Husband Fired for Wife’s Conduct or Vice Versa

The recent hubbub over Virginia Thomas asking Anita Hill to apologize to her husband, Justice Clarence Thomas, got me to thinking. Almost 20 years had past since the original Hill/Thomas conflict. It’s still referred to occasionally, but it hasn’t been an issue for a long time. After the substantial media coverage of Mrs. Thomas request for an apology, Thomas’ long-time former girlfriend decided to come forward with allegations that her relationship with Thomas made her aware of Thomas’ addiction to pornography. More media coverage.

What if Thomas were the CEO of a company? He was accused of doing something wrong 20 years ago. There was a lot of publicity. But the media coverage of the accusations died down long ago, and Thomas was able to continue his rise up the corporate ladder. His wife then brings it up again in a public way. Lots of media coverage. Rehashing of old accusations. Coverage of new accusations. The board of the company is furious. What his wife did makes Thomas look bad all over again. The company keeps getting mentioned in all the new media coverage. Could the board fire Thomas for his wife’s conduct?

Probably. Not surprisingly, there’s not much law on this kind of matter. In fact, I could find only one case, Panis v. Mission Hills Bank, decided by a federal district court in Kansas (1994 WL 185984) and then affirmed on appeal by the Tenth Circuit Court of Appeals (60 F.3d 1486). Wife worked for bank. Husband worked for another bank. Wife received promotions. Husband was terminated from his position, investigated by U.S. Attorney, indicted for perpetrating bank fraud on an elderly customer, and eventually, in a plea bargain, sentenced to 18 months in prison and ordered to pay restitution.

After husband was indicted, this matter was all over the news, including a front page article in The Kansas City Star.  Board of bank where wife worked became concerned that husband’s alleged crime would rub off on wife and her bank. She wasn’t mentioned in any of the publicity, but her last name was same as husband’s. Wife interacted frequently with customers and was an officer of bank. She was put on paid administrative leave, and the board met to determine her fate.

The board considered alternative positions for wife where wife was not involved with customers. It decided that bank was too small for that to work. The board expressed empathy for wife’s situation but wasn’t willing to take the chance of wife’s continued employment and customer problems it might cause. She was fired. Wife eventually filed suit for sex discrimination under Title VII of the Civil Rights Act and a similar Kansas statute. She claimed that when bank fired her, it did so on the basis of her marital status, which amounted to sex discrimination.

The lower court dismissed wife’s case. Marital status wasn’t a protected category under Title or Kansas law. Even if it were, it wouldn’t matter in this case. Wife wasn’t fired because she was or wasn’t married. She was fired because her husband’s illegal activity could make wife subject to customer concern about the safety of funds. The Tenth Circuit agreed with the lower court and found that the employer wasn’t guilty of sex discrimination or otherwise wrongfully terminating wife.

This may seem like an unfair result, and it may have been unfair. Bank’s discharge of wife wasn’t unlawful, however. As noted above, bank’s board struggled with its decision to fire wife. The board finally decided it needed to be more concernd about possible negative implications for bank than wife’s plight.

If an employer is ever in this kind of situation, it’s important to involve legal counsel. There could be a law in the employer’s state that would make this kind of termination problematic, but I kind of doubt it under the circumstances of this case. Bank’s board was honest and direct about reason for termination. The board felt and the courts agreed that a nondiscriminatory reason for discharge was used.

Back to Justice Thomas. Could he be fired if he were a CEO instead of a Supreme Court justice because of his wife’s recent conduct and the resulting publicity? I think so. Of course, he isn’t a CEO. The only way he can be fired is to be impeached and then convicted. What Mrs. Thomas did recently hardly rises to the level of the basis for impeachment.

By the way, if you know of other cases like the one above, please let us know. I would be interested in any cases, especially ones that ended with a contrary result.

1. 

   Gina says:

   October 26, 2010 at 10:33 am

   I think the way most would see it is that the wife- being married to this guy for all those years- had to know what he was doing. She also had to know that it wasn’t right. So the thought is that since she didn’t speak up and report it- she was condoning it and had the potential for the same behavior in her own job.
2. 

   John Phillips says:

   October 26, 2010 at 11:15 am

   That’s a good point, Gina. However, there is nothing in the opinion of either court dealing with this point. There’s nothing about the board of the bank being concerned that she may have been complicit in the husband’s fraud. That doesn’t mean, of course, that it wasn’t considered. To me (and you make this point), it’s unrealistic that the board didn’t take into account the fact that the wife didn’t report the matter to the bank before it hit the media.

   Thanks very much for your comment.