulation soccer balls, I can understand how her statement of intent might be relevant here. But seeing as Lorenzana’s suit is about getting fired for being attractive, not about whether or not she knows she’s attractive, it just seems like one more excuse for Mystal to go on a bizarre blame rampage.
Even overlooking the legal word-play inaccuracies, Mystal just gets it fundamentally wrong, ignoring the actual issue of the suit (wrongful termination) and talking about it like it’s a sexual harassment claim. In doing so, he also manages to make callous demeaning comments about Lorenzana while simultaneously stomping all over any kind of notions of gender-fairness.
But maybe after looking at pictures of Lorenzana all day, Mystal just needs a nap. Or better yet — a time out.
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Ms. Klonick,
I am surprised that everyone is taking this story at face value. Do people really believe that Ms. Lorenzana was actually fired for being too good looking? Now I understand that Citibank managed to have $11 billion in subprime writedowns in a single quarter (some sort of record I think) which would be call into question just how smart their management is. However, one would have to be truly stupid to fire any person based on how they looked. The photographs of Ms. Lorenzana that I have seen show a woman wearing clothing that were not the least bit out of place in any corporate workplace (though not so good in coal mine probably). Unless those photographs are entirely unrepresentative of how Ms. Lorenzana dressed at work, what possible reason could anyone have for firing this woman based on her clothing? How exactly would this termination have occurred? Did the men in the office complain to their boss about this overly good looking, well dressed woman was distracting them from their work? I don’t thinks so unless they were catty drag-queens.
This story just does not add up.
Naturally, you’re correct that there is a plausible explanation for Citibank’s termination of Ms. Lorenzana. That’s why she’ll have to survive a motion for summary judgment.
But that’s merely a plausible reason, not necessarily the reason she was terminated. If at any point one of her supervisors came up to her and told her to dress less seductively, then she’s got a reasonable case.
It’s absolutely possible to fire someone for distracting coworkers with her looks or to strike black jurors systematically while offering pretexts having nothing to do with race (http://www.feministe.us/blog/archives/2010/06/02/african-americans-routinely-blocked-from-juries-in-the-south/) and to provide a reasonable sounding justification for the act. That doesn’t mean that it’s the actual motivation.
In response to another comment. See in context »Hello Ford,
I am going to way out on a limb and guess that Citibank followed the Skelly Process which means that they gave a verbal warning, written warning, and a suspension before firing Ms. Lorenzana. The nature of the employers concerns with Ms. Lorenzana would be documented there.
Also, most companies that size will have an employee manual with company policies. If employee dress is spelled out in the employee manual and she violated that policy and this was documented, then she could indeed be fired for how she dressed.
However, without more facts, it is impossible to assess just what might have happened. All we have is an allegation and some photographs.
In response to another comment. See in context »David,
Like you, I agree that there need to be more facts available. Elie’s original article lacks factual development, and painted a picture suggesting only her side of the matter. In conjunction with the recent suit about a waitress’s weight at a Michigan Hooters, Elie’s original story (and the fact I’ve heard elsewhere about this case) suggest pretext. Aside from a vague assertion that Citibank fired her for performance issues, I don’t know what its defense is (and, honestly, I think that’s fine).
I’m just also unable to guess whether the stated reason for firing her was the correct one, or whether it’s an odd permutation of sexual harassment.
In response to another comment. See in context »I agree. The allegations are what make this story so “newsworthy.” However, as you say, they’re just allegations and as such we really don’t know very much about what this case is about.
I really wish that the news hounds would leave this stuff alone until there is an actual verdict. Then we’ll all have something to discuss.
In response to another comment. See in context »Being distracted isn’t a decision that people willingly make, so it’s a bit absurd to write “men revert to a child-like decision making state” when decision making has nothing to do with it. It’s more like spiking the water cooler, both in terms of consent and in the actual measured neurological impact. An employee who deliberately spiked the water cooler every day would get canned in a second.
Of course, Lorenzana (probably) isn’t deliberately being a workplace distraction; it’s a side effect of what she’s done in her off hours. I guess a better analogy is coming in to work with your clothes smelling strongly of weed – you aren’t intentionally messing with your coworkers’ heads, it’s a consequence of your hobby. I assume that’s still a fireable offense, but OTOH it’s a lot easier to fix that (i.e. by washing your damn clothes) than it is to “fix” looking too good. Since she’s basically stuck with it maybe it’s more like a distracting disability, like Tourette’s. Disabilities aren’t chosen though, and she did choose her ‘disability’, so that’s not perfect either.
Elie shuold recuse himself from this critically important national debate. He’s a boob guy. (if you know what that is).
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Kate,
Your idea of sending “all the men to daycare with a library of HUSTLER magazines” while you commence your “all-female takeover of the world” is seriously flawed and betrays a grievous lack of reasoning. The only men who would suffer in your cruel, heartless fantasy are the ones who prefer to read PLAYGIRL or (in my case, CRATE & BARREL). Do you really want to jettison the very men who will ensure the all-female takeover of the world is absolutely FABULOUS?! I urge you to allow for a bathroom window in your proposed daycare facility…and don’t make it too high: I’d hate to rip my Valentino four-pleat slacks when I climb out!
Perhaps Mr. Mystal grew up among Muslims and shares the perverse mindset towards women that seems to infest them. I’m not talking here of misogyny (that’s universal enough), but the idea that a man’s sexual excitement (to the point of his desire to behave ‘immodestly’) is a woman’s FAULT. Which explains why two of the 9/11 thugs could spend the hours before their perfidy slobbering all over themselves in a nudie bar. The Jockocracy has nothing on these pigsouls.