IN THE SUPREME COURT OF IOWA
No. 15–0574
Filed June 23, 2017
TINA HASKENHOFF,
Appellee,
vs.
HOMELAND ENERGY SOLUTIONS, LLC,
Appellant.
Appeal from the Iowa District Court for Chickasaw County, John J.
Bauercamper, Judge.
Employer appeals judgment on jury verdict for plaintiff on claims
for sexual harassment and retaliation. DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED FOR NEW TRIAL.
Kevin J. Visser and Lisa A. Stephenson of Simmons Perrine Moyer
Bergman PLC, Cedar Rapids, for appellant.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,
Des Moines, and Brooke Timmer and Paige Fiedler of Fiedler & Timmer,
P.L.L.C., Johnston, for appellee.
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WATERMAN, Justice.
In this appeal, we must decide whether the district court correctly
denied an employer’s motion for new trial following a $1.4 million jury
verdict for the plaintiff on claims under the Iowa Civil Rights Act (ICRA)
for employment discrimination based on sexual harassment by a direct
supervisor and coemployees. The employer argues the district court
erred by submitting a direct negligence claim instead of vicarious liability
for supervisor harassment and misinstructed the jury on the elements of
proof, the causation standard for retaliation, the definition of adverse
employment action, and constructive discharge. The employer also
argues a new trial is required for attorney misconduct, errors in allowing
expert testimony on legal standards, and excessive damages, which
included $1 million for future emotional distress. Finally, the employer
argues the district court erred by awarding excessive attorney fees of
$846,364, the full amount claimed.
For the reasons explained below, we hold that workers may bring a
direct-liability negligence claim under the ICRA against the employer for
supervisor harassment, but the plaintiff must prove the employer knew
or should have known of the harassment and failed to take prompt and
appropriate remedial action to end it. We conclude that prejudicial
errors in four jury instructions require a new trial. We find no abuse of
discretion in the admission of the expert testimony. We need not decide
the remaining issues raised in the appeal.
I. Background Facts and Proceedings.
The jury could find the following facts based on the record
developed at trial. Homeland Energy Solutions, LLC (HES) operated an
ethanol plant with forty-five employees in Lawler, Iowa. On February 16,
2009, HES hired Tina Haskenhoff as a lab manager at the plant. That
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day, she was provided with a copy of the HES employee handbook, which
included its policy on sexual harassment. The policy stated sexual
harassment was prohibited and provided that “[a]n employee who
believes he or she has been subject to harassment prohibited by this
policy should report the incident immediately to their supervisor or a
member of the Management Team.” The policy stated any complaint of
sexual harassment would be investigated and any employee may bring a
complaint “without fear of reprisal.”
Haskenhoff was repeatedly harassed by her immediate supervisor,
Kevin Howes, HES’s operations manager. Howes repeatedly made
inappropriate comments in Haskenhoff’s presence. For example, Howes
talked about Haskenhoff’s breasts on at least three occasions, referring
to them as “them puppies” or “the twins.” Howes discussed Haskenhoff’s
body and attire with other employees and speculated out loud about
what it would be like to have sex with her. He insinuated to other male
employees that they could get Tina into bed. He commented on the
attractiveness or unattractiveness of female job applicants and
employees. He spoke at work about strippers. On multiple occasions, he
used objects or engaged in body motions in front of Haskenhoff to
simulate sexual behavior.
Haskenhoff’s coemployees also engaged in inappropriate conduct
in her presence. One displayed a screen saver on his computer of two
young girls touching tongues. Another photographed Haskenhoff’s
cleavage at a company outing and showed that photo to others.
Haskenhoff received an unwanted pornographic video from yet another
employee. The atmosphere Haskenhoff experienced at the HES plant
was unseemly and unprofessional.
4
In November 2010, Haskenhoff told Howes she needed to leave
work early for a mammogram. She remembered Howes responding,
“[W]ell, you know, if you sat out in the parking lot you could probably
make some money.” She interpreted this to mean, “[I]f I sat in my car
and put a sign up guys would pay to grope me.” Howes’s recollection
differed; he recalled he told Haskenhoff she “could go around the corner
and use the copying machine and save herself some money.” He stated
that he meant Haskenhoff could “[u]se the copying machine, make a
photocopy [of her breast] versus going to the doctor.” Howes
acknowledged that his comment was inappropriate. Haskenhoff reported
the incident to the plant manager, Chad Kuhlers. Kuhlers forwarded
Haskenhoff’s report to the head of human resources, Sarah Frein. The
next day, Howes came to Haskenhoff’s office and spoke with her. He
apologized for his comment and expressed concern that Kuhlers wanted
him fired because of it. Haskenhoff said Howes made her feel “very
intimidated.” Shortly after her interaction with Howes, Walter Wendland,
the chief executive officer (CEO) of HES, asked Haskenhoff to come to his
office. She recalled at this meeting,
[Wendland] said—he was kind of, like, well, what’s going on
here, and he said you know Chad [Kuhlers] really wants me
to fire Kevin over this, and I said I never asked Chad to fire
him. And then Walt went on to say, well, come [on]. I
thought we were like a family. You don’t want to do this to
your family.
On December 7, Frein called Haskenhoff into her office to discuss her
complaint. Jeff Grober, the chief financial officer (CFO), was also present
in Frein’s office. At that meeting, Frein’s notes indicate that she had
planned “further discussion” about the complaint, but Haskenhoff stated
she did not want the investigation to go further because she did not want
Howes to be fired. Haskenhoff later testified about that meeting:
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Q. And what happened in that meeting? A. They
asked me about it. She said that Chad had notified her of
something Kevin had said to me that I reported as making
me uncomfortable, and I said he did. And I think I broke
down at that point, and I said I don’t want him to get fired
over this, you know. I said to her I’m sure now that he
knows, now that it has been pointed out to him, surely he
will stop. Anybody would stop.
Q. Is that what you believed would happen? A. Yes.
Q. Did you tell ’em you wanted it dropped? A. I said
if it were going to come to the point of Kevin getting fired, I
didn’t want to go—I didn’t want to officially go further at all
because I did not want him fired over that.
Q. Did you want them to do something about it?
A. Yes.
At Haskenhoff’s request, Frein took no further disciplinary action against
Howes at that time.
Wendlend later removed Kuhlers as plant manager and promoted
Howes to that position. For the next nine months, Haskenhoff made no
complaints to management about Howes. Her performance review in
January 2011 noted that she met or exceeded requirements in all areas.
However, the review also noted that Haskenhoff had areas to work on
and referenced an email dispute in which Haskenhoff had become
argumentative with a subordinate over lab procedures. In May, she
began seeking a position at John Deere.
On August 8, Haskenhoff walked by Howes’s office and overheard
him talking on his cell phone. Haskenhoff recently had told Howes she
intended to marry her long-time boyfriend. Haskenhoff overheard Howes
say, “Yep, she’s getting married. And for a good reason (pause) for
money.” This comment upset Haskenhoff. She walked into the control
room and told another employee, “Okay. Kevin is a [f&#%!@”g] asshole. I
am leaving. I will be back tomorrow.” Haskenhoff left work at 11:15 that
morning.
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Haskenhoff sent an email to Howes expressing her disgust at his
comment. Howes replied that he had not meant to offend her and asked
her to meet the next day in his office to discuss the issue. Later that
night, Howes sent an email to the CEO, Wendland; the CFO, then David
Finke; and the commodities manager, Steve Wubbena. In the email,
Howes said he wanted to discipline Haskenhoff for calling him expletives
in front of subordinate employees, for leaving the lab a mess, and for
leaving work without permission for the day. He pointed out Haskenhoff
had been the only lab person scheduled, lab samples had not been
completed, they were in the middle of a lab trial, and she “blew off” a
conference call by leaving. Howes also expressed frustration at
Haskenhoff’s attitude, her frequent smoke breaks, and her failure to
arrange coverage for her shifts on her days off. Finke responded, “We
claim that she does a lot of things poorly, do we have any of this
documented and on file?”
The next day, Haskenhoff met with Howes and Wubbena in
Howes’s office. They discussed the conduct from the day before, and
Howes apologized. Howes also used the term “insubordination” to refer
to Haskenhoff’s reaction to his comment. Haskenhoff replied using
terms such as “sexual harassment” and “hostile work environment” to
refer to Howes’s conduct. She then told Howes about other conduct in
the office, including about a coemployee having an inappropriate screen
saver and inappropriate nicknames being used in the office. Howes
responded after their meeting by directing the employees to cease using
the nicknames and to remove the screen saver.
The following week, Frein emailed Haskenhoff asking for “facts,
examples, and concerns [of inappropriate conduct] in writing so we can
get them addressed appropriately.” Haskenhoff responded by email to
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Frein the same day, listing multiple incidents of inappropriate conduct
and stating the list was long “but not all encompassing.” Haskenhoff
said the only reason she brought the issues up was that Howes had
threatened to write her up for insubordination. Frein immediately
forwarded this email to Finke, who responded, “I don’t think we can
discount anything that is mentioned below. Some of it may be
embellished a bit, but we still cannot just take it with a grain of salt.”
Finke stated that the first step was to look at the employee handbook,
the second step was a plant-wide training for sexual harassment, and
the third step was devising a plan to address the issue with Howes.
The next day, Howes prepared a written warning for Haskenhoff’s
conduct leaving work early. He also provided Frein with a statement of
what occurred during the August 9 meeting. Wubbena forwarded a
statement to Frein as well. A day later, Finke emailed Frein recounting
that he told Howes he needed to be “OVERLY” professional in “ALL” of his
work-related endeavors moving forward. Finke’s email also told Frein,
“In the meantime, I want you to be thinking about forming a game plan
for investigation [of] Tina’s claims.” Frein enlisted the help of outside
counsel, James Gilliam, that day. Frein asked Gilliam questions about
HES’s next steps, including whether Haskenhoff could be disciplined for
leaving work early without permission and for “plotting” against Howes.
HES investigated Haskenhoff’s complaint by interviewing
employees, including Haskenhoff and Howes. During Haskenhoff’s
interview on August 23, Wendlend and Frein were present and reviewed
Haskenhoff’s list of incidents. As to several incidents, Wendlend
commented to Haskenhoff that the conduct did not violate the company’s
policy and crossed them off the list in her presence.
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While the investigation was ongoing, Howes began drafting staff-
counseling forms, or write-ups, for what he perceived as Haskenhoff’s
insubordination leaving the plant early on August 8. Howes indicated he
wanted to terminate Haskenhoff and contacted other employees to gather
more evidence of her insubordination. Howes also repeatedly reminded
other employees to keep work professional and informed them of
upcoming mandatory harassment training. Gilliam and Frein
recommended that Haskenhoff not be disciplined for her conduct
because “the timing was inappropriate.” Finke told Howes by email that
he did not feel comfortable terminating Haskenhoff, stating,
I honestly feel that Walt and I are getting to the bottom of a
very serious situation and that we are doing it in the proper
manner. For me, the end goal is to make an informed proper
conclusion per Homeland’s policies and under the guidance
of qualified legal counsel.
Nevertheless, Howes drafted two final staff-counseling forms regarding
Haskenhoff, one entitled “#3” and the other “#4.” He emailed these forms
to Wendland and Finke. Form #3 discussed the investigation and listed
the “numerous harassment/inappropriate behavior claims” as one of the
reasons for disciplining Haskenhoff. Form #4 did not mention the
investigation and focused on Haskenhoff’s conduct on August 8 leaving
work without permission. Howes said he liked #4 because “it does not
come across as being retaliatory in nature.” Both forms recommended
giving Haskenhoff a written warning and ninety-day performance
improvement plan.
On August 29, Wendland and Finke presented Howes with a
written staff-counseling form, which determined that Howes had “made
unprofessional and unacceptable comments in the workplace.” It stated
that HES expected Howes’s conduct to improve and that if it did not, he
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would be subject to disciplinary action, including possible discharge.
Two days later, Wendlend and Finke met with Haskenhoff to discuss the
results of the investigation. They assured her that she would not be
retaliated against and directed her to report any perceived retaliation to
Finke or Wendland. Then, while Wendlend and Finke were still present,
Howes entered the room and presented Haskenhoff with a draft
performance improvement plan addressing her conduct on August 8.
Haskenhoff disagreed with many allegations in the plan. The men
assured her the plan would be redrafted to reflect her concerns. The
next day, Haskenhoff reported to HES for work. At around 11 a.m., she
entered Finke’s office and resigned, calling the previous day’s events
“bullshit.” 1 Six weeks later, Haskenhoff began working at John Deere.
Haskenhoff filed an administrative complaint with the ICRA eight
months later. After receiving an administrative release, Haskenhoff filed
a civil action in Chickasaw County District Court, alleging sexual
harassment and retaliation under the ICRA. The jury trial commenced
on October 1, 2014, and spanned three weeks.
HES filed multiple motions in limine, several of which were granted
by the district court. An order in limine prohibited Haskenhoff’s counsel
from making any reference to “rape,” “sexual assault,” or similarly
inflammatory terms and expressly prohibited making any analogy
between rape and the harassment complaint. Despite that ruling,
Haskenhoff’s counsel, during her examination of HES’s CEO at the jury
trial, asked this question:
1Haskenhoff posted on social media two days later to a friend, “[J]ust wanted to
let you know that [I] quit Homeland yesterday without giving any notice, had enough of
Kevin’s bullshit vulgarity and juvenile behavior and favoritism . . . followed your lead
LOL[.]”
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Q. I mean, don’t you think it would be analogous, for
instance, if someone had accused someone of rape and then
the person they accused of rape was able to walk in and say
that’s defamation for saying I’m a rapist?
MR. VISSER: Objection; this is argument, it’s
improper, and violates the terms of pretrial orders.
THE COURT: Sustained as to argumentative.
Another order in limine forbade Haskenhoff’s counsel from offering
testimony about Howes’s character or referring to him as “juvenile,
immature, chauvinistic, vindictive, holding a grudge, or capable of
retaliation,” as such evidence was not probative of truthfulness. Counsel
for Haskenhoff nevertheless asked the following questions in front of the
jury:
Q. [To Matthew Dutka, employee of HES] And based
on knowing and observing [Howes], is he the kind of person
that would be likely to use people to get what he wants?
....
Q. [To Wade Heideman, employee of HES] Based on
your observations about Kevin, would he be the kind of guy
who would hold a grudge?
....
Q. [To Sherri Hansen, employee of HES] From your
time working with Mr. Howes, do you think he would have
done everything in his power to get rid of Tina?
Counsel for HES objected over 574 times during the trial, according to
Haskenhoff. The court sustained 353 defense objections, or sixty-one
percent. By contrast, counsel for Haskenhoff objected fifty-nine times,
thirty of which were sustained (fifty-one percent).
The district court denied HES’s motion in limine to exclude the
testimony of expert witness Dr. Louise Fitzgerald, professor emeritus of
the University of Illinois at Urbana-Champaign, who taught Psychology
and Gender and Women’s Studies. HES argued her testimony included
inadmissible legal conclusions. Dr. Fitzgerald testified over defense
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objections about the standard of care in the human resources field for
policies and procedures regarding sexual harassment and HES’s alleged
failure to meet that standard. She also testified about victims’ typical
reactions to sexual harassment and stated Haskenhoff displayed those
reactions. HES argues the jury instructions were shaped to reflect
Dr. Fitzgerald’s testimony. At the close of evidence, the parties made a
record on jury instructions.
A. Direct Negligence Versus Vicarious Liability for Supervisor
Harassment. HES requested an instruction on sexual harassment that
applied different standards of liability depending on the harasser’s
position within the company. For harassment by a coworker, HES’s
proposed instruction stated it would be liable if it “knew or should have
known of the abusive or hostile conduct and failed to take prompt and
corrective action to end the harassment.” If the harasser was a
supervisor, HES’s proposed instruction did not require the plaintiff to
prove HES knew or should have known of the harassment, but allowed
HES to prove, as an affirmative defense, that it “exercised reasonable
care to prevent and correct promptly any sexually harassing behavior”
and that Haskenhoff “unreasonably failed to take advantage of any
preventative or corrective opportunities provided by Homeland Energy
Solutions or to avoid harm otherwise.” This is commonly known as the
Faragher–Ellerth defense to employer liability. See Faragher v. City of
Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998); Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).
Haskenhoff argued for a single marshaling instruction on a direct
negligence theory that encompassed harassment by a supervisor or
coworker. The district court agreed and gave an instruction nearly
12
identical to Haskenhoff’s proposed instruction. The court’s marshaling
instruction stated,
INSTRUCTION NO. 14
COUNT I – SEXUAL HARASSMENT CLAIM
In order to recover damages on her claim of sexual
harassment, the plaintiff, Tina Haskenhoff, must prove all of
the following elements of her claim:
1. The plaintiff, Tina Haskenhoff, was subjected to
offensive conduct by employees, agents, or officers of
Homeland Energy Solutions, L.L.C. while employed at its
ethanol plant.
2. Such conduct was unwelcome.
3. Tina Haskenhoff’s sex played a part in such
conduct.
4. This conduct was sufficiently severe or pervasive
that a reasonable person in Tina Haskenhoff’s position
would find her work environment was hostile or offensive.
5. At the time this conduct occurred and as a result of
this conduct, Tina Haskenhoff believed that the work
environment was hostile or abusive.
6. Homeland Energy Solutions, L.L.C., knew or should
have known of the occurrence of one or more sexually
harassing incidents.
7. Homeland Energy Solutions, L.L.C. acted
negligently in creating or continuing a hostile work
environment.
If you find that the plaintiff, Tina Haskenhoff, has
failed to prove any of these propositions, the plaintiff is not
entitled to damages on her claim of sexual harassment. If
the plaintiff has proved all of these propositions, the plaintiff
is entitled to damages in some amount.
HES objected to this marshaling instruction, citing Farmland
Foods, Inc. v. Dubuque Human Rights Commission, on liability for sexual
harassment and the applicability of the Faragher–Ellerth defense. 672
N.W.2d 733, 744 (Iowa 2003). HES also objected that the negligence
standard had been incorrectly defined, stating, “Again, to the extent that
there is co-worker harassment, the standard—the element is knew or
13
should have known and failed to take appropriate and prompt remedial
action”—an element of proof was missing from the court’s instruction.
B. Retaliation Instruction—Causation. HES objected to the
court’s marshaling instruction on Count II, retaliation. HES requested
an instruction that required Haskenhoff to prove the protected activity
was a “significant factor” motivating the adverse employment action. In
contrast, Haskenhoff’s proposed instruction, which the district court in
large part adopted, provided that the protected activity need only have
“played a part” in defendant’s decision to take the adverse action. The
court’s marshaling instruction stated,
INSTRUCTION NO. 26
COUNT II – RETALIATION CLAIM
In order to recover damages on her claim of retaliation,
the plaintiff, Tina Haskenhoff, must prove all of the following
elements of her claim:
1. The plaintiff, Tina Haskenhoff, engaged in protected
activity by complaining about sexual harassment.
2. The defendant, Homeland Energy Solutions, L.L.C.,
took adverse action against Tina Haskenhoff.
3. The protected activity played a part in Homeland
Energy Solutions, L.L.C’s decision to take the adverse action.
Instruction No. 28 elaborated,
INSTRUCTION NO. 28
FACTOR – DEFINED
The plaintiff’s harassment complaints played a part in
her treatment if those complaints were a factor in the
defendant’s employment actions toward her. However, her
harassment complaints need not have been the only reason
for the defendant’s actions.
HES objected to these instructions, stating that the elements of a
retaliation claim, as set forth in our decisions, “all provide that . . .
causal connection is satisfied by a showing that the protected activity
was a significant factor motivating the adverse employment action.” HES
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cited City of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532,
535 (Iowa 1995), and Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992).
C. Adverse Action. HES also objected to the court’s instruction
defining “adverse employment action.” HES requested an instruction
that defined an adverse employment action as
an action that detrimentally affects the terms, conditions, or
privileges of employment. Changes in duties or working
conditions that cause no materially significant disadvantage
to the employee are not adverse employment actions. It
includes, but is not limited to, employment actions such as
termination of an employee, failure to promote, or any action
that would discourage a reasonable employee from making a
complaint of harassment. Giving an employee a performance
improvement plan or negative employment review is not
“adverse employment action” unless they are later used as a
basis to alter the employee’s terms or conditions of
employment in a detrimental way. Both the action and its
context must be examined.
The district court declined to give HES’s proposed instruction and
instead gave Haskenhoff’s instruction, which listed more activities as
examples of adverse action:
INSTRUCTION NO. 30
ADVERSE ACTION – DEFINED
“Adverse action” means any action which has material
consequences to an employee. It is anything that might
dissuade a reasonable person from making or supporting an
allegation of discrimination or harassment.
It includes but is not limited to, such employment
actions as constructive discharge, reprimands or threats of
reprimands, a change in opportunities, false accusations or
complaints, being investigated, being placed on a
performance improvement plan, being placed on probation,
or other actions which adversely affect or undermine the
position of the employee. It also includes an employer
seeking out negative feedback on an employee, or condoning
or encouraging other employees to complain about her. You
should judge whether an action is sufficiently adverse from
the point of view of a reasonable person in the plaintiff’s
position.
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HES objected, stating the second paragraph was “misleading and an
incomplete statement of the law” because it included reprimands and
other matters never found to constitute adverse action. The court
overruled the objection.
D. Constructive Discharge. HES objected to the court’s
instruction on constructive discharge, which was adopted verbatim from
Haskenhoff’s proposed instruction and stated,
INSTRUCTION NO. 33
CONSTRUCTIVE DISCHARGE – EXPLAINED
An employee is constructively discharged if the
employer deliberately makes her working conditions
intolerable so that the employee reasonably feels forced to
quit. The work environment need not literally be unbearable
to be intolerable under the law. The employer need not
really want the employee to quit. It is sufficient that the
employee’s resignation was a reasonably foreseeable
consequence of the working conditions created or permitted
by the employer.
The employee must show that she was subjected to
sexual harassment or retaliation [that] made her believe
there was no chance for fair treatment at Homeland.
An employee does not need to stay as an employee if
she reasonably believes there is no possibility the employer
will treat her fairly. It is enough if the employee has no
recourse within the employer’s organization or reasonably
believes there is no chance for fair treatment. The
intolerable working conditions may be created by either the
action or inaction of the employer.
HES objected that the instruction was an “incomplete and misleading
statement of the law” because it injected a subjective standard. HES also
specifically objected to
the court’s failure to include language as suggested by the
defendant in its constructive discharge claim, including but
not limited to a statement that “the employee has an
obligation to be reasonable, not assume the worst and not
jump to conclusions; conditions will not be considered
intolerable unless the employer has been given reasonable
chance to resolve the problem.”
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E. The Court’s Ruling. Following argument on each of the jury
instructions, the court provided, “Court will overrule all of the objections
and exceptions to the instructions. Court believes they’re appropriate
based on the factual record and the law as the court views it.” The case
proceeded to verdict.
On October 23, the jury returned a verdict for Haskenhoff on both
counts and awarded damages in the amount of $1,400,000—$100,000 in
backpay, $300,000 in past emotional distress, and $1,000,000 in future
emotional distress.
HES moved for a new trial on grounds of (1) the instructional
errors set forth above, (2) erroneous evidentiary rulings allowing
Dr. Fitzgerald to testify as to legal conclusions, (3) misconduct by
Haskenhoff’s counsel, and (4) excessive damages. Haskenhoff filed a
motion requesting attorney fees and expenses of $846,364 and equitable
relief of frontpay of $240,000.
The district court denied HES’s motion for new trial. Specifically,
the court found, “Jury instructions were thoroughly briefed by counsel
and discussed at length with the court both on and off the record.” The
court also noted that nearly all of HES’s asserted evidentiary errors were
based on issues already ruled upon by the court during HES’s motion for
summary judgment and motions in limine. The court found the
attorneys’ conduct to be merely a product of zealous representation and
damages were not excessive. The court awarded frontpay and attorney
fees in the full amount requested and entered judgment for Haskenhoff
for a total of $2,486,364.
HES filed a timely notice of appeal based on the issues raised in its
motion for new trial and excessive attorney fees. We retained the appeal.
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II. Standard of Review.
“We review alleged errors in jury instructions for correction of
errors at law.” DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa
2009) (quoting Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa
2006)). Similarly, we review the district court’s refusal to give a
requested jury instruction for correction of errors at law. Alcala v.
Marriott Int’l, Inc., 880 N.W.2d 699, 701 (Iowa 2016). “It is error for a
court to refuse to give a requested instruction where it ‘correctly states
the law, has application to the case, and is not stated elsewhere in the
instructions.’ ” DeBoom, 772 N.W.2d at 5 (quoting Vaughan v. Must, Inc.,
542 N.W.2d 533, 539 (Iowa 1996)). Instructional error “does not merit
reversal unless it results in prejudice.” Id. (quoting Wells v. Enter.
Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004)). Prejudicial error
results when instructions materially misstate the law or have misled the
jury. Id. Jury instructions must be considered “in their entirety” when
assessing prejudice. Id. (quoting Anderson v. Webster City Cmty. Sch.
Dist., 620 N.W.2d 263, 265 (Iowa 2000)). “We assume prejudice unless
the record affirmatively establishes that there was no prejudice.” Rivera
v. Woodward Res. Ctr., 865 N.W.2d 887, 903 (Iowa 2015).
“We review a trial court’s decision to admit or exclude expert
testimony for an abuse of discretion.” Ranes v. Adams Labs., Inc., 778
N.W.2d 677, 685 (Iowa 2010). We reverse district court rulings on the
admissibility of expert opinion testimony “only when the record shows
‘the court exercised [its] discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable.’ ” Id. (alteration in
original) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).
Grounds are untenable when they are unsupported by substantial
evidence or based on an erroneous application of the law. Id.
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III. Analysis.
The first question we must decide is whether Haskenhoff could
recover from HES on a direct negligence theory for harassment by her
supervisor, Howes. HES contends a supervisor-harassment action
requires a vicarious liability theory and an affirmative-defense
instruction, while only a coworker-harassment action can be brought
under a direct-liability negligence (direct negligence) theory. Haskenhoff
contends a plaintiff may sue the employer under a direct negligence
theory for both supervisor and coworker harassment. We hold employers
can be held liable for supervisor harassment under the ICRA on a direct
negligence theory. However, the plaintiff must prove the employer failed
to take prompt and appropriate remedial action to end the harassment, a
fighting factual issue at trial. Because the district court’s marshaling
instruction omitted that element, a new trial is required.
We next address the three remaining instructional errors in turn.
We conclude the jury was misinstructed on the causation element for
retaliation, on the definition of adverse employment action, and on
constructive discharge. These prejudicial instructional errors also
require a new trial. Finally, because the issue is likely to recur on
remand, we address the admissibility of Dr. Fitzgerald’s testimony and
conclude the district court did not abuse its discretion by allowing her
testimony.
A. Does the ICRA Allow a Plaintiff to Bring a Direct Negligence
Claim Against the Employer for Supervisor Harassment? The parties
agree that a plaintiff may sue an employer under a vicarious liability
theory for supervisor harassment and may bring a direct negligence
claim against the employer for coworker harassment. The fighting issue
is whether the direct negligence theory also may be used for supervisor
19
harassment. Because supervisors are employees and the caselaw has
not limited recovery to vicarious liability, we conclude a plaintiff can elect
to sue an employer for supervisor harassment under either theory.
We begin with the text of the statute. Iowa Code section 216.6(1)
(2011) forbids the creation of a hostile working environment, stating,
It shall be an unfair or discriminatory practice for any:
a. Person to refuse to hire, accept, register, classify, or
refer for employment, to discharge any employee, or to
otherwise discriminate in employment against any applicant
for employment or any employee because of the . . . sex . . .
of such applicant or employee, unless based upon the nature
of the occupation.
To establish a hostile-work-environment claim under the ICRA,
the plaintiff must show: (1) he or she belongs to a protected
group; (2) he or she was subjected to unwelcome
harassment; (3) the harassment was based on a protected
characteristic; and (4) the harassment affected a term,
condition, or privilege of employment.
Boyle, 710 N.W.2d at 746 (quoting Farmland Foods, 672 N.W.2d at 744).
Harassment affects a term, condition, or privilege of employment “[w]hen
the workplace is permeated with ‘discriminatory intimidation, ridicule,
and insult’ . . . ‘sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.’ ”
Farmland Foods, 672 N.W.2d at 743 (alterations in original) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)).
When harassment is perpetrated by a nonsupervisory employee, an
employer will be liable if the plaintiff proves the employer “knew or
should have known of the harassment and failed to take proper remedial
action.” Id. at 744 (quoting Stuart v. Gen. Motors Corp., 217 F.3d 621,
631 (8th Cir. 2000)). However, when harassment is perpetrated by a
supervisory employee, an employer may be subject to vicarious liability.
20
Id. The employer defending a vicarious liability claim may assert the
Faragher–Ellerth affirmative defense
by showing it: (1) “exercised reasonable care to prevent and
correct promptly any . . . harassing behavior,” and (2) “that
the plaintiff employee unreasonably failed to take advantage
of preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.”
Id. at 744 n.2 (quoting Faragher, 524 U.S. at 807, 118 S. Ct. at 2293).
HES argues the jury should have been instructed on vicarious
liability, including the Faragher–Ellerth defense, because vicarious
liability replaced the negligence standard for supervisor harassment.
Haskenhoff argues the vicarious liability standard did not replace, but
rather supplemented, the direct negligence standard. Because the ICRA
hostile-work-environment claim is modeled after its Title VII counterpart,
we consider federal law instructive. 2 Boyle, 710 N.W.2d at 749–50
(recognizing that Title VII hostile-work-environment claim has the same
elements as ICRA claim); see also DeBoom, 772 N.W.2d at 7 (“When
interpreting discrimination claims under Iowa Code chapter 216, we turn
2It has been suggested that we should not rely on federal law because Iowa civil
rights statutes were enacted before Title VII. The Iowa legislature, however, did not
expressly include a hostile-work-environment provision in the ICRA. See Iowa Code
§ 216.6(1). Rather, the claim has been developed through our caselaw, beginning in
1990, based expressly on Title VII precedent. We first recognized a hostile-work-
environment claim for sex discrimination in Lynch v. City of Des Moines, 454 N.W.2d
827, 833 (Iowa 1990), relying on Chauffeurs, Teamsters & Helpers, Local Union No. 238
v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986). Chauffeurs, in turn,
delineated the elements of a racial hostile-work-environment harassment claim, relying
on Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982), a Federal Title VII
case, for the appropriate framework under the ICRA. Chauffeurs, 394 N.W.2d at 378,
381 (holding union liable when members harassed African-American man with racial
epithets and threatening actions). In Meritor Savings Bank, FSB v. Vinson, the Supreme
Court also relied on Henson to adopt the framework for a Title VII hostile-work-
environment claim for sex discrimination. 477 U.S. 57, 66–67, S. Ct. 2399, 2405
(1986). Henson states that to hold an employer responsible for “creating or condoning
[a hostile] environment at the workplace,” the plaintiff must prove, among other things,
“the employer knew or should have known of the harassment in question and failed to
take prompt remedial action.” 682 F.2d at 901, 905.
21
to federal law, including Title VII of the United States Civil Rights Act
. . . .”). Accordingly, we will review the development of these liability
theories under federal caselaw and the interplay of those decisions with
our court’s precedents.
The United States Supreme Court first recognized hostile-work-
environment sexual harassment as actionable discrimination in Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 2405
(1986), notably a supervisor-harassment case. Although the Court
declined to adopt a definitive rule for sexual-harassment liability, it
expressly rejected the notion that “employers are always automatically
liable for sexual harassment by their supervisors.” Id. at 72, 106 S. Ct.
at 2408. Instead, the Court looked to “agency principles for guidance” in
setting liability standards. Id. at 72, 106 S. Ct. at 2408. A four-justice
concurrence noted the predominant standard at the time for coworker-
harassment liability: that an employer will be liable when it “knows or
should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action.” Id. at 74, 106 S. Ct. at
2409 (Marshall, J., concurring) (quoting 29 C.F.R. § 1604.11(c), (d)
(1985)).
Four years later, in Lynch v. City of Des Moines, we held that
“maintenance of a sexually hostile work environment through sexual
harassment is a form of illegal sex discrimination under [the ICRA].” 454
N.W.2d 827, 833 (Iowa 1990). We determined the plaintiff was required
to prove “the employer knew or should have known of the harassment
and failed to take prompt and appropriate remedial action.” Id.
Although Lynch was a coworker-harassment case, subsequent decisions
recognized this standard applied to both supervisor and coworker
harassment under the ICRA. See Greenland v. Fairtron Corp., 500
22
N.W.2d 36, 38 (Iowa 1993) (citing same standard for supervisor
harassment); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa
1990) (en banc) (applying same standard to supervisor harassment);
Edmunds v. Mercy Hosp., 503 N.W.2d 877, 879 (Iowa Ct. App. 1993)
(noting same standard for supervisor harassment).
In 1998, the United States Supreme Court recognized employer
vicarious liability for supervisor harassment. Ellerth, 524 U.S. at 759,
118 S. Ct. at 2267. The Court relied on the Restatement (Second) of
Agency, which states,
(2) A master is not subject to liability for the torts of his
servants acting outside the scope of their employment,
unless:
....
(b) the master was negligent or reckless, or
....
(d) the servant purported to act or speak on behalf of
the principal and there was reliance upon apparent
authority, or he was aided in accomplishing the tort by the
existence of the agency relation.
Id. at 758, 118 S. Ct. at 2267 (quoting Restatement (Second) of Agency
§ 219(2) (1957)). The Court reasoned harassment committed by a
supervisor was “aided by the agency relation” within the scope of section
(d) when a supervisor takes a tangible employment action against the
employee because “the injury could not have been inflicted absent the
agency relation. . . . A tangible employment decision requires an official
act of the enterprise, a company act.” Id. at 761–62, 763, 118 S. Ct. at
2269; see also Faragher, 524 U.S. at 802, 118 S. Ct. at 2290 (“[I]n
implementing Title VII it makes sense to hold an employer vicariously
liable for some tortious conduct of a supervisor made possible by abuse
of his supervisory authority, and that the aided-by-agency-relation
principle embodied in § 219(2)(d) of the Restatement provides an
23
appropriate starting point for determining liability . . . .”). In addition,
even when no tangible employment action results, the Court observed
that “a supervisor’s power and authority invests his or her harassing
conduct with a particular threatening character, and in this sense, a
supervisor is always aided by the agency relation.” Ellerth, 524 U.S. at
763, 118 S. Ct. at 2269. Thus, the Court held that the employer would
be vicariously liable unless it could show
(a) that [it] exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.
Id. at 765, 118 S. Ct. at 2270. The Court echoed this vicarious liability
standard for supervisor liability in Faragher, another supervisor-
harassment case decided on the same day. 524 U.S. at 807, 118 S. Ct.
at 2292–93.
Iowa adopted the vicarious liability standard of Ellerth and
Faragher in Farmland Foods, a hostile-work-environment claim under
the ICRA. 672 N.W.2d at 744. Since then, employees bringing
harassment claims under the ICRA have used the vicarious liability
standard to hold employers liable for supervisor harassment. See, e.g.,
Reed v. Cedar County, 474 F. Supp. 2d 1045, 1061–62 (N.D. Iowa 2007);
Krambeck v. Children & Families of Iowa, Inc., 451 F. Supp. 2d 1037,
1041 (S.D. Iowa 2006); Lopez v. Aramark Unif. & Career Apparel, Inc.,
426 F. Supp. 2d 914, 949 (N.D. Iowa 2006); Fisher v. Elec. Data Sys., 278
F. Supp. 2d 980, 986–87 (S.D. Iowa 2003).
Merely because vicarious liability is available in cases of supervisor
harassment does not mean the negligence standard in place before
Ellerth, Faragher, and Farmland Foods has been abrogated. To the
24
contrary, Ellerth expressly states that the direct negligence standard, set
forth in subsection (b) of the Restatement of Agency, remains an
alternative ground for establishing employer liability for supervisor
harassment:
Subsections (b) and (d) are possible grounds for
imposing employer liability on account of a supervisor’s acts
and must be considered. Under subsection (b), an employer
is liable when the tort is attributable to the employer’s own
negligence. Thus, although a supervisor’s sexual
harassment is outside the scope of employment because the
conduct was for personal motives, an employer can be liable,
nonetheless, where its own negligence is a cause of the
harassment. An employer is negligent with respect to sexual
harassment if it knew or should have known about the
conduct and failed to stop it. Negligence sets a minimum
standard for employer liability under Title VII; but Ellerth
seeks to invoke the more stringent standard of vicarious
liability.
Ellerth, 524 U.S. at 758–59, 118 S. Ct. at 2267 (emphasis added)
(citation omitted). We conclude the vicarious liability theory was
intended to supplement, not replace, the direct negligence theory for
supervisor harassment.
The Supreme Court’s decision in Vance v. Ball State University, 570
U.S. ___, 133 S. Ct. 2434 (2013), is not to the contrary. At issue in
Vance was whether a certain employee was merely a coworker, for which
the employer could only be held liable under the negligence standard, or
a supervisor, for which the employer could also face vicarious liability.
See id. at ___, 133 S. Ct. at 2443. The Court stated that “Ellerth and
Faragher identified two situations in which the aided-in-the-
accomplishment rule warrants employer liability even in the absence of
negligence.” Id. at ___, 133 S. Ct. at 2441 (emphasis added). That
sentence simply confirms a nonnegligent employer can be vicariously
liable for its supervisor’s harassment. See id. at ___, 133 S. Ct. at 2439
25
(“[A]n employer’s liability for such harassment may depend on the status
of the harasser.” (Emphasis added.)). We read nothing in Vance that
precludes allowing a direct negligence theory. While Vance notes that
“[i]n cases in which the harasser is a ‘supervisor’ . . . different rules
apply,” that simply reiterates that vicarious liability is imposed only for
supervisor harassment, not for harassment by a nonsupervisory
coemployee. Id. at ___, 133 S. Ct. at 2439.
Several federal circuit courts of appeals after Ellerth and Faragher
have held that suits for supervisor harassment can be brought under
either vicarious liability or direct negligence theories. In Sharp v. City of
Houston, the United States Court of Appeals for the Fifth Circuit
recognized that a claim for supervisor harassment could proceed on a
negligence “knew or should have known” theory because the negligence
standard for supervisor harassment was “not disturbed by Faragher or
[Ellerth].” 164 F.3d 923, 929 (5th Cir. 1999). The court noted that
although the negligence standard was typically applied to coworker
harassment, “[t]he concept of negligence thus imposes a ‘minimum
standard’ for employer liability—direct liability—under title VII, a
standard that is supplemented by the agency-based standards for
vicarious liability as articulated in Faragher and [Ellerth].” Id. (citation
omitted); see also Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d
642, 650–53 (10th Cir. 2013) (analyzing employer liability for supervisor
harassment under both negligence and vicarious liability standards);
Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421 (11th Cir.
1999) (“[A]n employer can be held directly liable for a supervisor’s
harassment when the employer either intended, or negligently permitted,
the tortious conduct to occur.”); Wilson v. Tulsa Junior Coll., 164 F.3d
534, 540 n.4 (10th Cir. 1998) (recognizing the “continuing validity of
26
negligence as a separate basis for employer liability” in action in which
employee alleged supervisor harassment). HES cites no decision that
holds a plaintiff cannot bring a direct negligence claim against an
employer for supervisor harassment, and we have found none.
That employers are directly liable for their own negligence is not a
new proposition. The Restatement (Second) of Employment Law, section
4.02, at 134 (2015), entitled “Employer’s Direct Liability to Employees for
Its Own Conduct,” provides that “an employer is subject to liability in
tort to an employee for harm caused in the course of employment by the
tortious conduct of the employer or the controlling owner.” (Emphasis
added.) Similarly, the Restatement (Third) of Agency, section 7.03, at
151 (2006), provides that a principal is liable for its own negligence in
“selecting, supervising, or otherwise controlling the agent” in addition to
any vicarious liability that may be imposed via the agent’s actions.
We hold that plaintiffs under the ICRA may proceed against the
employer on either a direct negligence or vicarious liability theory for
supervisor harassment in a hostile-work-environment case. The
Faragher–Ellerth affirmative defense, with the burden of proof on the
employer, applies only to claims of vicarious liability. Ellerth, 524 U.S. at
764, 118 S. Ct. at 2270 (adopting affirmative defense “in order to
accommodate the agency principle of vicarious liability for harm caused
by misuse of supervisory authority” (emphasis added)); accord Faragher,
524 U.S. at 807, 118 S. Ct. at 2292; see also Johnson v. Shinseki, 811
F. Supp. 2d 336, 348 n.2 (D.D.C. 2011) (holding because the court
applied the negligence standard, “the Faragher defense is inapplicable”);
Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (stating
defense did not apply to negligence standard); Lintz v. Am. Gen. Fin., Inc.,
50 F. Supp. 2d 1074, 1081 (D. Kan. 1999) (rejecting Faragher–Ellerth
27
defense in direct negligence action). By contrast, on a direct negligence
claim, the plaintiff must prove “the employer . . . failed to take prompt
and appropriate remedial action.” Lynch, 454 N.W.2d at 833.
B. Whether the District Court Correctly Instructed the Jury
on the Direct Negligence Theory. We next address whether the jury
was correctly instructed on the direct negligence theory. The district
court essentially adopted Haskenhoff’s proposed marshaling instruction,
which omitted an element she was required to prove—that HES “failed to
take prompt and appropriate remedial action.” Id. HES objected to the
omission of that element, and we conclude the district court prejudicially
erred by overruling the objection and giving Instruction No. 14 without
that language. Whether HES in fact took “prompt and appropriate
action” was a fighting issue at trial and a jury question. Haskenhoff did
not establish as a matter of law that HES failed to take prompt and
appropriate action.
The standard requiring a plaintiff to prove the employer’s failure to
take prompt remedial action “places a reasonable duty on an employer
who is aware of discrimination in the workplace to take reasonable steps
to remedy it.” Vaughn, 459 N.W.2d at 634. Whether the employer met
this duty is a question of fact and turns on “the gravity of the harm, the
nature of the work environment, and the resources available to the
employer.” Id.
The first time Haskenhoff complained to management about
Howes’s harassment, senior management promptly met with her and
Howes. Howes was verbally confronted in a manner that led him and
others to believe he faced termination. Howes apologized to Haskenhoff,
and Haskenhoff, believing the harassment issue was resolved, asked that
no further action be taken at that time. See Nurse “BE” v. Columbia
28
Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1310 (11th Cir. 2007)
(holding that if employee “did not want [the harassing behavior] reported
or acted upon, then [the employer] would not have been placed on proper
notice of the harassment” (alterations in original) (quoting Olson v.
Lowe’s Home Ctrs., Inc., 130 F. App’x 380, 391 n.21 (11th Cir. 2005))).
Haskenhoff made no further complaints to management during the next
nine months. HES management could reasonably assume its prior
remedial efforts were adequate. See An v. Regents of Univ. of Cal., 94
F. App’x 667, 676 (10th Cir. 2004) (determining employer not liable when
initial complaint limited to one comment that made employee feel
uncomfortable, then employee made no further complaint and assured
management that things were “okay” until second complaint).
When Haskenhoff next complained of harassment in August of
2011, HES took immediate remedial action. A formal investigation was
launched with outside counsel. Witnesses were interviewed. HES
management admonished coemployees to conduct themselves
professionally and take down the offensive screen saver. Sexual
harassment training was scheduled. Howes was disciplined and
apologized. See Wilson, 164 F.3d at 540 (jury may consider availability
and effectiveness of employer’s complaint procedure). HES was entitled
to have the jury decide whether Haskenhoff proved that it had failed to
take prompt and appropriate action.
Haskenhoff argues Vance imposes liability when an employer is
negligent in allowing harassment to occur, regardless of notice or
subsequent corrective action. We disagree. Haskenhoff relies on this
sentence in Vance: “As an initial matter, an employer will always be liable
when its negligence leads to the creation or continuation of a hostile
29
work environment.” 570 U.S. at ___, 133 S. Ct. at 2452. 3 However, the
Vance Court, two paragraphs later, reiterates the relevance of the
3It has been suggested that Vance created two types of negligence liability,
negligence in failing to prevent the harassment and negligence in failing to remedy it.
But the standard for both negligent failure to prevent and negligent failure to remedy is
the same: an employer is only liable if he knows or should have known of the
harassment and failed to take prompt measures to rectify it. See, e.g., Ocheltree v.
Scollon Prods., Inc., 335 F.3d 325, 333–34 (4th Cir. 2003) (“[T]he employer may be liable
in negligence if it knew or should have known about the harassment and failed to take
effective action to stop it.” (Emphasis added.)); Sharp v. City of Houston, 164 F.3d 923,
929 (5th Cir. 1999) (“An employer may be liable for sexual harassment if it ‘knew or
should have known of the harassment in question and failed to take prompt remedial
action.’ ” (quoting Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir. 1998));
Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1037 (7th Cir. 1998)
(“[E]mployers are liable for a co-employee’s harassment only ‘when they have been
negligent either in discovering or remedying the harassment.’ An employer’s legal duty
in co-employee harassment cases will be discharged if it takes ‘reasonable steps to
discover and rectify acts of sexual harassment by its employees.’ ” (citation omitted)
(quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997))); Spicer v.
Commw. of Va., Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995) (“On the fourth element
for establishing employer liability, we have repeatedly held that an employer cannot be
held liable for isolated remarks of its employees unless the employer ‘knew or should
have known of the harassment, and took no effectual action to correct the situation.’ ”
(quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)); Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 677 (10th Cir. 1990) (stating it was an “essential element for employer
liability” that the plaintiff establish the employer “inadequately responded to incidents
of harassment of which it knew or should have known”); Paroline v. Unisys Corp., 879
F.2d 100, 106 (4th Cir. 1989) (“In a hostile environment claim such as we have here, an
employer is liable for one employee’s sexual harassment of another worker if the
employer had ‘actual or constructive knowledge of the existence of a sexually hostile
working environment and took no prompt and adequate remedial action.’ ” (quoting
Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (emphasis added))), vacated
in part on other grounds, 900 F.2d 27 (4th Cir. 1990).
The employer’s knowledge and response are key: if the employer did not have
notice of the harassment, either actual or constructive, the employer is not liable. If an
employer is negligent in failing to discover workplace harassment, the employee
proceeds under a should-have-known framework, but the employer’s responsive actions
are still relevant. See, e.g., Sharp, 164 F.3d at 930 (analyzing employer’s constructive
knowledge of conduct and concluding it could be liable because it should have known of
harassment and tolerated it); Adler, 144 F.3d at 673, 676–77; Paroline, 879 F.2d at 107
(stating that employee must prove the employer should have reasonably anticipated
harassment because of its pervasiveness and that the employer “failed to take action
reasonably calculated to prevent such harassment”). Here, however, it is undisputed
that HES had actual knowledge of the harassment—Haskenhoff complained twice.
Thus, the jury should have been instructed that HES was liable only if it failed to take
prompt responsive action.
30
employer’s remedial efforts under a negligence theory: “Evidence that an
employer did not monitor the workplace, failed to respond to complaints,
failed to provide a system for registering complaints, or effectively
discouraged complaints from being filed would be relevant.” Id. at ___,
133 S. Ct. at 2453. Removing the requirement for the plaintiff to prove
the employer neglected to take corrective action would impose strict or
automatic liability on an employer whenever supervisor harassment
occurred without a tangible adverse employment action, a position our
court has never adopted and the Supreme Court has expressly declined
to adopt. See Faragher, 524 U.S. at 804–05, 118 S. Ct. at 2291–92.
Haskenhoff cites cases that she contends establish that an employer can
be liable regardless of whether it took remedial action. Yet each of those
decisions indicates the employer’s remedial action or lack thereof is
relevant to whether it acted negligently. 4
It has been suggested that the jury need not be instructed
regarding the employer’s remedial efforts if management, negligently
unaware of harassment, took no action. That is not this case.
4See Rock v. Blaine, No. 8:14-CV-1421 MAD/CHF, 2015 WL 3795886, at *1, *5
(N.D.N.Y. June 17, 2015) (noting employer is liable when negligence “perpetuates” a
hostile environment, and despite plaintiff’s several complaints to supervisors, harasser’s
conduct “was not remedied”); Killis v. Cabela’s Retail II, Inc., No. 13 C 6532, 2015 WL
128098, at *13 (N.D. Ill. Jan. 8, 2015) (determining that under negligence theory for
supervisor liability, employer’s comprehensive and immediate response to plaintiff’s
complaint was a “fundamental obstacle” to her recovery (quoting Muhammad v.
Caterpillar, Inc., 767 F.3d 694, 698 (7th Cir. 2014)); Schmidlin v. Uncle Ed’s Oil Shoppes,
Inc., No. 2:13-CV-10552, 2014 WL 3809415, at *11 (E.D. Mich. Aug. 1, 2014) (“To
establish notice of and negligent failure to address harassment, an employee must show
that ‘the employer, through its agents or supervisory personnel, knew or should have
known of the charged sexual harassment and failed to implement prompt and
appropriate corrective action.’ ” (Emphasis added.) (quoting Kauffman v. Allied Signal,
Inc., 970 F.2d 178, 183 (6th Cir. 1992))); O’Connell v. Peppino’s Catering Co., LLC, No.
1:13-CV-384, 2014 WL 794657, at *8 (W.D. Mich. Feb. 27, 2014) (noting under state
standard employer could be liable “only if the employer had reasonable notice of the
harassment and failed to take appropriate corrective action” (quoting Elezovic v. Ford
Motor Co., 697 N.W.2d 851, 861 (Mich. 2005))); Ríos DaSilva v. One, Inc., 980
F. Supp. 2d 148, 163 n.1 (D.P.R. 2013) (stating Vance serves to remind practitioners
“the employer is always liable if he was negligent in not taking action” (emphasis added)).
31
Haskenhoff on two occasions complained to management about Howes’s
harassment. On both occasions, management took action to stop the
harassment. It was for the jury to determine, under proper instructions,
whether HES’s responses were adequate—that is, whether it “failed to
take prompt and appropriate remedial action.” Lynch, 454 N.W.2d at
833.
We decline to interpret the ICRA to impose employer liability for
supervisor harassment under a direct negligence theory despite the
employer’s prompt and appropriate action to end the harassment.
Notably, the Equal Employment Opportunity Commission (EEOC) in
interpreting Title VII does not go so far. See 29 C.F.R. § 1604.11(d)
(2016) (“[A]n employer is responsible for acts of sexual harassment in the
workplace where the employer (or its agents or supervisory employees)
knows or should have known of the conduct, unless it can show that it
took immediate and appropriate corrective action.” (Emphasis added.)).
Indeed, most federal circuit model jury marshaling instructions for
sexual harassment under Title VII require the plaintiff to prove the
defendant failed to take prompt and appropriate remedial action. 5 None
5See Pattern Jury Instruction for Cases of Emp’t Discrimination for the Dist. Cts.
of the U.S. Ct. of Appeals for the First Circuit 2.3 (2011) (requiring plaintiff to prove six
elements, including “Fifth, [defendant; management level employees of defendant] either
knew or should have known of the harassment; and Sixth, [defendant; management
level employees of defendant] failed to take prompt and appropriate remedial action”
(emphasis added) (footnote omitted)); Third Circuit Model Civil Jury Instruction 5.1.5
(2016) (“You must find for [defendant] if you find that [defendant] has proved both of the
following elements by a preponderance of the evidence: First, [Defendant] exercised
reasonable care to prevent harassment in the workplace on the basis of [protected
status], and also exercised reasonable care to promptly correct any harassing behavior
that does occur.” (Emphasis added.)); Fifth Circuit Pattern Civil Jury Instruction 11.4
(2014) (“Plaintiff [name] must prove that: a. the harassment was known by or
communicated to a person who had the authority to receive, address, or report the
complaint, . . . or the harassment was so open and obvious that Defendant [name]
should have known of it; and b. Defendant [name] failed to take prompt remedial action
designed to stop the harassment.” (Emphasis added.)); Fed. Civil Jury Instruction of the
32
of the federal circuits hold an employer liable merely for “negligently
creating or continuing a hostile work environment”—as the jury was
instructed in this case. Rather, a party must not only show the employer
knew of the harassment, but also that it unreasonably failed to take
remedial action. See, e.g., Swinton, 270 F.3d at 803 (“[I]t was Swinton’s
burden . . . to prove that management knew or should have known of the
harassment and ‘failed to take reasonably prompt, corrective action.’ ”).
Under the instruction as given, the jury could have found HES liable
even if the jury found the employer had in fact taken prompt and
appropriate remedial action.
Employers would lose a key incentive to take corrective action if
they were automatically liable for harassment whether or not they put a
stop to it. As the Fifth Circuit observed, “Imposing vicarious liability on
an employer for a supervisor’s ‘hostile environment’ actions despite its
swift and appropriate remedial response to the victim’s complaint would
. . . undermine not only Meritor but Title VII’s deterrent policy.” Indest v.
Freeman Decorating, Inc., 164 F.3d 258, 266 (5th Cir. 1999). Employers
are better deterred from allowing harassment to continue if their prompt
corrective action will avoid liability. See Ellerth, 524 U.S. at 745, 118
S. Ct. at 2261 (“Limiting employer liability is also consistent with Title
_________________________
Seventh Circuit 3.04 (2015) (stating plaintiff must prove “seven things by a
preponderance of the evidence: . . . 7. Defendant did not take reasonable steps to [correct
the situation]/[prevent harassment from recurring”] (emphasis added)); Model Civil Jury
Instruction for the Dist. Cts. of the Eighth Circuit 8.42 (2017) (requiring plaintiff to
show seven elements, including “Seventh, the defendant failed to take prompt and
appropriate corrective action to end the harassment”); Model Civil Jury Instructions for
the Dist. Cts. of the Ninth Circuit 10.7 (2017) (“The plaintiff has the burden of proving
both of the following elements by a preponderance of the evidence: . . . 2. the
defendant or a member of the defendant’s management knew or should have known of
the harassment and failed to take prompt, effective remedial action reasonably calculated
to end the harassment.” (Emphasis added.)).
33
VII’s purpose to the extent it would encourage the creation and use of
antiharassment policies and grievance procedures.”).
Finally, allowing one marshaling instruction on direct negligence—
requiring the plaintiff to prove the employer knew or should have known
of the harassment and failed to take prompt and appropriate remedial
action—for both coemployee and supervisor harassment avoids
confusing jury instructions with differing standards. It also avoids
issues over whether a particular employee is a supervisor. Mixing
different authority levels of employees “presents no problem for the
negligence standard.” Vance, 570 U.S. at ___, 133 S. Ct. at 2452.
Haskenhoff is the master of her own pleadings. But by deciding to
pursue a direct negligence theory for supervisor harassment, rather than
vicarious liability, she assumed the burden of proving not only that HES
knew or should have known of Howes’s harassment, but also that it
failed to take prompt remedial action to stop it. Lynch, 454 N.W.2d at
833–34.
While the reasonableness of an employer’s response to
sexual harassment is at issue under both standards, the
plaintiff must clear a higher hurdle under the negligence
standard, where she bears the burden of establishing her
employer’s negligence, than under the vicarious liability
standard, where the burden shifts to the employer to prove
its own reasonableness and the plaintiff’s negligence.
Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999); see also
Swinton, 270 F.3d at 804 (“It might reasonably be argued, in fact, that
employers are ‘better off’ in the negligence context, where the plaintiff is
required to prove both the employer’s knowledge of the harassment (or
that it should have known) and that it failed to take reasonable corrective
action.”). The district court erred by omitting that element of proof from
Instruction No. 14. This error was not harmless.
34
Reversal is required when jury instructions contain a “material
misstatement of the law” or are misleading or confusing. Rivera, 865
N.W.2d at 902. When an instruction fails to convey a central principle of
liability, this warrants a new trial. See Benn v. Thomas, 512 N.W.2d 537,
539–40 (Iowa 1994) (remanding for new trial when jury instruction on
proximate cause “failed to adequately convey the existing law”); Law v.
Hemmingsen, 249 Iowa 820, 825–26, 89 N.W.2d 386, 390–91 (1958)
(determining refusal to instruct on well-settled principle of negligence “at
the very heart of the case” was error). The instruction omitted a central
element of the plaintiff’s claim—to show the failure of the employer to
take prompt and appropriate remedial action. Omission of this element
was a material misstatement of the law and entitles HES to a new trial.
See State v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011) (holding
omission in the jury instruction of element of offense “requires a new
trial”); Law, 249 Iowa at 825–26, 89 N.W.2d at 390–91 (reversing
because it was error for court to refuse to instruct on combined
negligence).
“We assume prejudice unless the record affirmatively establishes
that there was no prejudice.” Rivera, 865 N.W.2d at 903. No prejudice
results when “one instruction arguably omits a legal requirement that is
included in subsequent instructions on the ground that the instructions
are to be read as a whole.” Id. “When, however, an inadequate
instruction relating to the right of recovery goes to ‘the very heart of the
case,’ it is not rescued by abstract instructions elsewhere.” Id. (quoting
Law, 249 Iowa at 825, 89 N.W.2d at 390). That is what we have here.
The district court gave a separate instruction, No. 24, on remedial
action, which stated,
35
Once an employer knows or should have known of
sexual harassment, it must take prompt remedial action
reasonably calculated to end the conduct. The employer has
the duty to take this remedial action even if an employee
asks the employer not to do anything.
(Emphasis omitted.) This instruction was not cross-referenced in the
marshaling instruction or any other instruction and does not cure the
flaw in the marshaling instruction when the instructions are read as a
whole. The jury was nowhere told Haskenhoff had the burden to prove
HES failed to take prompt and appropriate remedial action to end the
harassment. 6
Haskenhoff cites no case holding the fatal omission in the
marshaling instruction could be cured by counsel during summation.7
6Nor is the plaintiff’s burden of proof addressed in Instruction No. 22, entitled
“Existence of Official Policies—Explained,” which told the jury that they could “consider
whether the defendant exercised reasonable care to”
[a] Monitor the workplace;
[b] Provide a system for making complaints;
[c] Encourage employees who believe they are being harassed to
complain
[d] Conduct prompt, thorough and impartial investigations into any
potential sexual harassment they become aware of, whether it is through a
complaint or observation or hearsay;
[e] Reasonably assure that any person who reports sexual harassment
will not suffer retaliation;
[f] Communicate their harassment policy to employees so employees will
understand what they may and may not do in the workplace;
[g] Educate the workforce, especially members of management, with
appropriate training to avoid committing sexual harassment . . . .
(Emphasis added.) This instruction allowed the jury to find for Haskenhoff if HES was
negligent in any of the above respects, even if the jury found the employer in fact took
prompt and appropriate remedial action to end the harassment.
7Hillrichs v. Avco Corp. is not to the contrary. 478 N.W.2d 70 (Iowa 1991),
overruled on other grounds by Reed v. Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1992),
overruled by Jahn v. Hyundai Motor Corp., 773 N.W.2d 550, 558–60 (Iowa 2009)).
There, we determined a uniform jury instruction on ordinary care adequately conveyed
the proper legal concept to the jury because it referred to care that “a reasonably careful
person would use under similar circumstances.” Id. at 74. We noted that the words
“under similar circumstances” allowed the standard to “adjust[] to both the status of
36
To the contrary, Haskenhoff’s counsel took advantage of the flawed jury
instruction in her closing argument. She did not say it was plaintiff’s
burden to prove HES failed to take prompt remedial action, but instead
argued
Number 24 talks about remedial action. Once an employer
knows or should know about the sexual harassment, it must
take prompt remedial action reasonably calculated to end
the conduct. The employer has a duty to take this remedial
action even if an employee asks the employer to do nothing.
(Emphasis added.) This is not a case like State v. Thorndike in which
counsel’s closing argument effectively cured the instructional error by
conceding the improper instruction did not apply under the evidence.
860 N.W.2d 316, 322–23 (Iowa 2015).
There was no instruction given by the court that allowed HES to
argue plaintiff could not recover without proving it failed to take prompt
remedial action. Closing arguments were lengthy, extending from the
morning until 2:30 p.m. and encompassing 130 pages of the trial
transcript. Closing arguments “generally carry less weight with a jury
than do instructions from the court.” Boyde v. California, 494 U.S. 370,
384, 110 S. Ct. 1190, 1200 (1990). “The former are usually billed in
advance to the jury as matters of argument, not evidence, and are likely
viewed as the statements of advocates; the latter . . . are viewed as
definitive and binding statements of the law.” Id. (citation omitted).
_________________________
the actor and the circumstances that the actor faces.” Id. We continued, “These are
matters that may be adequately conveyed to the jury by the evidence and by argument
of counsel under the instruction that the court gave.” Id. Hillrichs did not involve the
omission of an element of proof from the marshaling instruction.
37
We therefore determine HES is entitled to a new trial. 8 Rivera, 865
N.W.2d at 892 (“Prejudice occurs and reversal is required if jury
instructions have misled the jury, or if the district court materially
misstates the law.”).
C. Whether the District Court Erred in Instructing on a
“Motivating Factor” Standard for Retaliatory Discharge. HES argues
the district court erroneously adopted the lower “motivating factor”
causation standard used in discriminatory discharge claims (Iowa Code
section 216.6(1)(a)), rather than the higher “significant factor” causation
standard used in retaliatory discharge claims (Iowa Code section
8Because it may arise on remand, we clarify Haskenhoff cannot prove that HES
“knew or should have known” and failed to take remedial action by showing only that
Howes “knew what he was doing” when he behaved inappropriately toward Haskenhoff.
For example, the following exchange took place between Wendland and Haskenhoff’s
counsel regarding the alleged harassment:
Q. So regardless of whether somebody complains, if men are
commenting on another female’s breasts in the workplace, that would be
a violation of Homeland’s policy? A. Absolutely. If it was brought to my
attention and I knew about it or anybody in the company knew about it,
we would address it immediately.
Q. Including the plant manager? A. Including the plant
manager.
Q. And obviously if your plant manager is making the comments
about a woman’s breast, he knows he’s doing that; yes?
It is not sufficient that the perpetrator himself knows what he is doing, even if he is a
supervisor. Rather, to be placed on actual notice, someone “with authority to address
the problem” must be notified. Sharp, 164 F.3d at 930 (quoting Nash v. Electrospace
Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993); see also Sandoval v. Am. Bldg. Maint. Indus.,
Inc., 578 F.3d 787, 801 (8th Cir. 2009) (“An employer has actual notice of harassment
when sufficient information either comes to the attention of someone who has the power
to terminate the harassment, or it comes to someone who can reasonably be expected to
report or refer a complaint to someone who can put an end to it.”). The inquiry must
focus on whether someone with authority to discipline Howes and to take remedial
action knew of and failed to address the conduct. Sharp, 164 F.3d at 930 (“In the
context of sexual harassment, such persons are those with remedial power over the
harasser.”). Alternatively, Haskenhoff may prove constructive knowledge by showing
harassment was so open and pervasive that, in the exercise of reasonable care, it
should have been discovered by management-level employees. See Alvarez v.
Des Moines Bolt Supply, Inc., 626 F.3d 410, 422 (8th Cir. 2010).
38
216.11(2)). Haskenhoff argues that (1) under DeBoom, 772 N.W.2d at
12–13, the correct causation standard for all ICRA claims is the
motivating-factor test, and (2) unlike federal law, a lower causation
standard for retaliation should be used because the ICRA is a unified
statute and should be read broadly to effectuate its broad remedial goals.
See Iowa Code § 216.18(1). We note DeBoom was not a retaliation case
and apply our retaliation decisions that require the higher causation
standard. 772 N.W.2d at 13.
Our analysis begins with the text of the statute. The ICRA, Iowa
Code section 216.11(2), makes it an unfair or discriminatory practice for
[a]ny person to . . . retaliate against another person in any of
the rights protected against discrimination by this chapter
because such person has lawfully opposed any practice
forbidden under this chapter, obeys the provisions of this
chapter, or has filed a complaint, testified, or assisted in any
proceeding under this chapter.
In order to recover for retaliatory discharge, the plaintiff must prove
(1) he or she was engaged in statutorily protected activity,
(2) the employer took adverse employment action against
him or her, and (3) there was a causal connection between
his or her participation in the protected activity and the
adverse employment action taken.
Boyle, 710 N.W.2d at 750. The causation standard in retaliatory
discharge cases has been characterized as “a high one.” City of
Hampton, 554 N.W.2d at 535 (quoting Hulme, 480 N.W.2d at 42). The
causal connection “must be a ‘significant factor’ motivating the adverse
employment decision.” Id. (quoting Hulme, 480 N.W.2d at 42). A factor
is significant if the reason “ ‘tips the scales decisively one way or the
other,’ even if it is not the predominate reason behind the employer’s
decision.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302
39
(Iowa 1998) (quoting Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d
682, 686 (Iowa 1990)).
A separate provision, Iowa Code section 216.6(1)(a), forbids
discriminatory discharge, i.e., discharge because of discrimination based
on a protected characteristic. Retaliatory discharge is different; it
prohibits discharge or discrimination based on the employee’s engaging
in a protected activity. See id. § 216.11(2). Though the two concepts are
related, they are not the same; one prohibits status-based discriminatory
discharge, while the other prohibits discharge based on a protected
activity in which an employee chooses to engage. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2532 (2013)
(explaining the difference between status-based claims and retaliation
claims). Under the discriminatory discharge statute, an employee must
show discrimination based on a characteristic—not engaging in a
protected activity—constituted a “motivating factor” in the adverse action
of the employer. DeBoom, 772 N.W.2d at 12–13. Discrimination is a
“motivating factor” in an adverse action if an employee’s status as a
member of a protected class “played a part” in the employer’s decision.
Id. at 12 (emphasis omitted). This is a lower causation standard than the
significant-factor standard applied in retaliatory discharge cases under
the ICRA and the common law. 9
DeBoom clarified that the motivating-factor test applied to
discriminatory discharge cases. See DeBoom, 772 N.W.2d at 13. But it
did not alter—or even reference by name or Code section—retaliatory
9This standard does not require retaliation to be the sole cause; the retaliatory
motive may combine with other factors to produce the result so long as “the other
factors alone would not have done so—if, so to speak, it was the straw that broke the
camel’s back.” Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881, 888 (2014).
40
discharge claims. Id. Rather, in DeBoom, we were careful to note the
difference between the discriminatory discharge causation standard and
the “higher” causation standard of claims such as tortious discharge. Id.
We have frequently compared tortious discharge under common law and
retaliatory discharge under the ICRA, as the two have traditionally
possessed similar elements and causation standards. See Teachout, 584
N.W.2d at 301–02 (stating high causation standard for tortious discharge
and comparing to Hulme, a retaliatory discharge case under the ICRA);
see also Brown v. Farmland Foods, Inc., 178 F. Supp. 2d 961, 979 (N.D.
Iowa 2001) (“[T]he Iowa Supreme Court has consistently sought guidance
in its common-law retaliatory discharge cases from its decisions involving
claims of statutory retaliation, which further demonstrates that the Iowa
Supreme Court would analyze these distinct causes of action in a similar
manner.”); cf. Scott Rosenberg & Jeffrey Lipman, Developing a Consistent
Standard for Evaluating a Retaliation Case Under Federal and State Civil
Rights Statutes and State Common Law Claims: An Iowa Model for the
Nation, 53 Drake L. Rev. 359, 414–15 (2005) (“The federal courts have
used the same approach in defining actionable employment conduct in
both statutory and common law cases.”). We noted in DeBoom that the
lower motivating-factor standard did not apply to tortious discharge, nor
was it intended to alter the higher significant-factor causation standard
used in ICRA retaliatory discharge claims. 772 N.W.2d at 13.
Because Count II alleged retaliatory discharge under Iowa Code
section 216.11 and not discriminatory discharge under section
216.6(1)(a), the jury should have been instructed on the correct
causation standard—requiring Haskenhoff to prove her protected
conduct was a significant factor. See, e.g., French v. Cummins Filtration,
Inc., No. C11-3024-MWB, 2012 WL 3498566, at *3 (N.D. Iowa Aug. 15,
41
2012) (“[Under ICRA] [a]s to the causal connection element, the standard
is high: ‘[T]he “causal connection” must be a “significant factor”
motivating the adverse employment decision.’ ” (alteration in original)
(quoting City of Hampton, 554 N.W.2d at 535)); Gilster v. Primebank, 884
F. Supp. 2d 811, 831 n.4 (N.D. Iowa 2012) (analyzing both Title VII and
ICRA together using determinative-factor approach), overruled on other
grounds, 747 F.3d 1007 (8th Cir. 2014); Van Horn v. Best Buy Stores,
L.P., 526 F.3d 1144, 1148 (8th Cir. 2008) (applying same higher
causation to ICRA and federal claim).
Haskenhoff notes the ICRA discriminatory discharge and
retaliatory discharge provisions use “similar” language. Compare Iowa
Code § 216.6(1)(a) (stating it is a “discriminatory practice for any . . .
[p]erson to . . . discharge any employee . . . because of” a protected
characteristic (emphasis added)), with id. § 216.11 (stating it is a
“discriminatory practice for . . . [a]ny person to discriminate or retaliate
against another person in any of the rights protected against
discrimination by this chapter because such person has lawfully opposed
any practice forbidden under this chapter” (emphasis added)). 10 But, as
we previously noted in Estate of Harris v. Papa John’s Pizza, the
10The phrase “because of” does not require a motivating-factor standard of
causation. As the Supreme Court noted in Nassar, the default rule in interpreting
causation in tort is that “[i]n the usual course, this standard requires plaintiff to show
‘that the harm would not have occurred’ in the absence of—that is, but for—the
defendant’s conduct.” 570 U.S. ___, 133 S. Ct. at 2525 (quoting Restatement of Torts
§ 431 cmt. a (1934) (negligence)). Additionally, “the ordinary meaning of ‘because of’ is
‘by reason of’ or ‘on account of.’ ” Id. at ___, 133 S. Ct. at 2527 (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 2350 (2009)). Thus, the Nassar
Court concluded that when interpreting “because of,” it must mean that the retaliatory
intent was “ ‘the “reason” that the employer decided to act,’ or, in other words, that
‘[retaliation] was the “but-for” cause of the employer’s adverse decision.’ ” Id. at ___,
133 S. Ct. at 2527 (quoting Gross, 557 U.S. at 176, 129 S. Ct. at 2350).
42
retaliation provision of the ICRA mirrors almost exactly the retaliation
provision of Title VII, which states,
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
subchapter.
679 N.W.2d 673, 677 (Iowa 2004) (quoting 42 U.S.C.A. § 2000e–3
(2004)). “Title VII was designed to ensure equal opportunity in
employment for all, regardless of sex. The ICRA was modeled after Title
VII, and therefore we have consistently employed federal analysis when
interpreting the ICRA.” Id. at 677–78 (citation omitted). Finally, the
ICRA’s elements for establishing a prima facie case of retaliation were
derived “from federal decisions involving comparable provisions of Title
VII of the Civil Rights Act of 1964.” Hulme, 480 N.W.2d at 42 (citing 42
U.S.C. §§ 2000e–2000e-3).
Title VII provides a higher causation standard for retaliation claims
than discriminatory discharge actions. See Nassar, 570 U.S. at ___, 133
S. Ct. at 2534. In Nassar, a retaliation case brought under Title VII, the
Supreme Court explained that in codifying the 1991 Amendment to the
Civil Rights Act, Congress did not intend to lower the causation standard
for retaliatory discharge cases, although it unquestionably did so for
discriminatory discharge. Id. at ___, 133 S. Ct. at 2528–30. The Court
reasoned that the two provisions used different language and were found
in different sections of the Act and that Congress had inserted the
amendment into only one part. Id. The Court also pointed out the
increasing number of retaliation claims being filed. Id. at ___, 133 S. Ct.
43
at 2531. Lowering the causation standard, the Court explained, could
increase the number of unfounded claims:
In addition lessening the causation standard could
also contribute to the filing of frivolous claims, which would
siphon resources from efforts by employer[s], administrative
agencies, and courts to combat workplace harassment.
Consider in this regard the case of an employee who knows
that he or she is about to be fired for poor performance,
given a lower pay grade, or even just transferred to a
different assignment or location. To forestall that lawful
action, he or she might be tempted to make an unfounded
charge of racial, sexual, or religious discrimination; then,
when the unrelated employment action comes, the employee
could allege that it is retaliation. . . . Even if the employer
could escape judgment after trial, the lessened causation
standard would make it far more difficult to dismiss dubious
claims at the summary judgment stage. It would be
inconsistent with the structure and operation of Title VII to
so raise the costs, both financial and reputational, on an
employer whose actions were not in fact the result of any
discriminatory or retaliatory intent. Yet there would be a
significant risk of that consequence if respondent’s position
were adopted here.
Id. at ___, 133 S. Ct. at 2531–32 (citations omitted).
Turning to the ICRA, the retaliatory discharge and discriminatory
discharge provisions are codified at different sections of the Act, as they
are in Title VII, which supports the same conclusion reached in Nassar
that different causation standards apply. See id. at ___, 133 S. Ct. at
2530–31. Compare Iowa Code § 216.6 (discriminatory discharge), with id.
§ 216.11 (retaliatory discharge). Moreover, as the Nassar Court
concluded under Title VII, we have emphasized that the ICRA’s
retaliation protections cannot be so low as to “immunize the complainant
from discharge for past or present inadequacies, unsatisfactory
performance, or insubordination.” City of Hampton, 554 N.W.2d at 535–
36 (quoting Hulme, 480 N.W.2d at 43).
We reject Haskenhoff’s contention that we are “blindly” following
federal law. First, we are following our own precedent: our cases have
44
made clear that the correct causation standard for a retaliatory discharge
claim brought under section 216.11(2) of the ICRA is the significant-
factor standard. See id. at 535; Hulme, 480 N.W.2d at 42. We are
adhering to our consistent prior interpretations of the Act since 1992—
interpretations that have not been disturbed by the legislature—and the
doctrine of stare decisis. Ackelson v. Manley Toy Direct, L.L.C., 832
N.W.2d 678, 688 (Iowa 2013) (relying on stare decisis and legislative
acquiescence to adhere to interpretation of the ICRA disallowing punitive
damages); see also In re Estate of Vajgrt, 801 N.W.2d 570, 574 (Iowa
2011) (“The rule of stare decisis ‘is especially applicable where the
construction placed on a statute by previous decisions has been long
acquiesced in by the legislature . . . .’ ” (quoting Iowa Dep’t of Transp. v.
Soward, 650 N.W.2d 569, 574 (Iowa 2002)).
Predictability and stability are especially important in employment
law. Employers must comply with both state and federal law. Human
resources personnel and supervisors must apply myriad rules and
regulations in complex situations. Employers and prospective employers
should be able to rely on our precedents. We would generate significant
uncertainty if we overrule our own long-standing precedent to diverge
from settled federal interpretations. Uncertainty invites more litigation
and increasing costs for all parties. An uncertain or costly litigation
environment inhibits job creation.
The legislative history of the ICRA does not support the view that
we should depart from our long-standing practice of looking to federal
decisions to interpret the same or equivalent statutory language. While it
45
is true some provisions of the ICRA predated Title VII, 11 the ICRA’s
retaliation provision was enacted after Title VII and closely tracked the
federal provision. 12 Accordingly, we appropriately look to federal
decisions for guidance. Moreover, other states follow the federal
causation standard when interpreting their own state antiretaliation
statutes. 13 Congruity between state and federal requirements makes it
easier for employers and the bench and bar to apply and follow the law.
11Iowa had a statute predating Title VII, a criminal provision, which stated,
1. Every person in this state is entitled to the opportunity for
employment on equal terms with every other person. It shall be unlawful
for any person or employer to discriminate in the employment of
individuals because of race, religion, color, national origin or ancestry.
However, as to employment such individuals must be qualified to
perform the services or work required.
....
3. Any person, employer, labor union or officer of a labor union
or organization convicted of a violation of subsections one (1) or two (2) of
this Act shall be punished by a fine not to exceed one hundred dollars or
imprisonment in the county jail not to exceed thirty days.
1963 Iowa Acts ch. 330, § 1 (codified at Iowa Code § 735.6 (1966), subsequently
transferred to section 729.4 (1979)). This statute makes no mention of retaliation.
12See 1965 Iowa Acts ch. 121, § 8 (codified at Iowa Code § 105A.8 (1966)). The
Iowa provision used the language in Title VII of the Civil Rights Act of 1964. Compare
id. § 8(2) (prohibiting retaliation “because such person has lawfully opposed any
practice forbidden under this Act, obeys the provisions of this Act, or has filed a
complaint, testified, or assisted in any proceeding under this Act”), with Civil Rights Act
of 1964, Pub. L. No. 88–352, § 704(a), 78 Stat. 241, 258 (codified as amended at 42
U.S.C. § 2000e-3(a) (prohibiting retaliation “because he has opposed any practice made
an unlawful employment practice by this title, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this title”).
13For example, in Wholf v. Tremco, Inc., the Ohio Court of Appeals applied a
higher causation standard to a retaliation claim under its own civil rights statute. 26
N.E.3d 902, 908–09 (Ohio Ct. App. 2015). The Wholf court noted,
[T]he [Ohio] General Assembly separated status-based discrimination
claims from retaliation claims in separate subsections of R.C. 4112.02.
And, despite Wholf’s argument to the contrary, Ohio’s anti-retaliation
provision is nearly identical to Title VII’s anti-retaliation provision.
Id. at 908. The court also pointed out that “the ‘but-for’ standard articulated in Nassar
is not a new standard; it is a clarification of the standard that has been applied in
46
We conclude the district court’s instruction applying the
motivating-factor causation standard was erroneous. In the marshaling
instruction for Count II, retaliatory discharge, the district court should
have instructed the jury that Haskenhoff must prove the protected
activity was a significant factor motivating the adverse action, consistent
with our precedent.
D. Whether the District Court’s Jury Instruction Improperly
Defined “Adverse Employment Action.” Next, we address whether the
court’s instruction defining an adverse employment action was
erroneous. HES argues the instruction reflected an inaccurate statement
of the law because it listed the following as examples of adverse action:
reprimands or threats of reprimands, . . . false accusations
or complaints, being investigated, being placed on a
performance improvement plan, being placed on probation,
or other actions which adversely affect or undermine the
_________________________
retaliation cases since the Supreme Court decided Price Waterhouse [v. Hopkins, 490
U.S. 228, 109 S. Ct. 1775 (1989),] in 1989.” Id. at 912; see also Asbury Univ. v. Powell,
486 S.W.3d 246, 255 (Ky. 2016) (noting that previous cases aligned with Nassar by
employing a substantial-factor test, in which the improper reason must be an “essential
ingredient” in the discharge (quoting First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d
185, 187 (Ky. 1994))); Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 439 (Tenn. Ct.
App. 2015) (stating that Tennessee Act did not require sole causation, but required but-
for causation, following Nassar); Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901
(Tex. Ct. App. 2013) (stating that unlike discrimination claims, retaliation claims
require higher standard of causation under Texas Act).
Other courts recognize that a higher standard of causation is necessary for
retaliation claims, though they define the standard in varying ways. See Hensley v.
Botsford Gen. Hosp., No. 323805, 2016 WL 146355, at *6 n.1 (Mich. Ct. App. Jan. 12,
2016) (per curiam) (suggesting that under a significant-factor or but-for test, the result
would be the same); Thompson v. Dep’t of Corr., No. 319668, 2015 WL 1261539, at *5
(Mich. Ct. App. March 19, 2015) (per curiam) (“While there is authority that states an
employer is liable if discrimination is a motivating factor, retaliation cases continue to
require a showing that retaliation must be a significant factor.” (Citation omitted.));
Lacasse v. Owen, 373 P.3d 1178, 1183 (Or. Ct. App. 2016) (“[P]laintiff must prove that
defendant’s unlawful motive was a substantial factor in his termination, or, in other
words, that he would have been treated differently in the absence of the unlawful
motive.”); Allison v. Hous. Auth., 821 P.2d 34, 94–95 (Wash. 1995) (en banc) (declining
to adopt a standard imposing liability if retaliation affected motive “to any degree”).
47
position of the employee[,] . . . an employer seeking out
negative feedback on an employee, or condoning or
encouraging other employees to complain about her.
HES points out that no Iowa court has held these actions are “materially
adverse actions” for purposes of a retaliation claim under the ICRA.
In order to prove retaliation, a plaintiff must show “the employer
took adverse employment action against him or her.” Boyle, 710 N.W.2d
at 750. We previously held that an adverse employment action is “an
action that detrimentally affects the terms, conditions, or privileges of
employment. Changes in duties or working conditions that cause no
materially significant disadvantage to the employees are not adverse
employment actions.” Channon v. United Parcel Serv., Inc., 629 N.W.2d
835, 862 (2001). “[A] wide variety of actions, some blatant and some
subtle, can qualify” as adverse employment actions. Id. at 863 (quoting
Bryson v. Chi. State Univ., 96 F.3d 912, 916 (7th Cir. 1996)). Adverse
action may include “disciplinary demotion, termination, unjustified
evaluations and reports, loss of normal work assignments, and extension
of probationary period.” Id. (quoting McKenzie v. Atl. Richfield Co., 906
F. Supp. 572, 575 (D. Colo. 1995)). We have also concluded that losing a
prestigious title or opportunity for advancement, physically punching an
employee, and reducing an employee from full- to part-time can qualify
as adverse employment actions. See id. at 865 (constructive demotion);
see also Estate of Harris, 679 N.W.2d at 678 (punching employee in
chest); City of Hampton, 554 N.W.2d at 536 (reduction of hours).
Whether an adverse employment action occurred “normally depend[ed]
on the facts of each situation.” Channon, 629 N.W.2d at 862 (quoting
Bryson, 96 F.3d at 916); see also Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 71, 126 S. Ct. 2405, 2417 (2006) (“[M]aterially adverse
depends upon the circumstances of the particular case, and ‘should be
48
judged from the perspective of a reasonable person in the plaintiff’s
position, considering “all the circumstances.” ’ ” (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1003
(1998))).
The Supreme Court in Burlington Northern provided further
guidance on what qualifies as an adverse employment action in a
retaliation claim. A female employee, Sheila White, was assigned to
operate a forklift, a desirable position because it was less arduous and
cleaner than other tasks. 548 U.S. at 57–58, 126 S. Ct. at 2409. After
White complained about a male employee harassing her, she was moved
off forklift duty and reassigned to a more physically demanding position.
Id. at 58, 126 S. Ct. at 2409. White filed an EEOC complaint. Id.
Shortly thereafter, her supervisor alleged she was insubordinate, and the
company suspended her without pay for thirty-seven days. Id. After
determining the complaint was unfounded, the company reinstated her
with backpay. Id.
Deciding whether White had suffered an adverse employment
action, the Court declined to limit a retaliatory adverse action to only
those that “affect the terms and conditions of employment.” Id. at 64,
126 S. Ct. at 2412–13. This differed from the Court’s interpretation of
adverse action under the antidiscrimination provision, which only
prohibited “employment-related” adverse action. Id. at 63, 126 S. Ct. at
2412. This was because the antidiscrimination provision was intended
to promote equality in employment opportunities, and therefore, the
purpose would be achieved “were all employment-related discrimination
miraculously eliminated.” Id. But the Court recognized the retaliation
provision’s objective could not likewise be achieved by only prohibiting
employment-related harms because “[a]n employer can effectively
49
retaliate against an employee by taking actions not directly related to his
employment or by causing him harm outside the workplace.” Id.
Thus, the Court took a broader approach, allowing a plaintiff
alleging an adverse action was “materially adverse” to prove the action
would have “dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (quoting Rochon
v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The Court
elaborated,
We speak of material adversity because we believe it is
important to separate significant from trivial harms. Title
VII, we have said, does not set forth “a general civility code
for the American workplace.” An employee’s decision to
report discriminatory behavior cannot immunize the
employee from those petty slights or minor annoyances that
often take place at work and that all employees experience.
The antiretaliation provision seeks to prevent employer
interference with “unfettered access” to Title VII’s remedial
mechanisms. It does so by prohibiting employer actions that
are likely “to deter victims of discrimination from
complaining to the EEOC,” the courts, and their employers.
And normally petty slights, minor annoyances, and simple
lack of good manners will not create such deterrence.
Id. (citations omitted) (first quoting Oncale, 523 U.S. at 80, 118 S. Ct. at
1002; and then quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117
S. Ct. 843, 848 (1997)).
The Court stressed that the “significance of any given act of
retaliation will often depend on the particular circumstances.” Id. at 69,
126 S. Ct. at 2415. Under this standard, the Court held that
reassignment to a less desirable job and suspension was an adverse
employment action. Id. at 71, 126 S. Ct. at 2417. The Court noted,
Common sense suggests that one good way to discourage an
employee such as White from bringing discrimination
charges would be to insist that she spend more time
performing the more arduous duties and less time
performing those that are easier or more agreeable.
50
Id. at 70–71, 126 S. Ct. at 2416. Still, the Court took pains to recognize
that “reassignment of job duties is not automatically actionable” and will
“depend[] upon the circumstances of the particular case.” Id. at 71, 126
S. Ct. at 2417. The Court also concluded that although White had
received backpay for the time of her suspension, it was still adverse
action because “White and her family had to live for 37 days without
income. . . . Many reasonable employees would find a month without a
paycheck to be a serious hardship.” Id. at 72, 126 S. Ct. at 2417. We
find Burlington Northern persuasive and adopt it as the appropriate
inquiry for evaluating an adverse employment action under the ICRA.
Burlington Northern, however, does not rescue the jury instruction
here. Even before Burlington Northern, we recognized that adverse
employment actions can occur in a variety of situations and “will
normally depend on the facts of each situation.” Channon, 629 N.W.2d
at 862 (quoting Bryson, 96 F.3d at 916). To the extent that Burlington
Northern broadened the inquiry to situations that do not directly affect
the terms or conditions of employment, the jury instruction captured this
sentiment, defining adverse action as “anything that might dissuade a
reasonable person from making or supporting an allegation of
discrimination or harassment.” But the instruction went too far when it
effectively told the jury that reprimands or performance improvement
plans constituted adverse action as a matter of law. Cases both before
and after Burlington Northern have consistently held that “a negative
performance review on its own does not constitute an ‘adverse
employment action’ . . . unless the review was relied on in making
promotion decisions about the employee.” Rebouche v. Deere & Co., 786
F.3d 1083, 1088 (8th Cir. 2015).
51
Prior to Burlington Northern, in Farmland Foods, when an employer
criticized an employee because of the slow pace of his work, we
determined that “occasional complaints voiced by an employer about
employee performance standards” did not constitute “substantial
evidence of a materially adverse employment action.” 672 N.W.2d at
742. We explained that the employee’s internal transfer also did not
qualify as an adverse action because “minor changes in working
conditions that only amount to an inconvenience cannot support
discrimination.” Id. We added, “An employment action is not adverse
merely because the employee does not like it or disagrees with it.” Id.
Similarly, in Powell v. Yellow Book USA, Inc., although an employee
received three written reprimands after filing a complaint with the ICRC,
“she [could] point to no cut in her pay, no reduction in her hours, nor
any other significant change to the conditions of her employment.” 445
F.3d 1074, 1079 (8th Cir. 2006). The Eighth Circuit concluded that
“formal criticisms or reprimands that do not lead to a change in
compensation, responsibilities, or other benefits do not constitute an
adverse employment action under Title VII.” Id. In addition, “placing [an
employee] on a ‘performance improvement plan,’ without more, [does] not
constitute an adverse employment action.” Givens v. Cingular Wireless,
396 F.3d 998, 998 (8th Cir. 2005) (per curiam).
A majority of circuits addressing the question have held that a
reprimand or performance improvement plan, without more, cannot be
considered an adverse employment action under Burlington Northern.
See Rebouche, 786 F.3d at 1088; see also Jensen-Graf v. Chesapeake
Emp. Ins., 616 F. App’x 596, 598 (4th Cir. 2015) (per curiam) (concluding
denial of professional development course because employee was on
performance improvement plan was not adverse action under Burlington
52
Northern); Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 715
(11th Cir 2013) (per curiam) (“[T]he negative performance evaluation
would not, by itself, have deterred a reasonable person from making a
charge of discrimination, especially in this case, where such an
evaluation, by itself, would not impact his salary or job status.”); Fox v.
Nicholson, 304 F. App’x 728, 733 (10th Cir. 2008) (per curiam) (applying
Burlington Northern under Americans with Disabilities Act and finding
that when employee had lower scores and negative comments on reviews
but was still in satisfactory range, no adverse employment action);
Vaughn v. Louisville Water Co., 302 F. App’x 337, 348 (6th Cir. 2008)
(stating lower performance reviews may only be adverse actions if they
“significantly impact an employee’s wages or professional advancement”);
James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007)
(concluding poor evaluations not adverse action unless “markedly worse
than earlier ones” and impacted “professional advancement” because
they would not have dissuaded a reasonable employee from filing a Title
VII claim).
Under the facts of this case, the performance improvement plan,
alone, did not cause Haskenhoff material harm either within the
workplace or outside of it. Haskenhoff was never suspended, with or
without pay. See Burlington N., 548 U.S. at 72, 126 S. Ct. at 2417. Her
work hours were not reduced, nor was her pay cut. The performance
improvement plan did not affect her professional advancement. See id.
at 69, 126 S. Ct. at 2416. Her duties and status remained unchanged,
both within the workplace and outside of it. Under her performance
improvement plan, Haskenhoff was only required to abide by rules
applicable to others in her position. See Fischer v. Andersen Corp., 483
F.3d 553, 556–58 (8th Cir. 2007) (holding that placement on
53
performance improvement plan was not a constructive discharge when
employee acknowledged that plan requirements “were largely fair and in
conformance with what one would expect from an engineer”). 14
Moreover, Finke and Wendland assured Haskenhoff that if she wanted
any revisions, the plan would be changed to reflect her concerns. The
timing of the plan and allegations giving rise to it were suspect, but these
factors were for the jury to weigh under a correct instruction. The
district court erred by instructing the jury the performance improvement
plan was an adverse employment action as a matter of law.
“We have on a number of occasions found instructions that unduly
emphasized certain evidence were flawed and required reversal.” Alcala,
880 N.W.2d at 710 (quoting Burkhalter v. Burkhalter, 841 N.W.2d 93,
106 (Iowa 2013)). Jury instructions should not comment on specific
evidence or erroneously advise the jury “that certain facts are undisputed
when there is conflicting evidence on the question.” Locksley v.
Anesthesiologists of Cedar Rapids, P.C., 333 N.W.2d 451, 455 (Iowa
1983); see also 89 C.J.S. Trial § 581, at 36 (2012) (“[I]mpermissible
comments in jury instructions include those where the court assumes
the truth of a material controverted fact or . . . withdraws some pertinent
evidence from the jury’s consideration.”). For example, in Locksley, we
upheld a district court’s refusal to give a jury instruction that defendant
was competent as a matter of law because his competence was disputed,
14The performance improvement plan stated Haskenhoff must abide by the
following: (1) not “walk[] off the job and abandon [her] job responsibilities”; (2) not “us[e]
vulgar language towards another”; (3) not “send[] hostile, disrespectful, or inappropriate
emails to employees”; (4) not “post[] comments about the company or other employees
on a social network”; (5) go through the chain of command rather than “address[ing] the
problem [her]self”; (6) attend work during the “core work hours of 8AM to 4PM” and
“approv[e] ahead of time” coming in or leaving early; (7) not leave the plant “during the
work day for non-work related reasons”; and (8) approve paid time off “ahead of time.”
54
and the proposed instruction would have taken a factual determination
from the jury. 333 N.W.2d at 455.
Instruction No. 30 provided that certain activities constituted
adverse employment actions as a matter of law. The list included
matters that no court in Iowa—or the Iowa Civil Rights Commission or
EEOC, for that matter—has concluded constitute an adverse
employment action as a matter of law. See EEOC Enforcement Guidance
on Retaliation and Related Issues (Aug. 25, 2016), https://
www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref113. By
stating certain instances of conduct that occurred in this case were
examples of adverse employment actions (and thus adverse action as a
matter of law), the instruction took that factual determination away from
the jury and relieved Haskenhoff of her burden of proof on that element
of the retaliation claim. See Anderson, 620 N.W.2d at 267 (providing
examples of breaches of duty of care in negligence action takes
determination away from the jury because jury must be the one to apply
the legal standard to the facts). We conclude the adverse-action
instruction misstated the law and unduly emphasized certain evidence.
This prejudicial error requires a new trial.
E. Whether the Constructive Discharge Instruction Misstated
the Law. We next address the district court’s instruction on constructive
discharge. “Constructive discharge exists when the employer deliberately
makes an employee’s working conditions so intolerable that the employee
is forced into an involuntary resignation.” Van Meter Indus. v.
Mason City Human Rights Comm’n, 675 N.W.2d 503, 511 (Iowa 2004)
(quoting First Judicial Dist. Dep’t of Corr. Servs. v. Iowa Civil Rights
Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)). The policy behind constructive
discharge is simple: an employer “should not be able to accomplish
55
indirectly what the law prohibits directly.” 1 Barbara T. Lindemann
et al., Employment Discrimination Law 21-33 (5th ed. 2012) [hereinafter
Lindemann].
In an attempt to avoid liability, an employer may refrain from
actually firing an employee, preferring instead to engage in
conduct causing him or her to quit. The doctrine of
constructive discharge addresses such employer-attempted
“end runs” around wrongful discharge and other claims
requiring employer-initiated terminations of employment.
Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000) (quoting
Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1025 (Cal. 1994)
(en banc)). Employees often allege discriminatory constructive discharge
because it allows recovery of backpay. Van Meter Indus., 675 N.W.2d at
510–11. “[T]rivial or isolated acts of the employer are not sufficient to
support a constructive discharge claim.” Id. at 511. “Rather, the
‘working conditions must be unusually “aggravated” or amount to a
“continuous pattern” before the situation will be deemed intolerable.’ ”
Id. (quoting Haberer v. Woodbury County, 560 N.W.2d 571, 576 (Iowa
1997)). Constructive discharge is not its own cause of action, but must
be asserted under a common law or statutory framework, such as the
Iowa Civil Rights Act. See Balmer, 604 N.W.2d at 642 (outlining that
constructive discharge can be a form of wrongful discharge or asserted
under statute allowing recovery). As such, it can either be alleged under
a discrimination claim (“The employer made my working conditions
intolerable by discriminating on the basis of an unfair characteristic.”),
or as an adverse action under a retaliation theory (“The employer
retaliated against me by making my working conditions intolerable.”). As
is the case here, “[c]onstructive discharge, like any other discharge, is an
adverse employment action that will support an action for unlawful
56
retaliation.” West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir.
1995).
HES asserts three errors in the constructive discharge instruction.
First, HES contends that it was error to instruct the jury, “The employer
need not really want the employee to quit.” Second, HES argues the
district court erred by inserting a subjective standard into the definition
of constructive discharge. Third, HES assigns error to the district court’s
refusal to allow an instruction stating “conditions will not be considered
intolerable unless the employer has been given a reasonable chance to
resolve the problem.”
1. Employer need not want the employee to quit. We conclude
there was no error in the district court’s instruction on the principle that
“[t]he employer need not really want the employee to quit.” In Van Meter
Industries, Jane Sires quit her job with Van Meter Industries after being
passed over for a promotion and “relegated to the operations side of the
business where there was no reasonable likelihood of advancement into a
manager position” because of her sex. 675 N.W.2d at 511. Sires
conceded she did not think Van Meter Industries “really wanted her to
quit.” Id. at 512. We stated,
Although it may be undisputed that VMI wanted Sires to
stay on the job, this fact does not preclude a finding that the
company deliberately rendered Sires’ working conditions so
intolerable that a reasonable employee in Sires’ position
would resign.
Id. It is enough “that the employee’s resignation was a reasonably
foreseeable consequence of the insufferable working conditions created
by the employer.” Id. We reversed the district court’s finding there was
not substantial evidence Sires was constructively discharged. Id. at 513.
Pursuant to Van Meter Industries, the jury was correctly instructed the
57
employer need not really want the employee to quit to claim constructive
discharge.
2. Objective standard for constructive discharge. HES next asserts
error because the constructive discharge instruction wrongly directed the
jury to consider a subjective standard. The instruction stated, “The
employee must show that she was subjected to sexual harassment or
retaliation [that] made her believe there was no chance for fair treatment
at Homeland.” (Emphasis added.) We conclude it should have said,
“made her reasonably believe.”
The test for constructive discharge is objective, evaluating whether
a reasonable person in the employee’s position would have been
compelled to resign and whether an employee reasonably believed there
was no possibility that an employer would respond fairly. Id. at 511.
“The issue thus is not how plaintiff felt but whether a reasonable person
in his position would have felt the same way.” Reihmann v. Foerstner,
375 N.W.2d 677, 683 (Iowa 1985).
“[W]orking conditions must be unusually ‘aggravated’ or amount to
a ‘continuous pattern’ before the situation will be deemed intolerable.”
Van Meter Indus. 675 N.W.2d at 511 (quoting Haberer, 560 N.W.2d at
576). In Haberer, a police officer resigned after he was placed on a paid,
eighteen-month suspension followed by an unpaid thirty-day suspension
pending a criminal investigation against him. 560 N.W.2d at 573. When
the officer returned to duty, he was reassigned to office work. Id. After
receiving notice his wages would be garnished for unpaid child support,
the officer resigned. Id. We held, as a matter of law, no constructive
discharge had occurred. Id. at 578. Haberer’s reassignment to office
work was not “(1) a change in grade, (2) inconsistent with or outside the
scope of his job description, (3) a decrease in pay or prestige, (4)
58
impossible to do, or (5) anything beyond a mere ‘difficulty’ because of a
lack of ‘experience.’ ” Id. at 577. We noted,
Under the cases, an employee cannot simply “quit and sue,”
claiming he or she was constructively discharged. The
conditions giving rise to the resignation must be sufficiently
extraordinary and egregious to overcome the normal
motivation of a competent, diligent, and reasonable employee
to remain on the job to earn a livelihood and to serve his or
her employer. . . .
. . . Every job has its frustrations, challenges, . . . and
disappointments; these inhere in the nature of work. [An
employee is not] guaranteed a working environment free of
stress.
Id. at 575–76 (alteration in original) (quoting Turner, 876 P.2d at 1026–
27).
The first paragraph of the constructive discharge instruction
focused on whether the conditions were “intolerable so that the employee
reasonably feels forced to quit.” But the second paragraph implied that
“intolerable” conditions equated to the employee’s subjective belief there
was “no chance for fair treatment at Homeland.” This was not a correct
statement of law. See Van Meter Indus., 675 N.W.2d at 511–12 (stating
that constructive discharge results when “employee has no recourse
within the employer’s organization or ‘reasonably believes there is no
chance for fair treatment’ ” (emphasis added) (citation omitted) (quoting
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997))).
Nevertheless, omitting “reasonably” in one sentence of the
constructive discharge instruction was harmless when the instructions
are read as a whole. “[W]e look to the instructions as a whole and do not
require perfection.” Rivera, 865 N.W.2d at 902. Another instruction
stated,
59
INSTRUCTION NO. 34
INTOLERABLE WORKING CONDITIONS – DEFINED
Working conditions are intolerable if a reasonable
person in the plaintiff’s situation would have deemed
resignation the only reasonable alternative.
The conditions giving rise to the resignation must be
sufficiently extraordinary and egregious to overcome the
normal motivation of a competent, diligent and reasonable
employee to remain on the job to earn a livelihood and to
serve his or her employer.
The adverse working conditions must be unusually
“aggravated” or amount to a “continuous pattern” before the
situation will be deemed intolerable. A single, trivial or
isolated act is insufficient to support a constructive
discharge claim.
The instructions on constructive discharge mentioned the standard of
“reasonable belief” or “reasonable employee” no less than five times. In
addition, the sentence immediately following the offending statement in
the marshaling instruction clarified the objective standard, elaborating
that the employee must “reasonably believe” there is no possibility of fair
treatment. Reading the instructions together “leads to the inevitable
conclusion the jury could not have misapprehended the issue” on the
constructive discharge objective standard. Moser v. Stallings, 387
N.W.2d 599, 605 (Iowa 1986).
3. Reasonable chance to resolve the problem. HES raises a final
point that the district court should have given its requested instruction
stating that “conditions cannot be considered intolerable unless the
employer has been given a reasonable chance to resolve the problem.”
We conclude HES’s requested instruction was a correct statement of the
law and was not adequately embodied in other instructions. Therefore,
on this record, it was reversible error for the district court to refuse to
give that instruction.
In Van Meter Industries, we squarely decided that an employee
must give an employer “a reasonable chance to resolve the problem.”
60
675 N.W.2d at 511. Sires reported to one of her superiors and to the
director of human resources before resigning that she felt she “ ‘had
reached [the] highest level [she] was going to be allowed to go’ and that
she was considering resigning.” Id. at 508 (alterations in original). Her
superior asked her to “wait,” and the human resources director told her
to “hang in there.” Id. A week passed with no response. Id. Sires then
received a phone call in which she was given “vague reassurance[s]” and
informed that if the individual who made the promotion decision “had it
to do over again, he would still promote [the male employee] over her.”
Id. Sires resigned two days later, and Van Meter Industries accepted her
resignation without protest. Id. The commission found that Sires had
been constructively discharged. Id. at 509. The district court reversed,
believing “Sires had not given VMI ‘any opportunity to work on the
problem before she quit,’ ” among other reasons. 15 Id. at 510.
On review, we began by noting that “conditions will not be
considered intolerable unless the employer has been given a reasonable
chance to resolve the problem.” Id. at 511. We then tempered this
statement: “On the other hand, an employee need not stay if he or she
reasonably believes there is no possibility the employer will respond
fairly.” Id. Examining Sires’ constructive discharge claim, we observed
she gave Van Meter Industries a reasonable opportunity to remedy the
discrimination. Id. at 513. Although she waited only one month before
15It has been suggested our decision in Van Meter Industries was not
precedential on this point. However, whether Sires could recover without giving the
employer a “reasonable opportunity to resolve the problem” was a fighting issue. That
was the basis for the district court’s reversal of the commission’s decision. See
Van Meter Indus., 675 N.W.2d at 510. We recognized the defendant employer “claim[ed]
Sires failed to give the company an adequate opportunity to address her grievances and
so cannot rely on the constructive discharge doctrine.” Id. at 513. We addressed that
claim, spending almost a full page on the discussion. Id.; see also Ackelson, 832
N.W.2d at 688 (“We are slow to depart from stare decisis and only do so under the most
cogent circumstances.”).
61
quitting, Sires had a reasonable belief her employer would not resolve the
problem:
In the weeks between Meyers’ promotion and Sires’
resignation the company not only took no action to
investigate Sires’ complaints, it gave no indication that it
intended to conduct an inquiry. The company’s indifference
was further demonstrated by the fact Sires was referred to
the individual who made the discriminatory promotion
decision to seek a resolution of her grievance. This
individual, rather than assuring Sires that appropriate and
prompt remedial action would be taken, informed her that he
would make the same decision again if he had it to do over
and reaffirmed that the company saw her future in
operations.
Id. (citation omitted). Because Sires demonstrated a reasonable belief
her employer would not resolve the problem, we concluded,
[W]e cannot say under the specific circumstances of this
particular case that she acted precipitously. A review of the
evidence shows this case is not one where the company did
not have sufficient time to rectify its wrong. . . . Rather, this
case presents a situation where the company, when given
the opportunity, chose to perpetuate its discriminatory
practices.
Id.
We supported our decision by citing Iowa precedent and precedent
from the Eighth Circuit. See id. at 511 (citing Breeding v. Arthur J.
Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999), abrogated in part
on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir. 2011); First Judicial Dist. Dep’t of Corr. Servs., 315 N.W.2d at
89). In First Judicial District Department of Correctional Services, we
denied recovery on a race and disability constructive discharge claim
when the department of corrections issued an order restricting an
African-American blind counselor’s access to the jail due to a security
risk. 315 N.W.2d at 85. The employee quit one day later. Id. We held
the employee “was precipitous; she overreacted.” Id. at 89. She “failed to
62
make a good faith effort to determine whether the restriction from the jail
would render her employment as onerous as she now contends,” and the
record contained nothing showing the restriction was permanent. Id.
Her “immediate resignation ... deprived [the employer] of the
opportunity to investigate and remedy the situation.” Id.; see also
Haberer, 560 N.W.2d at 577 (denying recovery based in part on
employee’s “rash and intemperate” act of resigning); cf. Johnson v. Dollar
Gen., 880 F. Supp. 2d 967, 998 n.6 (N.D. Iowa 2012) (“[T]he Iowa
Supreme Court has observed that ‘conditions will not be considered
intolerable [so as to constitute constructive discharge] unless the
employer has been given a reasonable chance to resolve the problem,’
and Johnson gave Dollar General and Williams no such opportunity
before resigning.” (alteration in original) (citation omitted) (quoting
Van Meter Indus., 675 N.W.2d at 511)), aff’d, 508 F. App’x 587 (8th Cir.
2013).
The Eighth Circuit has held that to demonstrate constructive
discharge, an employee must show that a “reasonable person would find
the working conditions intolerable.” Phillips v. Taco Bell Corp., 156 F.3d
884, 890 (8th Cir. 1998). “Such intolerability . . . is judged by an
objective standard, not the plaintiff’s subjective feelings.” Id. “To act
reasonably, an employee has an obligation not to assume the worst and
not to jump to conclusions too quickly.” Tidwell v. Meyer’s Bakeries,
Inc., 93 F.3d 490, 494 (8th Cir. 1996). Thus, “[a]n employee who quits
without giving [the] employer a reasonable chance to work out a problem
has not been constructively discharged.” Id. Indeed, “passivity in the
face of working conditions alleged to be intolerable is often inconsistent
with the allegation.” Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th
Cir. 1998). But “[i]f an employee quits because she reasonably believes
63
there is no chance for fair treatment, there has been a constructive
discharge.” Kimzey, 107 F.3d at 574.
Peggy Kimzey, an employee at Wal-Mart, complained to
management several times about repeated harassment by her supervisor.
Id. at 571. Management told her they were aware of the problem but
took no action to investigate or follow up on the complaint. Id. Even
after Kimzey resigned because of her supervisor’s continued conduct, her
manager “did not indicate that he would investigate her complaints or
take any other action required by Wal-Mart’s open door policy.” Id. at
572. The Eighth Circuit held that “[a] reasonable jury could find that the
continuing harassment and management’s indifference rendered
Kimzey’s working conditions intolerable and forced her to quit.” Id. at
574–75. It highlighted the evidence that members of Wal-Mart knew
Kimzey was being harassed, but “generally ignored those complaints.”
Id. at 574. Because Kimzey demonstrated a reasonable belief there was
no chance of fair treatment at Wal-Mart, the Eighth Circuit found no
error in submitting the constructive discharge claim to the jury. Id. at
575; see also Sanders v. Lee Cty. Sch. Dist. No. 1, 669 F.3d 888, 894 (8th
Cir. 2012) (finding discriminatory constructive discharge claim supported
when employee reasonably believed no chance for fair treatment because
employer failed to respond to repeated requests for information about
reassignment); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617
(8th Cir. 2000) (affirming constructive discharge claim when employee
“essentially is left with no choice other than the termination of her
employment” due to employer’s failure to investigate or respond to
knowledge of harassment).
By contrast, in Alvarez v. Des Moines Bolt Supply, Inc., the Eighth
Circuit held the district court properly granted summary judgment on a
64
constructive discharge claim when an employee failed to notify the
employer of retaliatory harassment. 626 F.3d 410, 418 (8th Cir. 2010).
Veronica Alvarez notified her employer of inappropriate sexual conduct
by her coworker. Id. at 413–14. Her employer investigated the claims
and suspended the harassing coworker. Id. at 415. Other coworkers
then began to harass her in retaliation for her complaint. Id. However,
Alvarez failed to notify the employer about the postsuspension
harassment before she resigned. Id. The Eighth Circuit concluded
Alvarez had given her employer “no reasonable opportunity to remedy the
problem.” Id. at 419. Alvarez argued she should be excused from the
notice requirement because her prior complaint showed she “had no
chance for fair treatment if she complained again about harassment.” Id.
But “[p]art of an employee’s obligation to be reasonable,” the court held,
“is an obligation not to assume the worst, and not to jump to conclusions
too fast.” Id. (quoting Smith v. Goodyear Tire & Rubber Co., 895 F.2d
467, 473 (8th Cir. 1990)). Thus, her prior complaint “did not excuse
Alvarez from at least notifying DMB about the continued misconduct to
see how the company would respond.” Id.
Other cases have similarly held, unless the employee demonstrates
a reasonable belief there is no chance for fair treatment, he or she must
give the employer a chance to respond before resigning due to retaliatory
conduct. 16 See Phillips, 156 F.3d at 891 (determining employee not
16Ithas been suggested giving the employer a reasonable chance to resolve the
problem “is another effort to transplant” the Faragher–Ellerth defense. However, this
assertion overlooks that the Faragher–Ellerth defense has already been held to apply to
certain instances of constructive discharge. See Pa. State Police v. Suders, 542 U.S.
129, 141, 124 S. Ct. 2342, 2351 (2004) (stating absent a “tangible employment action,”
the defense “is available to the employer whose supervisors are charged with
harassment” resulting in constructive discharge); see also id. at 150–51 & n.10, 124
S. Ct. at 2356 & n.10 (noting Eighth Circuit and other caselaw analyzing whether
“employee’s decision to resign was reasonable under the circumstances” specifically
65
constructively discharged when manager retaliated against her by
speaking to her in “nasty” tone because she “fail[ed] to give Taco Bell a
fair opportunity to demonstrate that it had remedied the situation”);
Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247–48 (8th Cir. 1998)
(holding employee was not constructively discharged when she
complained about retaliation but failed to give the employer’s method for
solving the problem a chance); Tidwell, 93 F.3d at 496 (concluding
employee who quit the day after seeing allegedly retaliatory schedule
change not constructively discharged because he failed to give employer
“an opportunity to explain the situation or remedy it”). Such a rule
recognizes that “a reasonable waiting period is inversely related to the
severity of the situation,” Watson v. Heartland Health Labs., Inc., 790
F.3d 856, 864 (8th Cir. 2015), and there may be cases of severe
harassment or retaliation when it is reasonable for the employee to
resign immediately. It also acknowledges there may be times when the
_________________________
consider whether the employer was given “a chance to respond” (first quoting Suders v.
Easton, 325 F.3d 432, 462 (3d Cir. 2003); and then quoting Jaros v. LodgeNet, Entm’t
Corp., 294 F.3d 960, 965 (8th Cir. 2002))).
Principles of deterrence and avoidance undergird theories of employment
liability. See Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An
Affirmative Answer, 85 Iowa L. Rev. 1035, 1061 (2000) (“The purpose of Title VII is to
encourage anti-harassment policies, promote conciliation, and prevent harassment.”).
These principles are evident in both the doctrine of constructive discharge and the
Faragher–Ellerth defense. See Shari M. Goldsmith, The Supreme Court’s Suders Problem:
Wrong Question, Wrong Facts Determining Whether Constructive Discharge Is a Tangible
Employment Action, 6 U. Pa. J. Lab. & Emp. L. 817, 837–37 (2004) (“By emphasizing the
employee’s obligation to seek redress and the employer’s duty to avoid harm, the
dominant approach to constructive discharge goes to the heart of the Court’s
Ellerth/Faragher motivations and purpose.”).
If the victim could have avoided harm, no liability should be found
against the employer who had taken reasonable care, and if damages
could reasonably have been mitigated no award against a liable employer
should reward a plaintiff for what her own efforts could have avoided.
Faragher, 524 U.S. at 807, 118 S. Ct. at 2292.
66
employee can demonstrate a complaint would be fruitless, such as when
the prescribed method of recourse is through the alleged harasser or
when an employer has failed to respond to previous instances of
harassment. See, e.g., Van Meter Indus., 675 N.W.2d at 513 (“Sires was
referred to the individual who made the discriminatory promotion
decision to seek a resolution of her grievance.”).
“[A]ntidiscrimination policies are better served when the employee
and employer attack discrimination within their existing employment
relationship, rather than when the employee walks away and then later
litigates whether his employment situation was intolerable.” Poland v.
Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). We empathize with the
fact that in many cases coming forward with allegations of retaliation
may seem difficult. See Cathy Shuck, That’s It, I Quit: Returning to First
Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab.
L. 401, 429–30 (2002) (“The most frequently cited reason for failing to
report harassment is fear of negative outcomes—fear that the employee
will lose her job, not be believed, or ‘simply because it will not help [her]
situation[].’ ” (alterations in original) (quoting Theresa M. Beiner, Sex,
Science and Social Knowledge: The Implications of Social Science Research
on Imputing Liability to Employers for Sexual Harassment, 7 Wm. & Mary
J. Women & L. 273, 317 (2001))). But countervailing policy
considerations counsel us the burden placed on the employee is
reasonable. A preeminent treatise on employment law explains,
Courts generally require that the employee must give
higher levels of management the opportunity to correct an
adverse situation before quitting and claiming constructive
discharge. The evident purpose of the requirement is to
allow the employer as an entity—as opposed to, for example,
an individual (and perhaps aberrational) supervisor—to
redress the problem. However, to avoid a finding of
constructive discharge, the employer’s response must be
67
adequate; the employee need not suffer prolonged
harassment or discrimination.
Lindemann, at 21-44 to 21-45 (footnotes omitted). Moreover, an
employee can escape the requirement of coming forward by alleging there
would have been no “chance for fair treatment” in the face of a
complaint. Kimzey, 107 F.3d at 574.
Courts have consistently required “something more” for
constructive discharge claims than for ordinary discrimination or
retaliation. Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct.
2342, 2354 (2004). Constructive discharge occurs when the working
conditions deteriorate, as a result of discrimination or retaliation, “to the
point that they become ‘sufficiently extraordinary and egregious to
overcome the normal motivation of a competent, diligent, and reasonable
employee to remain on the job to earn a livelihood and to serve his or her
employer.’ ” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.
2000) (quoting Turner, 876 P.2d at 1026). These discriminatory or
retaliatory actions are best handled within the employment relationship.
Poland, 494 F.3d at 1184. The employee can recover for any additional
acts of harassment suffered until he resigns. See Green v. Brennan, 578
U.S. ___, ___, 136 S. Ct. 1769, 1782 (2016) (holding the claim of
constructive discharge does not accrue until an employee resigns).
The First, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits
consider whether the employee reasonably gave the employer an
opportunity to respond before claiming constructive discharge. See, e.g.,
EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 134 (1st Cir. 2014)
(holding employee failed to meet “reasonable person” element when her
“choice to resign was ‘grossly premature, as it was based entirely on [her]
own worst-case-scenario assumption’ ” (alteration in original));
68
Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 461 (8th Cir. 2011) (“We
have consistently recognized that an employee is not constructively
discharged if she ‘quits without giving [her] employer a reasonable
chance to work out a problem.’ ” (alteration in original) (quoting
Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir.
2007)); Aryain v. Wal-Mart Store Texas LP, 534 F.3d 473, 482 (5th Cir.
2008) (concluding employee could not recover because she “assumed the
worst and made no effort to allow Wal-Mart the opportunity to remedy
the problems she identified”); Barker v. YMCA of Racine, 18 F. App’x 394,
399 (7th Cir. 2001) (“Employees who quit without giving their employer a
reasonable chance to resolve a problem have not been constructively
discharged. Here, Ms. Barker did not try to resolve her work problems—
she merely walked away from her job without notice . . . .” (Citation
omitted.)); Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d 1351, 1357
(10th Cir. 1997) (holding no constructive discharge when plaintiffs only
waited brief time before resigning and “unreasonably refused to explore
any option short of resignation”); Kilgore v. Thompson & Brock Mgmt.,
Inc., 93 F.3d 752, 754 (11th Cir. 1996) (“A constructive discharge will
generally not be found if the employer is not given sufficient time to
remedy the situation.”); Bozé v. Branstetter, 912 F.2d 801, 804–05 (5th
Cir. 1990) (per curiam) (concluding employee was not constructively
discharged when he failed to pursue internal grievance procedures); see
also DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct.
App. 2013) (“Reasonableness requires an employee not to assume the
69
worst, and not to jump to conclusions too quickly.”). 17 As Lindemann
states,
The general rule is that a reasonable employee must remain
and fight discrimination on the job. Indeed, even when the
employee is faced with what he anticipates will be an
intolerable job environment, courts generally hold that the
employee should not quit precipitously, but rather should
remain to see whether those fears in fact do materialize.
Moreover, an employee cannot simply speculate that
intolerable conditions will develop, that an impending
discharge will occur, or that management will ignore the
problem.
Lindemann, at 21-41 to 21-42 (footnotes omitted).
Haskenhoff failed to establish as a matter of law that it would have
been fruitless to give HES management more time to respond. To
contrary, HES was actively engaged in responding to her complaint when
she quit. It was for the jury to decide, under proper instructions,
whether she jumped the gun, or rather, was constructively discharged. A
reasonable employee has “an obligation not to assume the worst and not
to jump to conclusions too quickly.” Brenneman, 507 F.3d at 1144
(quoting Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002)).
17In Missouri, a previous case held an employee did not have to allow a
reasonable opportunity to respond before claiming constructive discharge. See Pollock
v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 761, 765–66 (Mo. Ct. App. 1999).
That case has been undermined by later cases holding a constructive discharge does
not occur “without giving the employer a reasonable chance to resolve the problem.”
DeWalt, 398 S.W.3d at 501; see also Gamber v. Mo. Dep’t of Health & Senior Servs., 225
S.W.3d 470, 479 (Mo. Ct. App. 2007). Other states considering whether an employee
gave the employer a reasonable opportunity to respond include West Virginia,
Nebraska, and Minnesota. Waldron v. Lyman Lumber Co., No. A10–997, 2011 WL
206175, at *3 (Minn. Ct. App. Jan. 25, 2011); Gavin v. Rogers Tech. Servs., Inc., 755
N.W.2d 47, 56 (Neb. 2008); Anderson v. First Century Fed. Credit Union, 738 N.W.2d 40,
50–51 (S.D. 2007); Ford Motor Credit Co. v. W. Va. Human Rights Comm’n, 696 S.E.2d
282, 296 (W. Va. 2010) (per curiam); see also Charles v. Regents of N.M. State Univ., No.
28,825, 2010 WL 4703506, at *1 (N.M. Ct. App. Nov. 4, 2010) (noting that New Mexico
courts consider “whether an employer had an opportunity to or attempted to resolve the
problem” as a factor when evaluating constructive discharge).
70
“The proper focus is on whether the resignation was coerced, not whether
it was simply one rational option for the employee.” Haberer, 560
N.W.2d at 575 (quoting Turner, 876 P.2d at 1026).
Instruction No. 33 omitted language requested by HES and
required under our precedent stating the employee must give the
employer “a reasonable chance to resolve the problem.” Van Meter
Indus., 675 N.W.2d at 511. That omission constituted prejudicial error.
F. Whether the Expert Testimony of Dr. Fitzgerald Should
Have Been Excluded. Because the issue is likely to arise on remand, we
will discuss whether the district court abused its discretion by allowing
the testimony of Dr. Fitzgerald. Iowa Rule of Evidence 5.702 (2014)18
provides,
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.
HES argues expert testimony by Dr. Fitzgerald should not have been
admitted because it “invade[s] the province of the court to determine the
applicable law and to instruct the jury as to that law.” In re Det. of
Palmer, 691 N.W.2d 413, 419 (Iowa 2005) (quoting Torres v. County of
Oakland, 758 F.2d 147, 150 (6th Cir. 1985)), overruled on other grounds
by Alcala, 880 N.W.2d at 708 n.3. HES specifically objects to
Dr. Fitzgerald’s testifying to “the requirements and standards for an
18Iowa Rule of Evidence 5.702 has since been amended and now reads,
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue.
Iowa R. Evid. 5.702 (2017).
71
effective sexual harassment program and whether [HES]’s harassment
prevention and remediation program was consistent with those
standards.” HES also objects to Dr. Fitzgerald’s testimony about what a
reasonable company would do. Haskenhoff states that Dr. Fitzgerald’s
testimony provided helpful insight based on reasonable industry
standards and did not delve into instruction upon the law.
HES’s challenge to Dr. Fitzgerald’s testimony focused on the
linkage to erroneous jury instructions. Because we are reversing and
ordering a new trial based on the instructional errors, the admissibility of
her testimony will be in a somewhat different context on remand. We
review the general parameters of expert testimony.
“An opinion is not objectionable just because it embraces an
ultimate issue.” Iowa R. Evid. 5.704 (2017). We favor a “liberal view on
the admissibility of expert testimony.” Ranes, 778 N.W.2d at 685.
Whether an opinion should be excluded on the basis that it is couched in
legal terms “depends on ‘whether the terms used by the witness have a
separate, distinct and specialized meaning in the law different from that
present in the vernacular.’ ” In re Det. of Palmer, 691 N.W.2d at 420
(quoting Torres, 758 F.2d at 151). If so, the testimony should be
excluded. Id. For example, questions such as whether a defendant was
negligent or not negligent are improper because “[e]xperts are not to state
opinions as to legal standards.” Iowa R. Evid. [5.]704 committee cmt.
(1983).
The district court allowed Dr. Fitzgerald’s testimony, finding she
was “qualified as an expert on the subjects presented, as provided by
Iowa Rule of Evidence 5.702.” Dr. Fitzgerald testified she was hired for
two reasons: (1) to speak with Haskenhoff and evaluate whether she
displayed typical victim behavior in response to harassment, and (2) to
72
examine HES’s policies and procedures on sexual harassment and opine
whether they met accepted standards in the field of human resources.
She opined that Haskenhoff suffered from major depressive disorder and
posttraumatic stress disorder, described these conditions for the jury,
and stated why they may be caused by harassing behavior. She testified
about whether this was common for victims of harassment. She also
testified about what a “reasonable” company should do to prevent sexual
harassment according to human resources standards and whether HES
conformed to those standards. She skirted close to the line prohibiting
testimony on legal conclusions:
A. . . . [T]here’s a distinction between—that I should make
here—between violation of a company’s policy and violation
of the law.
Because they’re not—although there’s a great deal of
overlap, they’re not always exactly the same. So there are
things that can violate a company’s policy and not violate the
law. . . .
....
Q. Okay. “The standard of professional practice says
an investigation,” and then you set out steps a competent
investigator would take in order to conduct a real
investigation into this or any other matter. And what are
those steps? A. Well, I probably should have said “should”
instead of must, because it’s not the law or anything. But
the common practice recommendation . . . .
....
Q. And your testimony doesn’t purport to tell the
jurors what the law is proscribing sex harassment, does it?
A. No, I do not speak to legal issues.
Testimony that particular conduct violated the ICRA clearly would be an
inadmissible legal conclusion.
Expert testimony on the standard of care or standard of practice is
generally permitted in negligence actions. See Alcala, 880 N.W.2d at 709
(collecting cases requiring evidence of an employer’s standard of care and
73
its breach to recover under a negligent-training theory); Oswald v.
LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (noting that in a professional
negligence action, “[o]rdinarily, evidence of the applicable standard of
care—and its breach—must be furnished by an expert”); Brandt v.
Richter, 159 N.W.2d 471, 474 (Iowa 1968) (allowing testimony of farm
safety expert and discussing precedent rejecting argument such
testimony improperly altered the standard of care). But expert testimony
as to a legal conclusion is inadmissible in an ordinary negligence action.
See, e.g., Bell v. Cmty. Ambulance Serv. Agency, 579 N.W.2d 330, 338
(Iowa 1998) (affirming exclusion of opinion testimony of law enforcement
trainer that ambulance driver’s “actions were highly dangerous and likely
to cause injury”); Terrell v. Reinecker, 482 N.W.2d 428, 430 (Iowa 1992)
(holding it was reversible error to allow investigating police officer to
testify to the legal conclusion that plaintiff “failed to yield the right-of-
way”). We have not previously decided where the line is drawn in a
hostile-work-environment case. We conclude the district court did not
abuse its discretion in allowing Dr. Fitzgerald’s testimony on the record
made at the first trial.
IV. Disposition.
For those reasons, we reverse the district court’s ruling denying
HES’s motion for new trial, vacate the judgments for plaintiff, and
remand the case for a new trial consistent with this opinion.
DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED FOR NEW TRIAL.
Mansfield and Zager, JJ., join this opinion. Cady, C.J., files a
concurrence in part and dissent in part. Appel, J. files a separate
concurrence in part and dissent in part in which Wiggins and Hecht, JJ.,
join and Cady, C.J., joins in part.
74
#15–0574, Haskenhoff v. Homeland Energy Solutions, LLC
CADY, Chief Justice (concurring in part and dissenting in part).
I concur in the result reached in the opinion authored by Justice
Waterman. I agree the jury verdict must be reversed and a new trial
must be granted. I write separately because I do not agree with the
result or reasoning on all the issues addressed in the opinion by Justice
Waterman. As to those issues with which I disagree, I join in the opinion
by Justice Appel.
I. Direct Negligence Claim.
The two opinions in this case both hold that a plaintiff may pursue
a hostile-work-environment claim against an employer under the Iowa
Civil Rights Act based on supervisor harassment under a legal theory of
either vicarious liability or negligence. I concur. The two opinions also
hold an employer cannot assert the affirmative defense recognized for
vicarious liability claims in Faragher v. City of Boca Raton, 524 U.S. 775,
807–08, 118 S. Ct. 2275, 2292–93 (1998), and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 764–65, 118 S. Ct. 2257, 2270 (1998), when
defending a negligence action. To this, I also concur. The dispute,
however, is whether the district court erred in failing to instruct the jury
that the employee must prove the employer failed to take prompt and
appropriate remedial action to end the harassment. I conclude the
district court erred in failing to integrate this concept into its marshaling
instruction.
It is a general rule of law that an employer is liable for negligently
creating or continuing a hostile work environment. See Vance v. Ball
State Univ., 570 U.S ___, ___, 133 S. Ct. 2434, 2452 (2013). This is a
correct statement of law, but far too general to be used as a marshaling
instruction for a claim of employer negligence based on sexual
75
harassment by a supervisor. Negligence in continuing a hostile work
environment is required to be analyzed within the context of whether or
not the employer failed to take reasonable remedial action within a
reasonable period of time. Boyle v. Alum-Line, Inc., 710 N.W.2d 741,
747–48 (Iowa 2006). This was the essence of Haskenhoff’s claim based
on supervisor harassment. When the plaintiff asserts a vicarious liability
claim, the essential analysis is presented as an affirmative defense. See
Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d
733, 744 n.2 (Iowa 2003). When the plaintiff asserts a negligence claim,
the analysis comes within the reasonable care standard of negligence.
Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990). The
employee must establish that a reasonable employer knew or should
have known of the harassment and failed to take reasonable action to
stop it within a reasonable period of time. Id. The instruction in this
case totally failed to inform the jury of this essential analysis. As a
result, I would conclude the instruction materially misstated the law to
the detriment of the employer.
II. Retaliatory Discharge: Causation.
The two opinions disagree on the proper causation standard for
retaliatory discharge. I agree the causation standard under the Iowa
Civil Rights Act is the same for discrimination claims under Iowa Code
section 216.6(1)(a) (2011) as it is for retaliation claims under section
216.11(2). I also agree the standard is “a motivating factor.”
Nevertheless, the district court instruction modified this standard to only
require that the discrimination “played a part.” This change in the
standard was not justified.
In DeBoom v. Raining Rose, Inc., we explained that a motivating
factor must only have “played a part” and “need not have been the only
76
reason.” 772 N.W.2d 1, 13 (Iowa 2009). Yet, this was only done to aid
the jury in applying the standard, not to eliminate the central concept of
the standard that the protected activity be a motivating factor in the
employer’s decision. See id. A motivating factor is one that helped
compel the decision, and the “played a part” language exists only to
clarify that the motivating factor need not be the only factor. See id.; see
also Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005)
(“A motivating factor is a factor that weighs in the defendant’s decision to
take the action complained of—in other words, it is a consideration
present to his mind that favors, that pushes him toward, the action. It is
a, not necessarily the, reason that he takes the action. Its precise weight
in his decision is not important.” (Citations omitted.)). Therefore, I
concur in the opinion of Justice Appel to adopt the motivating factor
causation standard. However, I would find that the jury instruction in
this case failed to capture this standard.
III. Retaliatory Discharge: Adverse Employment Action.
Both opinions agree an adverse employment action is one that
“well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’ ” Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Both opinions also
agree the district court erred in defining an “adverse employment action”
by including examples of actions that would be adverse as a matter of
law. I concur on both of these issues. As Burlington Northern instructs,
and as reason dictates, an adverse action “depend[s] upon the particular
circumstances.” 548 U.S. at 69, 126 S. Ct. at 2415. The dispute,
therefore, is whether the error was harmless. It was not.
77
The court instructed the jury that one example of an adverse
action is a constructive discharge. A constructive discharge occurs
“when the employer deliberately makes an employee’s working conditions
so intolerable that the employee is forced into an involuntary
resignation.” Van Meter Indus. v. Mason City Human Rights Comm’n, 675
N.W.2d 503, 511 (Iowa 2004) (quoting First Judicial Dist. Dep’t of Corr.
Servs. v. Iowa Civil Rights Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)). We
recognize constructive discharge to discourage “employers’ ‘end runs’
around the law”—employers know they cannot retaliate by formally
terminating the employee, so they may attempt to force the employee to
quit. Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000).
Whether a discharge is formal or compelled, if it was motivated by the
employee’s engaging in a protected activity, it is still prohibited
retaliation.
But constructive discharge can also be a separate claim,
recognized in extreme cases of hostile work environments. In this type of
constructive discharge claim, the employee must show the environment
was so bad he or she had no choice but to quit. See Pa. State Police v.
Suders, 542 U.S. 129, 147–48, 124 S. Ct. 2342, 2354 (2004) (“A hostile-
environment constructive discharge claim entails something more: A
plaintiff who advances such a compound claim must show working
conditions so intolerable that a reasonable person would have felt
compelled to resign.”). An employee may want to prove constructive
discharge in a hostile-work-environment claim “because, as a general
rule, employees are entitled to back pay only when they have been
actually or constructively discharged.” Van Meter, 675 N.W.2d at 510–
11. In a hostile-environment constructive discharge claim, the
employer’s motivation for the constructive discharge is irrelevant. See id.
78
at 512. In a retaliatory discharge claim, the employee must show the
employer constructively discharged the employee “because” the employee
engaged in a protected activity. Iowa Code § 216.11(2). These two uses
of constructive discharge are related, but distinct.
Here, the jury was instructed Haskenhoff must show “she was
subjected to sexual harassment or retaliation[,] which[] made her believe
there was no chance for fair treatment at Homeland.” (Emphasis added.)
It is possible the jury was confused by these alternatives. Under these
instructions, a jury could find the sexual harassment was so severe and
pervasive that Haskenhoff had no choice but to quit. But, Haskenhoff
did not advance constructive discharge based on an extreme case of
hostile work environment. She used constructive discharge as an
example of retaliation. Even if the jury appropriately found constructive
discharge based on the severity of the hostile work environment, it does
not mean Homeland retaliated against Haskenhoff for reporting the
harassment. Therefore, the erroneous instruction on adverse action was
not harmless, and Homeland is entitled to reversal and a new trial.
IV. Constructive Discharge Instruction.
Both opinions agree that the district court did not err in the
constructive discharge instruction by explaining that an employer does
not need to want the employee to quit. Both opinions also agree the
district court erred by using a subjective standard in the constructive
discharge instruction. I concur on both of these issues. See Van Meter,
675 N.W.2d at 511–12. The dispute is whether the district court erred in
refusing to instruct the jury that the employee must give the employer a
reasonable chance to resolve the problem before it may find the working
conditions were so intolerable a reasonable employee would have been
forced into resignation. I conclude the district court did not err in
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refusing to give this instruction because it would not be a correct
statement of the law.
Constructive discharge is a concept of reasonableness. At times, it
would not be reasonable for an employee to quit without giving the
employer a chance to resolve the problem. See id. at 511. But, at other
times, it would not be reasonable to require an employee to remain in
intolerable working conditions. See id. Evidence indicates employees
often choose not to report discrimination in the workplace at the time it
occurs. See Brief of Amici Curiae NAACP Legal Defense & Educational
Fund, Inc. & The National Women’s Law Center in Support of Petitioner,
Green v. Brennan, 578 U.S. ___, 136 S. Ct. 1769 (2016) (No. 14–613),
2015 WL 4237675, at *14–15 & nn.10–11 (compiling studies). If the
unreported discrimination then turns the workplace intolerable, no
employee should reasonably be expected to remain on the job merely to
give the employer a chance to fix it. Consequently, I concur in the
opinion of Justice Appel that the district court did not err in refusing to
instruct the jury that an employer must have a reasonable time to fix the
problem.
V. Conclusion.
First, an employee may bring a direct-negligence action against an
employer based on a supervisor’s harassment. The employer does not
have the benefit of an affirmative defense when defending such a claim.
The employee must, however, show the employer knew or should have
known of the harassment and failed to take reasonable action to stop it
within a reasonable period of time. Second, in a claim for retaliatory
discharge, the employee must show the employee’s engaging in a
protected activity was a motivating factor in the employer’s decision to
take an adverse employment action. An adverse-employment action is
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one that would have deterred a reasonable employee from filing a
complaint. Actions are not ordinarily adverse as a matter of law, but
depend on the circumstances. An employer taking such an action need
not really want the employee to quit, but the employee’s decision to quit
must be objectively reasonable. A constructive discharge may occur if a
reasonable employee would find the working conditions intolerable, even
if that employee did not give the employer an opportunity to correct the
problem.
Because the jury instructions in this case did not accurately state
the above legal principles, I concur in part and with the result of the
opinion authored by Justice Waterman. I would remand for retrial on
both counts. I dissent in part from that opinion and join in part the
opinion authored by Justice Appel for the reasons expressed above.
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#15–0574, Haskenhoff v. Homeland Energy Solutions, LLC
APPEL, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part from the
majority/plurality opinion. In my view, only the instruction related to
material adverse action in connection with plaintiff’s retaliation claim is
flawed. I find the district court properly instructed the jury on all other
issues in this case.
I. Factual and Procedural Background.
Homeland Energy Solutions, LLC (HES) is an ethanol processing
facility in Lawler, Iowa, where it opened in February 2009. Tina
Haskenhoff began work at HES as a lab manager immediately upon its
opening.
Kevin Howes was Haskenhoff’s supervisor. Howes, along with
several of Haskenhoff’s coworkers, repeatedly made demeaning sexual
comments to Haskenhoff and engaged in other offensive behavior. This
included Howes frequently commenting on Haskenhoff’s breasts in front
of Haskenhoff and with other HES employees.
In November 2010, Haskenhoff informed Howes that she would be
absent from a meeting for a medical appointment. Howes asked about
the reason for the appointment and, upon learning that it was for a
mammogram, told Haskenhoff that she should have the breast exam in
the parking lot in order to earn some money.
Later that week, Haskenhoff told Chad Kuhlers about the offensive
behavior. Kuhlers was on the board of directors for HES. Kuhlers
immediately reported this information to HES’s president and CEO
Walter Wendland and to human resource manager Sarah Frein.
Howes learned that Haskenhoff had complained about him, and he
met with Haskenhoff to ask that she drop the complaint. Howes said
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that he was worried he was going to be fired. Wendland also met with
Haskenhoff about the complaint, stating the employees of HES were “like
family.” Haskenhoff reported later that she found Howes’s and
Wendland’s behaviors intimidating, and she feared the consequences to
her employment if she continued with the complaint. Haskenhoff agreed
to drop the complaint on the assumption that Howes’s behavior would
change.
The sexually offensive behavior, however, continued. Finally, on
August 8, 2011, Haskenhoff overheard Howes tell another employee that
Haskenhoff was marrying her fiancé for the money. This comment upset
Haskenhoff who told a coworker that Howes was “a fucking asshole.”
Haskenhoff left work in the middle of the day and sent an email to Howes
complaining about his comment.
On August 17, Haskenhoff filed a sexual-harassment complaint
against Howes with Frein. Several meetings occurred between the
participants thereafter. Finally, on August 30, Haskenhoff was asked to
meet with Wendland, David Finke—the CFO and head of human
resources—and Howes. At this meeting, Haskenhoff’s sexual-
harassment complaint was discussed. Additionally, Howes presented
Haskenhoff with a ninety-day “performance improvement plan” for using
vulgar language when referring to Howes and walking off the job on
August 8. The plan noted, “Failure to adhere to these
expectations/conditions will result in further disciplinary action up to
termination.”
Haskenhoff later said that after the August 30 meeting, she
realized HES would take no effective action against Howes and that if she
continued to complain about the harassment she would be fired. On
August 31, Haskenhoff confronted Finke and accused him of letting
83
Howes get away with the harassment and permitting Howes to retaliate
against her. Haskenhoff resigned.
On May 21, 2012, Haskenhoff brought charges of employment
discrimination at the Iowa Civil Rights Commission. The commission
gave Haskenhoff a release to bring suit, after which she brought suit in
district court for sexual harassment and retaliation under the Iowa Civil
Rights Act (ICRA). The jury found in favor of Haskenhoff and awarded
her damages. HES appealed, and we retained the appeal.
II. Relationship Between State and Federal Civil Rights
Statutes.
A. Introduction. Before analyzing the substantive issues in this
case, it is important to stress that the ICRA is not simply a knockoff of
the Federal Civil Rights Act. We have sometimes loosely said that the
ICRA was “modeled after” or mirrors Title VII. See, e.g., Estate of Harris
v. Papa John’s Pizza, 679 N.W.2d 673, 677–78 (Iowa 2004); Pecenka v.
Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003). These
observations have validity only in the most general sense, can be
materially misleading, and in any case do not provide meaningful
guidance in the resolution of any concrete controversy under the ICRA.
First, the modeled-after or mirror theory generally overlooks the
fact that the ICRA, as well as Title VII, were preceded by more than
twenty state statutes. See Andrea Catania, State Employment
Discrimination Remedies and Pendent Jurisdiction Under Title VII: Access
to Federal Courts, 32 Am. U. L. Rev. 777, 782 n.24 (1983) [hereinafter
Catania]. Beginning in the 1940s, states passed civil rights statutes that
included many of the features now embraced in Title VII. Alex Elson &
Leonard Schanfield, Local Regulation of Discriminatory Employment
Practices, 56 Yale L.J. 431, 434 (1947). There is a rich body of
84
commentary on these state laws that seems to have been overlooked in
our cases suggesting that the ICRA mirrors or is modeled after Title VII. 19
In fact, both the ICRA and Title VII drew from this preexisting body
of state law. See Pippen v. State, 854 N.W.2d 1, 30 (Iowa 2014). In an
article that appeared in the Iowa Law Review in the year that the ICRA
was passed, Professor Arthur Bonfield, a leading proponent of the
legislation, cited the experience in other states in support of the
legislation. Arthur Earl Bonfield, State Civil Rights Statutes: Some
Proposals, 49 Iowa L. Rev. 1067, 1082 & n.65 (1964).
Thus, the ICRA and Title VII both mirrored and were modeled after
preexisting state law in the same general sense that the ICRA is modeled
after or mirrors federal law. For example, the “because of” causation
language in the ICRA and Title VII, which is at the heart of one of the
issues in this litigation, was used in state civil rights statutes that
predate them. 20 Similarly, retaliation provisions in state civil rights laws
19See, e.g., Arthur E. Bonfield, The Substance of American Fair Employment
Practices Legislation I: Employers, 61 Nw. U. L. Rev. 907, 909–10 & n.6 (1967); Elmer A.
Carter, Practical Considerations of Anti-Discrimination Legislation—Experience Under the
New York Law Against Discrimination, 40 Cornell L.Q. 40, 40 (1954); Richard B. Dyson
& Elizabeth D. Dyson, Commission Enforcement of State Laws Against Discrimination: A
Comparative Analysis of the Kansas Act, 14 U. Kan. L. Rev. 29, 29–31 (1965); Herbert
Hill, Twenty Years of State Fair Employment Practice Commissions: A Critical Analysis
with Recommendations, 14 Buff. L. Rev. 22, 22 (1964); Robert G. Meiners, Fair
Employment Practices Legislation, 62 Dick. L. Rev. 31, 31 & n.1, 33 (1957); Arnold H.
Sutin, The Experience of State Fair Employment Commissions: A Comparative Study, 18
Vand. L. Rev. 965, 965 & n.1 (1965).
20The because-of causation language in Title VII’s discrimination and retaliation
provisions is also found in earlier state antidiscrimination statutes. See, e.g., Wash.
Rev. Code § 49.60.030 (1957) (“The right to be free from discrimination because of race,
creed, color, or national origin is recognized as and declared to be a civil right.”); Int’l
Bhd. of Elec. Workers Local 35 v. Comm’n on Civil Rights, 102 A.2d 366, 367 n.1 (Conn.
1953) (quoting the 1949 Connecticut Fair Employment Practices Act that “[i]t shall be
an unfair employment practice . . . (c) for a labor organization, because of the race,
color, religious creed, national origin or ancestry of any individual to exclude from full
membership rights or to expel from its membership such individual or to discriminate
in any way against any of its members”).
85
predated the retaliation provision in the ICRA and Title VII. See, e.g.,
Wash. Rev. Code § 49.60.200 (1957); Wis. Stat. § 111.32(5)(b)(3) (1961);
Morroe Berger, New York State Law Against Discrimination: Operation
and Administration, 35 Cornell L. Rev. 747, 751 (1950) (describing the
contents of New York’s 1945 law). In this case, the relevant provisions of
the ICRA and Title VII are, as a matter of historical fact, modeled after or
mirror preexisting state law. Alex Long, State Anti-Discrimination Law as
Model for Amending the Americans with Disabilities Act, 65 U. Pitt. L. Rev.
597, 600 (2004) (stating “Congress modeled Title VII . . . on existing state
anti-discrimination laws”).
Second, the modeled-after or mirrors theory particularly overlooks
the fact that Iowa had a preexisting civil rights statute before Title VII
was enacted. Iowa’s first civil rights act was enacted in 1883 shortly
after the United States Supreme Court, in an appalling decision
corrected only decades later, held that a key portion of the Federal Civil
Rights Act of 1871—prohibiting discrimination by private persons—was
unconstitutional. See United States v. Harris, 106 U.S. 629, 644, 1 S. Ct.
601, 613 (1883), abrogated by Griffin v. Breckenridge, 403 U.S. 88, 104,
91 S. Ct. 1790, 1799 (1971). Then, in 1963, fully a year prior to the
enactment of Title VII, Iowa joined twenty-six states in enacting a statute
prohibiting discrimination in employment. That statute declared it
unlawful “for any person or employer to discriminate in the employment
of individuals because of race, religion, color, national origin, or
ancestry.” 1963 Iowa Acts ch. 330, § 1 (codified at Iowa Code § 105A.7
(1966)). Thus, the because-of causation language that later appeared in
the ICRA was based on language in an Iowa statute that predated Title
VII which was modeled after civil rights legislation in other states. It is
simply wrong to suggest that the because-of language in the ICRA was
86
modeled after Title VII. A more accurate statement would be that the
because-of language in Title VII was modeled after state law precedents,
including the ICRA of 1963.
Third, while the texts of the two statutes are sometimes similar,
they are often quite dissimilar. There are material differences between
the two statutes in scope, structure, and remedy. Thus, a generalized
statement that the ICRA is modeled on, similar to, or mirrors Title VII
even from a textual viewpoint is often not true. 21 Further, as will be
shown below, the legislative history behind Title VII is often quite
distinctive and plainly inapplicable to any construction of the ICRA.
Instead of employing a generalized and often inaccurate slogan, in
interpreting the ICRA we must engage in serious, provision-by-provision
analysis, recognizing similarities when they appear, but also honoring
the differences.
B. Legislative Direction that the ICRA “Shall Be Construed
Broadly to Meet Its Purposes.” As all judges, lawyers, and litigants
know, the ICRA has many ambiguities and gaps which courts are called
upon to resolve and fill in the context of adversarial litigation. While the
Iowa legislature has advanced a statute with ambiguities and gaps, it has
provided courts with an instruction on how to approach it. Specifically,
the legislature has directed that the ICRA “shall be construed broadly to
21The same historical mistake is often made with respect to the Iowa
Constitution, which some claim is modeled after the United States Constitution. In
fact, the United States Constitution, and every provision of its Bill of Rights, was
derived from provisions of state constitutions that existed before 1789, especially the
Virginia Declaration of Rights and the Massachusetts Constitution. The documents
published in Paris by Benjamin Franklin, hailed to be the first written constitutions,
were state constitutions, not the later and largely derivative United States Constitution.
See Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the
Wider World in the American Revolution, 47 Suffolk U. L. Rev. 759, 802 & n.222 (2014).
87
effectuate its purposes.” Iowa Code § 216.18(1) (2011). As we pointed
out in Pippen, there is no comparable language in the federal statute.
854 N.W.2d at 28. Iowa Code section 216.18(1) is an example of a
provision of the ICRA that is not modeled after and does not mirror Title
VII.
Our better reasoned cases show that this marked textual difference
is consequential. In Pippen, we pointed out that a number of other state
supreme courts have construed similar statutory language in civil rights
acts to require the “widest constitutional application.” Id. (quoting Fair
Emp’t Practices Comm’n v. Rush-Presbyterian-St. Luke’s Med. Ctr., 354
N.E.2d 596, 600 (Ill. App. Ct. 1976) (holding that a wide application was
required given the legislative intent for the remedial provisions of the
act)); see also Wondzell v. Alaska Wood Prods., Inc., 601 P.2d 584, 585
(Alaska 1979) (finding Alaska civil rights act not simply modeled after
federal law, but “intended to be more broadly interpreted than federal law
to further the goal of eradication of discrimination . . . [as shown by the]
legislature’s intent ‘to put as many “teeth” into the statute as possible’ ”
(quoting McLean v. State, 583 P.2d 867, 869 (Alaska 1978) (citations
omitted))); Marquis v. City of Spokane, 922 P.2d 43, 49–50 (Wash. 1996)
(en banc) (explicitly recognizing legislative directive to construe
Washington civil rights statute liberally); Allison v. Hous. Auth. of Seattle,
821 P.2d 34, 38 (Wash. 1981) (en banc) (“Title VII differs from
[Washington civil rights law] in that Title VII does not contain a provision
which requires liberal construction for the accomplishment of its
purposes.”); Lodis v. Corbis Holdings, Inc., 292 P.3d 779, 787 (Wash. Ct.
App. 2013) (Adopting federal precedent would “impermissibly narrow the
protective language and purposes of [Washington’s civil rights law],
contrary to the liberal construction mandate of the act.”).
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A few state civil rights statutes passed prior to the ICRA also
contained provisions directing courts to construe the statute broadly.
See, e.g., Del. Code Ann. tit. 6, § 4502 (1963) (“This chapter shall be
liberally construed to the end that the rights herein provided for all
people without regard to race, creed, color or national origin may be
effectively safeguarded.”); Wash. Rev. Code § 49.60.020 (1957) (“The
provisions of this chapter shall be construed liberally for the
accomplishment of the purposes thereof.”); W. Va. Code § 5-11-265(161)
(1961) (“The provisions of this article shall be liberally construed to
accomplish its objectives and purposes.”); Wis. Stat. § 111.31 (1961) (“All
the provisions of this subchapter shall be liberally construed for the
accomplishment of this purpose.”).
Plainly, a narrow construction of the ICRA would be in defiance of
the legislative mandate to broadly construe the statute to effectuate its
purposes and would amount to a judicial recrafting of the statute. As we
stated in Pippen, an Iowa court “must keep in mind the legislative
direction of broadly interpreting the Act when choosing among plausible
legal alternatives.” 854 N.W.2d at 28.
The legislative direction that we broadly interpret the ICRA makes
federal authority that chooses narrow constructions among available
options suspect. Federal courts, and particularly the United States
Supreme Court, have demonstrated a marked tendency to embrace a
narrow construction of federal civil rights statutes in the face of more
generous plausible alternatives. As a result, Congress has repeatedly
overridden by statute narrow interpretations of federal civil rights laws.
Seven important United States Supreme Court civil rights cases
overridden by Congress include General Electric Co. v. Gilbert, 429 U.S.
125, 134, 97 S. Ct. 401, 407 (1976) (holding discrimination based on
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pregnancy was not sex discrimination), superseded by statute, Pregnancy
Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2016 (codified
as amended at 42 U.S.C. § 2000e(k) (2012)); Price Waterhouse v. Hopkins,
490 U.S. 228, 239–40, 109 S. Ct. 1775, 1785 (1989) (interpreting
“because of” in the context of discrimination), superseded by statute,
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as
amended at 42 U.S.C. § 2002e–2(m)); Wards Cove Packing Co. v. Atonio,
490 U.S. 642, 656–57, 109 S. Ct. 2115, 2124–25 (1989) (requiring proof
of discriminatory intent in disparate impact cases), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071
(codified as amended at 42 U.S.C. § 2000e–2(k)); Patterson v. McLean
Credit Union, 491 U.S. 164, 176–77 109 S. Ct. 2363, 2372 (1989)
(holding that conduct occurring after the formation of an employment
contract could not be racial discrimination under § 1981), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071
(codified as amended at 42 U.S.C. § 1981(b)); Sutton v. United Airlines,
Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999) (announcing a
restrictive interpretation of “impairment” and “disability” under the ADA),
superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110–
325, 112 Stat. 3553 (codified as amended at 42 U.S.C. § 12102(3));
Toyota Motor Mfg. of Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S. Ct.
681, 690 (2002) (narrowing scope of protection under the ADA),
superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110–
325, 112 Stat. 3553 (codified as amended at 42 U.S.C. § 12102(3)); and
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621, 127 S. Ct.
2162, 2165 (2007) (holding statute of limitations for discriminatory pay
practices begins when initial pay decision was made), superseded by
statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat.
90
5 (codified as amended at 42 U.S.C. § 2000e–5(e)(3)). See, e.g., Sandra F.
Sperino, Diminishing Deference: Learning Lessons from Recent
Congressional Rejection of the Supreme Court’s Interpretation of
Discrimination Statutes, 33 Rutgers L. Rec. 40, 40 (2009) (stating “blind
adherence to federal interpretation of discrimination principles on state
employment discrimination claims is not only often inappropriate, but
also has seriously impacted the development of employment
discrimination law”); Sandra F. Sperino, Revitalizing State Employment
Discrimination Law, 20 Geo. Mason L. Rev. 545, 583 (2013) [hereinafter
Sperino, Revitalizing] (“[T]he federal courts have repeatedly interpreted
federal law narrowly in ways that drew a response from Congress.”).
Uncritical incorporation of the principles of these now superseded cases
under the ICRA would run counter to the Iowa legislature’s directive that
the ICRA be “broadly interpreted to effectuate its purposes.” Iowa Code
§ 216.18(1); see also Goodpaster v. Schwan’s Home Servs., Inc., 849
N.W.2d 1, 9–10 (Iowa 2014).
And these are only the cases that Congress managed to override.
Whenever a highly divided United States Supreme Court chooses a
narrow interpretive path under federal civil rights statutes, we must
consider whether the dissenting opinion is more consistent with the
legislative direction that the ICRA be broadly interpreted to achieve its
goals. 22
22It is sometimes asserted that we should follow federal precedent under Title VII
to foster uniformity. When Congress enacted Title VII in 1964, approximately one-half
of the states had some kind of antidiscrimination statute. See Susan Elizabeth Powley,
Exploring a Second Level of Parity: Suggestions for Developing an Analytical Framework
for Forum Selection in Employment Discrimination Litigation, 44 Vand. L. Rev. 641, 667 &
n.184 (1991). Congress expressly considered the question of requiring uniformity when
it declared that Title VII does not preempt state law. See 42 U.S.C. § 2000h-4;
Alexander v. Gardner-Denver Co., 415 U.S. 36, 48–49, 94 S. Ct. 1011, 1019–20 (1974)
(“[T]he legislative history of Title VII manifests a congressional intent to allow an
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The directive to construe the ICRA broadly has had impact. For
instance, in Goodpaster, we considered whether an intermittent or
episodic impairment—multiple sclerosis—fell within the definition of
“disability” under the ICRA. 849 N.W.2d at 6. We emphasized section
216.8(1)’s instruction to interpret the ICRA broadly in reaching the result
that multiple sclerosis could be a disability under the ICRA. Id. at 9–10,
18. We noted that this difference with federal law rendered many federal
cases inapposite in interpreting the ICRA. Id. at 10. We cited several of
our cases in which section 216.18(1) had a “substantive impact on the
outcome.” Id.; see, e.g., Polk Cty. Secondary Rds. v. Iowa Civil Rights
Comm’n, 468 N.W.2d 811, 815–16 (Iowa 1991).
In construing a provision of the ICRA, the legislative direction to
broadly construe the statute to effectuate its purposes must be
recognized. To ignore this provision is to rewrite the statute to achieve
desired policy results.
C. Textual Differences Between the ICRA and Federal Civil
Rights Statutes. When there are textual differences between the ICRA
and federal civil rights statutes, we must be attentive to those
differences. When there are textual differences, the modeled-after or
mirror declarations have no application, and indeed an opposite
_________________________
individual to pursue independently his rights under both Title VII and other applicable
state and federal statutes. The clear inference is that Title VII was designed to
supplement rather than supplant, existing laws and institutions relating to employment
discrimination.”) Further, it is doubtful that uniformity will be advanced by
incorporation of federal law. The United States Supreme Court has resolved only a
handful of cases in the civil rights area over the years. The literature is full of
documentation of various splits in the federal circuits on numerous questions that the
Supreme Court has not resolved. The stability of incorporating a handful of Supreme
Court precedents is outweighed by dragging into Iowa law the many controversies in the
federal caselaw that have not been resolved.
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conclusion may be more appropriate, namely, that differences in text are
deliberate and substantive.
A good example of the need to recognize textual differences
between the ICRA and federal civil rights law is Hulme v. Barrett
(Hulme I), 449 N.W.2d 629 (1990). In Hulme I, we considered whether
the provision of the Federal Age Discrimination in Employment Act
(ADEA) of 1967 limiting coverage to those forty years of age or older
applied under the ICRA. Id. at 631. The district court, apparently
following a version of the modeled-after or mirror theory, held that the
limitation in the Federal ADEA also applied under the ICRA. Id. at 631.
We reversed. Id. at 632. We noted that while the federal statute
had language explicitly limiting claims to persons above the age of forty,
the ICRA had no such textual limitation. Id. at 631–32. In Hulme I, we
correctly declined to follow federal precedent because the text of our
statute was not modeled after and did not mirror federal law. As will be
seen below, there are important textual and legislative history differences
between the ICRA and Title VII as it relates to the causation element in
retaliation claims.
D. Structural Differences Between the ICRA and Federal Civil
Rights Statutes. As pointed out in Pippen, there is also an important
structural difference between the ICRA and various civil rights statutes.
See 854 N.W.2d at 28. The ICRA is a unified statute. In contrast, the
federal civil rights regime is more fragmented. See Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 623; Civil Rights Act of 1964, 42
U.S.C. § 2000e–2 (Title VII); American with Disabilities Act of 1990, 42
U.S.C. § 12112. Thus, while the federal courts have developed different
tests for different causes of action under different statutes, the Iowa
statute generally calls out for a singular, unified approach. See, e.g.,
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Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–78, 129 S. Ct. 2343,
2350–51 (2009) (holding that Title VII and ADEA causation standards are
different). It would be very difficult to come to the same conclusion
under the ICRA, a unified statute with one statutory provision
establishing what constitutes status-based discrimination. The fractured
nature of federal law compared to the unified approach of the ICRA
makes wholesale importation of federal law questionable. See Sperino,
Revitalizing, 20 Geo. Mason L. Rev. at 560 (contrasting unified state
regimes with fractured federal law).
E. Interpretation of Gaps and Ambiguous Phrases. Civil rights
statutes contain many notoriously open-ended or ambiguous phrases
that cry out for interpretation. For ambiguous phrases, there is rarely
only one plausible interpretation. See Hack v. President & Fellows of
Yale Coll., 237 F.3d 81, 95 (2d Cir. 2000) (“The Act’s ambiguous language
. . . has allowed a number of contradictory standards to emerge.”). For
example, the phrase “because of” sex, race, and other classifications has
given rise to a wide number of potential interpretations. See David S.
Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual
Harassment Law, 150 U. Pa. L. Rev. 1697, 1708–09 (2002) [hereinafter
Schwartz] (noting different approaches to ambiguous terms). There is
simply no requirement that in construing ambiguous phrases we should
follow the lead of the United States Supreme Court rather than that of
another state court or where our own judgment would lead us.
Further, many legal structures developed by the United States
Supreme Court are not found in the statutory text of Title VII and have
been fashioned by the Supreme Court based on its policy perceptions.
For example, the requirement that harassment be “pervasive and severe”
in order to amount to actionable discrimination does not appear in the
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text of Title VII. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67,
106 S. Ct. 2399, 2405–06 (1986). It is a judicial construct created by the
United States Supreme Court. The complex architecture surrounding
disparate impact also has no clear textual foundation. Cf. Wards Cove,
490 U.S. at 656–58, 109 S. Ct. at 2124–25; Watson v. Ft. Worth Bank &
Tr., 487 U.S. 977, 986–89, 108 S. Ct. 2777, 2784–86 (1988); Griggs v.
Duke Power Co., 401 U.S. 424, 431–32, 91 S. Ct. 849, 853–54 (1970).
The burden-shifting approach to causation found in various United
States Supreme Court cases is without explicit textual support. See
Desert Palace, Inc. v. Costa, 539 U.S. 90, 93–94, 123 S. Ct. 2148, 2150–
51 (2003); Price Waterhouse, 490 U.S. at 244–45, 109 S. Ct. at 1787–88;
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817,
1824 (1973). The notion that an “adverse action” is required to support a
retaliation claim is not mentioned in Title VII. Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53, 56–57, 126 S. Ct. 2405, 2408–09 (2006). And,
the Faragher–Ellerth defense developed by the Supreme Court for cases
involving vicarious liability of supervisors when there is no tangible
adverse employment action has no explicit textual support in Title VII,
but was crafted primarily as a result of the policy considerations of the
Court. See Faragher v. City of Boca Raton, 524 U.S. 775, 804–05, 118
S. Ct. 2275, 2291–92 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765, 118 S. Ct. 2257, 2270 (1998).
These judicially developed constructs are not textually guided, but
instead reflect the views of a majority of the United States Supreme
Court on the subject of discrimination. If one believes, for example, that
discrimination in the workplace is a relatively rare occurrence, the
development of demanding judicial standards through interpretation or
construction may seem to make sense. On the other hand, if one
95
believes that discrimination is widespread and intractable, a different
result might occur. Sperino, Revitalizing, 20 Geo. Mason L. Rev. at 575–
77.
Because of the lack of textual support, it is not surprising that a
number of courts have declined to create a Faragher–Ellerth defense for
cases involving vicarious liability under state civil rights acts. See, e.g.,
Myrick v. GTE Main St. Inc., 73 F. Supp. 2d 94, 98 (D. Mass. 1999)
(declining to apply Faragher–Ellerth defense on state law grounds);
Chambers v. Trettco, Inc., 614 N.W.2d 910, 918 (Mich. 1990) (rejecting
Faragher–Ellerth under Michigan law); Pollock v. Wetterau Food
Distribution Grp., 11 S.W.3d 754, 767 (Mo. Ct. App. 1999) (refusing to
add words to Missouri human rights statute to establish a Faragher–
Ellerth defense).
In making choices regarding ambiguous phrases and determining
whether and how to fill legislative gaps, Iowa courts are free to depart
from what are often very narrow and cramped approaches of federal
law. 23 For example, in Goodpaster, we rejected United States Supreme
Court precedent that, contrary to the ICRA, declared the Americans with
Disabilities Act must be “interpreted strictly to create a demanding
standard for qualifying as disabled.” 849 N.W.2d at 10 (quoting Toyota,
534 U.S. at 197, 122 S. Ct. at 691); see Sutton, 527 U.S. at 488, 119
S. Ct. at 2149. The Supreme Court’s determination to strictly interpret
23No one would suggest, for instance, that if Iowa were to adopt a statute
modeled after the statute of another state, we would be compelled to follow the
interpretations of the supreme court of the other state in interpretation of Iowa law.
See Crosby v. Alton Ochsner Med. Found., 276 So. 2d 661, 665 (Miss. 1973) (holding
that when Mississippi adopted a statute modeled after a Georgia enactment, decisions
of the Georgia courts did not bind Mississippi courts in interpretation of the statute).
96
the statute flies in the face of the Iowa legislature’s direction to construe
the statute broadly. See Iowa Code § 216.18(1). 24
Thus, in order to choose the best interpretive option on a statutory
issue under the ICRA, it is not enough to simply cut and paste a version
of federal law into the Northwest Reporter and call it a day. 25 We do not
follow federal constitutional interpretations lockstep, even of parallel
provisions, and there is no reason to follow federal statutory
interpretation in a lockstep fashion in similar statutes. 26 Instead,
24For an interesting discussion, see Tyler S. Smith, Note, A Mid-Life Crisis in the
Interpretation of the Iowa Civil Rights Act of 1965: How Should State Courts Interpret
Original State Antidiscrimination Statutes After Federal Counterpart Statutes Are
Amended?, 64 Drake L. Rev. 1117, 1141–49 (2016).
25Such a reaction has been referred to as a “Pavlovian response” to federal
opinions. Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 410 (W. Va. 2000)
(McGraw, J., concurring in part and dissenting in part).
26Many state civil rights cases have declined to follow federal authorities. See,
e.g., Smith v. Anchorage Sch. Dist., 240 P.2d 834, 842 (Alaska 2010) (rejecting Supreme
Court but-for test for age discrimination under unified Alaska statute); Reid v. Google,
Inc., 235 P.3d 988, 991–92 (Cal. 2010) (departing from “stray remarks” precedent of
Supreme Court); Williams v. Dep’t of Pub. Safety, 369 P.3d 760, 774 (Colo. 2015)
(rejecting Federal Title VII precedent that front pay is an available remedy under
Colorado antidiscrimination act); Vollemans v. Town of Wallingford, 928 A.2d 586, 602
(Conn. App. Ct. 2007) (rejecting the Ricks–Chardon rule for filing requirements in
discriminatory discharge cases under Connecticut law), aff’d, 956 A.2d 579 (2008)
(adopting fully the “thoughtful and comprehensive” opinion of the appellate court);
Sangamon Cty. Sheriff’s Dep’t v. Ill. Human Rights Comm’n, 908 N.E.2d 39, 45–47 (Ill.
2009) (rejecting Supreme Court precedent in holding employer strictly liable for sexual
harassment of a supervisor when supervisor had no authority to affect terms and
conditions of employment); Loras Coll. v. Iowa Civil Rights Comm’n, 285 N.W.2d 143,
147 (Iowa 1979) (“[W]e are not bound by federal cases construing a federal statute when
we are called upon to construe our own Civil Rights Act.”); Ruffin Hotel Corp. of Md. v.
Gasper, 17 A.2d 676, 685 (Md. 2011) (finding that Title VII precedent “does not comport
with Maryland law”); City of New Bedford v. Mass. Comm’n Against Discrimination, 799
N.E.2d 578, 589 (Mass. 2003) (noting the differences between Massachusetts disability
act and federal counterpart in definition of “major life activity”); Dahill v. Police Dep’t of
Boston, 748 N.E.2d 956 (Mass. 2001) (rejecting Sutton); Coll. Town, Div. of Interco, Inc. v.
Mass. Comm’n Against Discrimination, 508 N.E.2d 587, 592 (Mass. 1987) (rejecting
Faragher–Ellerth under Massachusetts statute); Chambers v. Tretteo, Inc., 614 N.W.2d
910, 918 (Mich. 2000) (declining to follow Faragher–Ellerth); Van Den Berk v. Mo.
Comm’n on Human Rights, 26 S.W.3d 406, 411 (Mo. Ct. App. 2000) (announcing that
Missouri cases will depart from federal civil rights law “where that law is not in accord
with the thrust of our state’s statute” (quoting Wentz v. Industrial Automation, 847
97
consistent with preservation principles, 27 we must first identify potential
interpretive options that are available to the court. Ordinarily, this
involves a survey of state as well as federal law. Once the potential
alternative approaches are identified, we should proceed to select the
interpretive option that we find most consistent with the ICRA, its
underlying purposes, and the legislative direction that the text be
“broadly construed to effectuate its purposes.” Iowa Code § 216.18(1).
We may, of course, rely on persuasive federal precedents, especially
when the language of Title VII and the ICRA are, in fact, similar, the
federal interpretation is consistent with the legislature’s directive of
broad interpretation, and the rationale of the federal caselaw persuades
us that the best choice has been made. But we must look for persuasive
reasoning that fits the Iowa statute. And, we should not mask our policy
_________________________
S.W.2d 877, 879 (Mo. Ct. App. 1992))); Laudert v. Richland Cty. Sheriff’s Dep’t, 7 P.3d
386, 397 (Mont. 2000) (rejecting federal definition of prevailing plaintiff because such a
reading would not further purpose of Montana Human Rights Act); Alexander v. Seton
Hall Univ., 204 N.J. 219, 234-36, 8 A.3d 198 (N.J. 2010) (declining to follow crabbed
framework of analysis of statute of limitations under Ledbetter); L.W. ex rel. L.G. v. Toms
River Reg’l Sch. Bd. of Educ., 915 A.2d 535, 549 (N.J. 2007) (rejecting Title IX deliberate
indifference standard in favor of analogous New Jersey precedent); Lehrmann v. Toys ‘R’
Us, Inc., 626 A.2d 445 (N.J. 1993) (declining to follow Meritor majority and adopting
position of concurrence); Saffos v. Avaya Inc., 16 A.3d 1076, 1095 (N.J. Super. Ct. App.
Div. 2011) (rejecting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S. Ct. 1662
(2010), observing that New Jersey courts are not reluctant to depart from federal
precedent in appropriate circumstances); Bennett v. Health Mgmt. Sys., Inc., 936
N.Y.S.2d 112, 116 (App. Div. 2011) (observing that the New York City civil rights act has
“uniquely broad and remedial purposes” which go beyond its state and federal
counterparts); Vitale v. Rosina Food Prod., Inc., 727 N.Y.S. 215, 217 (App. Div. 2001)
(differentiating state from federal sexual harassment law); Coryell v. Bank One Trust Co.
N.A., 803 N.E.2d 781, 785–86 (Ohio 2004) (declining to follow federal precedent in age
discrimination matter); Allison, 821 P.2d at 35 (departing from federal but-for causation
for a retaliation claim under the Washington Human Rights Act); Putcino v. Fed. Express
Corp., 9 P.3d 787 (Wash. 1990) (departing from federal precedent in defining
“disability”); see generally Alex B. Long, Viva State Employment Law! State Law
Retaliation Claims in a Post-Crawford/Burlington Northern World, 77 Tenn. L. Rev. 253,
268–76 (2010); Sperino, Revitalizing, 20 Geo. Mason L. Rev. at 545.
27See Pippen, 854 N.W.2d at 31.
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choices in resolving ambiguities and filling statutory gaps through
language suggesting that the choice was somehow inexorable or
determined with a mathematical certainty that may be found in the
scientific world but evades the law. We are in the business of judging,
not calculating.
F. Independent Interpretation of ICRA Consistent with
Federalism and Congressional Intent Behind Title VII. When
Congress enacted Title VII, approximately one-half of the states had civil
rights statutes already. Catania, 32 Am. U. L. Rev. at 782 n.24.
Congress expressly determined not to preempt state law. 42 U.S.C.
§ 2000h-4. As noted by the United States Supreme Court, Congress
intended Title VII “to supplement, rather than supplant, existing laws
and institutions related to employment discrimination.” See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47–48, 94 S. Ct. 1011, 1019–20 (1974)
(finding legislative history showed clear congressional intent to allow an
individual to pursue state law remedies simultaneously with Title VII).
Congress plainly did not intend to preempt state civil rights laws. Id. As
noted by Professor Bonfield, “the federal act . . . recognizes the continued
effectiveness of state fair employment laws and provides that they will
retain a vital and perhaps dominant role in this area.” Arthur E.
Bonfield, The Substance of American Fair Employment Practices
Legislation I: Employers, 61 Nw. U. L. Rev. 907, 919 (1967).
A conclusion that state courts should generally follow the twists
and turns in federal law would be ironic in light of the congressional
intent to allow, if not encourage, state experimentation.
G. A Note on Law of the Case, Stare Decisis, and Dictum. If
one looks through our ICRA cases, federal cases are often simply cited
for propositions of law without substantive discussion. Often times in
99
this setting, we were simply restating legal principles that the parties
were not contesting in the case. When a legal principle is embraced by
the parties by agreement and is not contested on appeal, the court’s
subsequent recitation of the legal principle is not a holding in the case
that was a product of an adversary proceeding. See Berger v. Gen. United
Grp., Inc., 268 N.W.2d 630, 635 (Iowa 1978) (holding that because
plaintiffs assumed Delaware law was properly pled and proven by
defendants, we would consider Delaware law, but stressed that this case
was not precedent for ignoring our rules of pleading and proof on foreign
law); see also United States v. Hemingway, 734 F.3d 323, 335 (4th Cir.
2013) (finding a prior case to have no precedential value on a question
because the issue was not contested in the earlier case); Goldberger v.
Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir. 2000) (earlier case was not
precedent because “that issue was neither contested by the parties, nor
addressed by the panel”); Fulton Found. v. Wis. Dep’t of Taxation, 108
N.W.2d 312, 316–17 (Wis. 1961) (holding previous case when no one
challenged the issue could not be precedent on the issue); Silver Lake
Sanitary Dist. v. Wis. Dep’t of Nat. Res., 607 N.W.2d 50, 54 (Wis. Ct. App.
1999) (“It is blackletter law that an opinion does not establish binding
precedent for an issue if that issue was neither contested nor decided.”).
An uncontested statement of law is not entitled to stare decisis.
See, e.g., Hemingway, 734 F.3d at 335; Goldberg, 209 F.3d at 49; Berger,
268 N.W.2d at 635; Fulton, 109 N.W.2d at 317. Instead, the agreed upon
legal principle is law of the case binding on the parties in the event of
retrial, but nothing more. State v. Ragland, 812 N.W.2d 654, 658 (Iowa
2012) (holding settled legal principles are binding on litigants throughout
future progress of case); accord State ex rel. Goettsch v. Diacite Distribs.,
Inc., 596 N.W.2d 532, 537 (Iowa 1999).
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III. Negligence Theory, Vicarious Liability, and the Faragher–
Ellerth Defense.
A. Overview of the Issue. When an employee is sexually
harassed by other employees, the question arises to what extent the
employer may be held responsible for the actions of its employees under
civil rights laws. One question is whether it should matter that the
harassment was committed by a coworker or by a supervisor. If the
harassment is by a supervisor, should the supervisor be considered an
agent of the employer and thus provide a basis for vicarious liability? If
different legal consequences flow from harassment involving a supervisor
compared to harassment by coworkers, how does the law handle
situations when harassers include both coworkers and supervisors?
As with many similar issues, nothing in the ICRA or Title VII
expressly answers these questions, and as a result, courts are left to
resolve the issue through statutory interpretation. Courts are required
to fill the gaps in the statute in the crucible of an adversary proceeding.
B. Challenged Trial Court Instruction. The starting place of our
analysis is a review of the jury instructions on Haskenhoff’s claim of
negligence under the ICRA. In Instruction No. 14, the marshalling
instruction for sexual harassment, the jury was instructed Haskenhoff
had to prove, among other things, that “6. Homeland Energy Solutions,
L.L.C., knew or should have known of the occurrence of one or more
sexually harassing incidents. 7. Homeland Energy Solutions, L.L.C.,
acted negligently in creating or continuing a hostile work environment.”
The language in Instruction No. 14 is drawn nearly verbatim from the
United States Supreme Court description of direct negligence claims
under Title VII provided in Vance v. Ball State University, 570 U.S. ___,
___, 133 S. Ct. 2434, 2452 (2013), which stated “an employer will always
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be liable when its negligence leads to the creation or continuation of a
hostile work environment.”
With respect to negligence, Instruction No. 17 instructed the jury
that
“Negligence” means failure to use ordinary care.
Ordinary care is the care which a reasonably careful
employer would use in similar circumstances. “Negligence”
is doing something a reasonable careful employer would not
do under similar circumstances, or failing to do something a
reasonably careful; employer would do under similar
circumstances.
Except for substituting the term “employer” for “person,” Instruction
No. 17 is a verbatim version of Iowa State Bar Association Jury
Instruction 700.2 entitled “Ordinary Care—Common Law Negligence—
Defined.” This instruction has been used countless times in the courts
of this state in negligence cases.
Finally, in Instruction No. 24, the jury was instructed that
[o]nce an employer knows or should have known of sexual
harassment, it must take prompt remedial action reasonably
calculated to end the conduct. The employer has a duty to
take this remedial action even if an employee asks the
employer not to do anything.
(Emphasis added.) Instruction No. 24 is derived from the affirmative
defense for vicarious liability claims from Faragher–Ellerth.
C. Overview of Review of Jury Instructions. In fashioning jury
instructions, we have repeatedly stated that a trial court “need not
instruct in a particular way so long as the subject of the applicable law is
correctly covered when all the instructions are read together.” State v.
Uthe, 542 N.W.2d 810, 815 (Iowa 1996). A trial court “is free to draft jury
instructions in its own language.” Hoekstra v. Farm Bureau Mut. Ins.,
382 N.W.2d 100, 110 (Iowa 1986). We have emphasized that the court
need not use terms suggested by the parties. Bossuyt v. Osage Farmers
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Nat’l Bank, 360 N.W.2d 769, 772 (Iowa 1985). And, our instructions do
not need to follow particular authorities. In Bossuyt, we emphasized that
an instruction on fraud was sufficient even though it did not follow the
exact phrasing of the Restatement (Second) of Contracts. Id. at 774.
Our well-established Iowa caselaw is consistent with federal
precedent. As noted by one federal appellate court, review of jury
instructions does not require “word-by-word hairsplitting.” Johnson v.
Breeden, 280 F.3d 1308, 1314 (11th Cir. 2002). As long as instructions
“accurately reflect the law, the trial judge is given wide discretion as to
the style and wording employed.” United States v. Starke, 62 F.3d 1374,
1380 (11th Cir. 1995).
The question in considering the legal sufficiency of a jury
instruction is whether relevant elements of a claim “may be adequately
conveyed to the jury by the evidence and by argument of counsel under
the instruction that the court gave.” Hillrichs v. Avco Corp., 478 N.W.2d
70, 74 (Iowa 1991), abrogated on other grounds by Reed v. Chrysler Corp.,
494 N.W.2d 224, 226 (Iowa 1992). What is important is that the
instructions, considered as a whole, were sufficient “so that the jurors
understood the issues and were not misled.” Johnson, 280 F.3d at 1314
(quoting Starke, 62 F.3d at 1380). Generally understood terms which are
in ordinary usage do not need to be defined. State v. Kellogg, 542 N.W.2d
514, 516 (Iowa 1996).
When error in a jury instruction is not of constitutional magnitude,
“the test of prejudice is whether it sufficiently appears that the rights of
the complaining party have been injuriously affected or that the party
has suffered a miscarriage of justice.” State v. Gansz, 376 N.W.2d 887,
891 (Iowa 1985). Reversal is required if the jury instructions misled the
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jury or if the court materially misstates the law. Rivera v. Woodward
Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015).
D. Positions of the Parties.
1. Defendants. HES maintains the district court erred in its jury
instructions by “adopting a common law negligence standard” and
denying HES’s affirmative defense. Specifically, HES asserts that under
the ICRA, HES was entitled to an instruction on the Faragher–Ellerth
affirmative defense, which has been adopted by the United States
Supreme Court. HES maintains that it is entitled to the Faragher–Ellerth
defense in this case because the plaintiff’s claims involve a supervisor
and the alleged harassment did not culminate in a tangible employment
action. Under Faragher–Ellerth, HES asserts entitlement to an
affirmative defense that allows it to show “(a) [HES] exercised reasonable
care to prevent and correct promptly any sexually harassing behavior,
and (b) that [Haskenhoff] unreasonably failed to take advantage of any
preventative or corrective opportunities provided by [HES] or to avoid
harm otherwise.” See Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270.
HES recognizes that in cases involving coworker harassment, a
different framework applies. HES recognized that in Vance, the Supreme
Court declared, “If the harassing employee is the victim’s co-worker, the
employer is liable only if it was negligent in controlling working
conditions.” 570 U.S. at ___, 133 S. Ct. at 2439.
But HES claims that a plaintiff in a negligence case involving
coworkers must prove more than the Vance formulation that the
employer is liable only if it was negligent in controlling working
conditions. Id. HES adds another element to the negligence claim.
According to HES, in cases involving coworker harassment, the plaintiff
is required to prove not only the presence of harassment that the
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employer knew or should have known existed, but also that the employer
“failed to take prompt and appropriate corrective action.” McCombs v.
Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005). An instruction that the
plaintiff must prove the defendant acted negligently in creating or
continuing a sexually hostile environment is not enough according to
HES. It claims that the district court was obligated to include its
additional verbal formulation. HES further asserts prejudice arose from
the failure to so instruct. Rivera, 365 N.W.2d at 892.
2. Haskenhoff. Haskenhoff argues that under the ICRA, a plaintiff
may choose to proceed under either a direct negligence or vicarious
liability theory. She asserts that she elected to proceed under a
negligence theory, and thus the law related to vicarious liability claims
against an employer is irrelevant.
Haskenhoff supports her choice-of-theories approach by citing
language of the Supreme Court in Vance, 570 U.S. at ___, 133 S. Ct. at
2434. In Vance, the United States Supreme Court stated “an employer
will always be liable when its negligence leads to the creation or
continuation of a hostile work environment.” Id. at ___, 133 S. Ct. at 2452
(emphasis added). Haskenhoff further cites Vance for the proposition
that a situation where some harassers are coworkers and others are
supervisors “presents no problem for the negligence standard.” Id. at
___, 133 S. Ct. at 2451–52; see also Phelan v. Cook County, 463 F.3d
773, 784 (7th Cir. 2006) (declining to sort out who were supervisors
since sexual harassment claim survived summary judgment via
negligence method); Sharp v. Houston, 164 F.3d 923, 928–29 (5th Cir.
1999) (allowing jury instruction on negligence theory even though
harasser was top manager in plaintiff’s unit).
105
Because at trial Haskenhoff proceeded only on a direct negligence
theory, she claims that HES was not entitled to the Faragher–Ellerth
defense, which may be utilized only in a vicarious liability case. See
Johnson v. Shinseki, 811 F. Supp. 2d 336, 348 n.2 (D.C. Cir. 2011);
Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999).
According to Haskenhoff, the reason for the Faragher–Ellerth defense was
to ensure that employers would not be held automatically liable for
harassment involving supervisors. Faragher, 524 U.S. at 804, 118 S. Ct.
at 2291; Ellerth 524 U.S. at 763, 118 S. Ct. at 2270. But when vicarious
liability is not asserted, the Faragher–Ellerth framework is inapplicable.
Direct negligence, according to Haskenhoff, is a tried and true method of
litigating sexual-harassment cases. See Boyle v. Alum-Line, Inc., 710
N.W.2d 741, 748 (Iowa 2006); Farmland Foods, Inc. v. Dubuque Human
Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003).
In addition, Haskenhoff maintains that HES was not prejudiced by
the failure to give HES’s requested Faragher–Ellerth defense instruction.
Haskenhoff argues the plaintiff’s burden under a negligence standard is
higher than that under Faragher–Ellerth. In a negligence case,
Haskenhoff asserts, the plaintiff must prove the employer was negligent.
In a vicarious liability case, however, the plaintiff does not have to prove
negligence, and the defense has the burden of showing “prompt and
effective” remedial action under Faragher–Ellerth.
E. The Distinction Between Direct Negligence Claims and
Vicarious Liability Claims Under Federal and Civil Rights State Law.
1. Distinction between direct negligence and derivative liability.
The federal and state civil rights caselaw clearly distinguishes direct
negligence claims from claims based on vicarious liability. A direct
negligence approach is generally used in federal cases under Title VII by
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plaintiffs who seek to thrust liability onto employers for the harassment
they suffered at the hands of coworkers. The direct negligence cases
stress that employer liability for coworkers “is direct liability for
negligently allowing harassment, not vicarious liability for the harassing
actions of employees.” Williamson v. Houston, 148 F.3d 462, 465 (5th
Cir. 1998); Pierce v. Commonwealth Life Ins., 40 F.3d 796, 804 n.11 (6th
Cir. 1994) (“The term ‘respondeat superior’—which connotes derivative
liability—is an incorrect label for co-worker harassment cases, where the
employer is directly liable for its own negligence.”).
2. Two types of direct negligence: negligence in the creation and
negligence in the continuation of harassment. The Supreme Court
explored some elements of a direct negligence claim in Vance, 570 U.S. at
___, 133 S. Ct. at 2434. Vance held a plaintiff could bring a derivative
claim based on vicarious liability for acts of a supervisor if the plaintiff
suffers tangible adverse consequences of the harassment, but that
vicarious liability could not arise if the consequences were intangible. Id.
at ___, 133 S. Ct. at 2439. In Vance, the Supreme Court recognized the
two theories of direct negligence actions, observing that “an employer will
always be liable when its negligence leads to the creation or continuation
of a hostile work environment.” Id. at ___, 133 S. Ct. at 2452 (emphasis
added).
3. Relevant evidence in fact-based direct negligence actions. In
discussing direct negligence actions as a distinct alternative to a
derivative claim based on vicarious liability, the Vance Court observed,
“Evidence that an employer did not monitor the workplace, failed to
respond to complaints, failed to provide a system for registering
complaints, or effectively discouraged complaints from being filed would
be relevant.” Id. at ___, 133 S. Ct. at 2453 (emphasis added). These
107
evidentiary observations appear to be germane to direct negligence
actions based on a failure to prevent and negligence related to the
continuation of harassment.
4. Combining coworkers and supervisors in direct negligence
actions. While a direct negligence theory is generally used to affix liability
to the employer when the harassers are solely coworkers, the question
arises as to whether a direct negligence claim can also be made when one
or even all of the harassers are supervisors. A plaintiff may want to use
such a strategy when it is not entirely clear whether the harassers would
be considered coworkers or supervisors. By assuming the burden of
proving direct negligence, rather than shifting the burden to the
defendant under the derivative approach of vicarious liability, the
plaintiff avoids the risk that the court could ultimately conclude a
harasser was not a supervisor and thus an employer could not be held
derivatively liable on a vicarious liability theory. Thus, plaintiffs are not
forced to litigate harassment cases involving supervisors under a
vicarious liability theory. They may choose to proceed under the more
demanding direct negligence theory.
There is dicta in support of the notion that supervisors may be
considered coworkers for purposes of a direct negligence claim brought
under Title VII. In Ellerth, the Supreme Court observed that while a
derivative claim based upon a vicarious liability might be available for
claims against supervisors under certain circumstances, “an employer
can be liable, nonetheless, where its own negligence is a cause of the
harassment.” 524 U.S. at 758–59, 118 S. Ct. at 2267. There is lower
federal and state court authority consistent with the proposition that the
conduct of supervisors may be considered part of a direct negligence
claim brought by a Title VII plaintiff. See, e.g., Rios Da Silva v. One, Inc.,
108
980 F. Supp. 2d 148, 163 (D.P.R. 2013); Nadeau v. Rainbow Rugs, Inc.,
675 A.2d 973, 976–77 (Me. 1996); Hoy v. Angelone, 691 A.2d 476, 481
(Pa. Super. Ct. 1997).
F. The Kaleidoscope of Federal Circuit Model Jury
Instructions on Direct Negligence in Harassment Cases. A survey of
federal circuit court model jury instructions for harassment claims based
on direct negligence demonstrates the kaleidoscope of verbal
formulations that may be used in instructing juries on direct negligence
claims. See generally 3C Kevin F. O’Malley et al., Federal Jury Practice
and Instructions § 171:23, at 262–77 (6th ed. 2014) [hereinafter O’Malley
2014] (providing model jury instructions from the federal circuits and
collecting cases on those instructions). Some instructions are long, some
are short. In describing the plaintiff’s burden in showing the employer
was negligent, some use language of reasonableness, some use the
somewhat narrower language of prompt and appropriate or effective
remedial action, and many use both.
The model instruction for the United States Court of Appeals for
the Third Circuit is detailed and elaborate. According to the Third
Circuit model instruction, in sexual harassment cases involving
nonsupervisors, the plaintiff must show that management “knew, or
should have known of the abusive conduct.” Id. at 264. If the plaintiff
proves its case, however, the defendant is allowed an affirmative defense.
Id. at 265.
Interestingly, though, the affirmative defense, which the defendant
has the burden of proving, is couched in terms of reasonableness. See
id. According to the Third Circuit model instruction, in order to satisfy
the requirements of the affirmative defense, the defendant must show
(1) that it “exercised reasonable care” to prevent the harassment and to
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promptly correct any harassing behavior, and (2) that the plaintiff
“unreasonably failed to take advantage of any preventive or corrective
opportunities.” Id. On the first prong of reasonableness, the Third
Circuit offers a further instruction that a defendant meets that burden
by showing the defendant had an explicit policy against harassment, the
policy was fully communicated to its employees, the policy provided a
reasonable way for plaintiff to make a claim of harassment, and
reasonable steps were taken to correct the problem. Id. The Third
Circuit instruction for coworker harassment tends to mix and match
concepts of direct negligence liability with concepts of derivative liability
based on vicarious liability theory as outlined in Faragher–Ellerth. See
id. at 264–65.
The Fifth Circuit takes a materially different tack in a lengthy
model instruction on direct negligent-harassment claims by coworkers.
3C Kevin F. O’Malley et al., Federal Jury Practice and Instructions
§ 171:23 (6th ed.), Westlaw (database updated Aug. 2016). Under the
Fifth Circuit instruction for a claim of a hostile work environment
involving coworkers based on direct negligence, the plaintiff must show
the defendant “knew, or in the exercise of reasonable care should have
known, that [the plaintiff] was being [sexually harassed] because of the
[Plaintiff’s sex].” Id. The Fifth Circuit instruction states the plaintiff
must show that the harassment was “known by or communicated to a
person who had authority to receive, address, or report the complaint,”
or that the harassment was so “open and obvious” the defendant should
have known of it. Id. In addition, the plaintiff must prove the defendant
failed to take “prompt remedial action” to stop the harassment. Id.
Interestingly, though, the instruction further defines “prompt remedial
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action” as conduct “reasonably calculated to stop the harassment and
remedy the situation.” Id.
The Seventh Circuit model jury instruction eschews the arguably
meandering instruction of the Fifth Circuit for a more direct approach.
O’Malley 2014, at 270–71. In a harassment case involving negligence, a
jury in the Seventh Circuit is instructed that when harassment has been
proved, an employer is liable if it “knew or should have known about the
conduct” and “did not take reasonable steps to [correct the
situation]/[prevent harassment from recurring].” Id. at 271. That is it.
The Seventh Circuit model instruction is quite similar to the marshalling
instruction given by the district court in this case and, compared to the
Fifth Circuit model instruction, has the advantage of simplicity.
The Eighth Circuit model instruction requires that the plaintiff
show the defendant “knew or should have known” of the alleged conduct
and “the defendant failed to take prompt and appropriate corrective
action.” Id. at 272. Although this instruction differs somewhat from the
instruction in our case, “prompt and appropriate corrective action” does
not seem to be a lesser standard than “reasonableness.” An action that
is not “prompt” might still be considered reasonable by a jury, while an
action that is “appropriate” is surely also reasonable.
The Ninth Circuit has a longer model instruction for direct
negligence claims, but it comes to essentially the same place as the
Seventh Circuit’s instruction. Id. at 274–75. Under the Ninth Circuit’s
instruction, a plaintiff who proves harassment and seeks to impose
liability on the employer must show that “the defendant or a member of
the defendant’s management knew or should have known of the
harassment and failed to take prompt, effective remedial action
reasonably calculated to end the harassment.” Id. at 274. The Ninth
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Circuit instruction further defines who qualifies as management and
states the defendant’s remedial action “must be reasonable and
adequate.” Id. Although more detailed, there is no substantive difference
between the Ninth Circuit instruction and the totality of the district
court’s instruction in this case.
What these diverse jury instructions demonstrate is that there is
not one “correct” jury instruction in a direct negligence case. They can
vary from the fairly complex instructions used by the Fifth and Ninth
Circuits to the very simple instruction utilized by the Seventh Circuit. It
is clear, however, that the model instructions in the Fifth, Seventh,
Eighth, and Ninth Circuits are consistent with the trial court’s
instruction in this case.
G. Iowa Caselaw on Negligence Claims. In the pre-Faragher–
Ellerth cases of Chauffeurs, Teamsters & Helpers, Local Union No. 238 v.
Iowa Civil Rights Commission, 394 N.W.2d 375 (Iowa 1986), and Lynch v.
Des Moines, 454 N.W.2d 827 (Iowa 1990), we considered cases in which
the plaintiff claimed the defendants maintained hostile environments
based on race and sex respectively. In describing one of the elements of
a hostile-environment claim, we stated in Lynch that the plaintiff must
prove “the employer knew or should have known of the harassment and
failed to take prompt and appropriate remedial action.” 454 N.W.2d at
833 (emphasis added). In Chauffeurs, we used a slightly different verbal
formulation, indicating that the plaintiff needs to prove the defendant
knew or should have known of the harassment and “failed to take prompt
remedial action.” 394 N.W.2d at 378 (emphasis added). The cases do not
discuss a difference between “prompt remedial action” or “prompt and
appropriate remedial action.” In both cases, we held the evidence
sufficient to support the plaintiff’s claims.
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In another pre-Faragher–Ellerth case, Vaughn v. Ag Processing, Inc.,
we again were asked to consider a hostile-environment harassment
claim, this time based on religion. 459 N.W.2d 627, 632 (Iowa 1990).
We noted specifically the plaintiff did not assert that “Mueller, as
supervisor, was acting as Ag or that Ag was strictly liable for Mueller’s
actions.” Id. at 634. In other words, plaintiff was pursuing a direct
negligence theory and not an agency theory that would give rise to strict
liability against the employer.
Unlike in Chauffeurs and Lynch, however, we found in Vaughn that
the defendant was entitled to prevail. Id. at 639. We found that while
the defendant knew of the harassment, the employer took prompt
remedial action to remedy the problem. Id. at 634. We explained
“prompt remedial action” as placing “a reasonable duty on an employer
who is aware of discrimination in the workplace to take reasonable steps
to remedy it.” Id. at 634 (emphasis added). We noted that whether an
employer takes such reasonable steps to remedy the harassment is a
question of fact. Id. We further noted in Vaughn that the employer’s
conduct was “especially reasonable” in light of the evidence which
showed that the employer did not know the plaintiff was a victim of
religious discrimination. Id. at 635. Under Vaughn, it seems that
“prompt remedial action” and “reasonableness” are interchangeable
concepts, much like the model instructions in the Fifth and Ninth
Circuits.
Our first post-Faragher–Ellerth case involving a claim of a hostile
environment was Farmland Foods, 672 N.W.2d 733. In Farmland Foods,
we cited Eighth Circuit precedent for the proposition that in order to
establish a hostile-environment claim, a plaintiff must show the
employer “knew or should have known of the harassment and failed to
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take proper remedial action.” Id. at 744. We then added, as dictum, a
sentence stating, “When a supervisor perpetrates the harassment, but no
tangible employment action occurred, the employer may assert the
Faragher–Ellerth affirmative defense to avoid liability.” 28 Id. In Farmland
Foods, we concluded the plaintiff failed, on the evidence presented, to
show a hostile environment of racial harassment. Id. at 746. As a
result, the question of whether the employer acted reasonably in
response to the allegedly hostile environment was not considered.
In Boyle, 710 N.W.2d at 741, we considered whether a plaintiff
established a hostile environment based on sex. The district court
concluded the employer knew of the harassment but the employer “did
take steps reasonably calculated to stop the sexual harassment.” Id. at
747 (emphasis added). We also stated that in order to establish liability
for a hostile environment, a plaintiff must show that “the employer knew
or should have known of the harassment and failed to take proper
remedial action.” Id. at 746 (emphasis added) (quoting Farmland Foods,
672 N.W.2d at 744). We equated the test, however, with “steps
reasonably calculated to end the sexual harassment.” Id. at 747
(emphasis added). After canvassing the record, we concluded the record
did not support the trial court’s conclusion that the employer took steps
reasonably calculated to stop the harassment. Id. Because the employer
did not show that it took steps “reasonably calculated to stop the sexual
28This dictum is correct as applied to a derivative claim based upon vicarious
liability, but it does not apply to a claim based upon direct negligence. When a
supervisor participates in the harassment, the plaintiff has a choice. The plaintiff may
proceed directly against the employer under a negligence theory and bear the burden of
showing that the employer knew or should have known of the harassment and failed to
stop it, or she may proceed under a vicarious liability theory. If the plaintiff proceeds
under a vicarious liability theory, then the employer is entitled to the Faragher–Ellerth
defense.
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harassment,” we stated that the employer failed to “implement prompt
and appropriate corrective action.” Id. at 748. In Boyle as in Vaughn,
the shorthand phrases “prompt remedial action” and “prompt and
appropriate action” are equated with steps “reasonably calculated to stop
the sexual harassment.” See id.; Vaughn, 459 N.W.2d at 634.
H. Discussion: Can the Faragher–Ellerth Defense “Jump the
Track”? 29 At the outset, there is no question under the current
prevailing state and federal caselaw that a plaintiff in a sexual-
harassment case may proceed against an employer on a direct negligence
theory and that the direct negligence theory is distinct from a derivative
claim based on vicarious liability. I would thus set aside the caselaw
that might relate to derivative claims based on vicarious liability and
focus solely on the law related to direct negligence.
In direct negligence cases, an employer is entitled to a jury
instruction stating that the plaintiff has the burden of proving the
employer’s negligence “leads to the creation or the continuation of a
hostile work environment.” Vance, 570 U.S. ___, 133 S. Ct. at 2452.
Under negligence theory, there is no Faragher–Ellerth affirmative defense.
The Faragher–Ellerth affirmative defense, if it is available, applies only in
cases based on vicarious liability. Beckford v. Dep’t of Corr., 605 F.3d
951, 960–61 (11th Cir. 2010) (finding a refusal to give a Faragher defense
instruction proper when plaintiff did not argue vicarious liability). 30
29See generally Alex B. Long, “If the Train Should Jump the Track . . .”: Divergent
Interpretations of State and Federal Employment Discrimination Statutes, 40 Ga. L. Rev.
469 (2006).
30Although the parties have assumed in our cases that the Faragher–Ellerth
defense is available under the ICRA, we have not adjudicated the issue in a contested
case. A number of state courts have declined to adopt the Faragher–Ellerth defense
under their state civil rights acts. See, e.g., Myrick, 73 F. Supp. 2d at 98; Chambers,
614 N.W.2d at 918; Pollock, 11 S.W.3d at 767.
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As a result, it is important to note that under a claim based on
negligence, the second prong of the Faragher–Ellerth defense, namely,
that the employer may prove the plaintiff failed to avail herself of an
employer’s internal remedy, has no application. Indeed, that is the main
advantage of a negligence claim—specifically, that it can provide a basis
for liability when the harassment victim never formally complained to his
or her employer. See Zayadeen v. Abbott Molecular, Inc., No. 10 C 4621,
2013 WL 361726, at *1 (N.D. Ill. Jan. 30, 2013); Andrew Freeman, A
Bright Line, But Where Exactly? A Closer Look at Vance v. Ball State
University and Supervisor Status Under Title VII, 19 Lewis & Clark L. Rev.
1153, 1161–62 (2013). The fact that a report to management is not
required is an important feature of direct negligence liability, for many
women are reluctant to step forward to report sexual harassment to
superiors. See L. Camile Hebert, Why Don’t “Reasonable Women”
Complain About Sexual Harassment?, 82 Ind. L.J. 711, 724–29 (2007).
For instance, some victims may not report harassment for fear of
retaliation from coworkers. See Christopher M. Courts, Note, An Adverse
Employment Action—Not Just an Unfriendly Place to Work: Co-Worker
Retaliatory Harassment Under Title VII, 87 Iowa L. Rev. 235, 236 (2001).
As a result, HES’s argument that it was entitled to an affirmative
Faragher–Ellerth defense is without merit. Interestingly, however, the
trial court did instruct the jury on the first prong of the Faragher–Ellerth
affirmative defense in Instruction No. 24. That instruction stated that
HES had the burden of showing that it took prompt and appropriate
remedial action reasonably calculated to end the conduct. In a
negligence action, however, HES does not have any burden. Rather, the
burden is always on the plaintiff to prove negligence. But HES sought
this instruction and does not object to it now. It may have been wrong,
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but HES cannot complain about an instruction it sought and does not
challenge on appeal.
I now turn to the question of whether the district court properly
instructed the jury on what the plaintiff must show to affix liability to
HES based upon direct negligence. The marshalling instruction required
the plaintiff to prove that HES acted “negligently in the creation or
continuance of a hostile work environment.” These words are virtually
lifted verbatim from Vance and are a correct statement of law.
So far so good. Next, the district court offered an instruction on
negligence. The district court instructed the jury that “negligence”
means “the failure to exercise ordinary care.” Further, “ordinary care is
the care which a reasonably careful employer would use under all the
circumstances.”
HES asserts the district court’s formulation is inadequate. It
insists the district court was required to instruct the jury that the
plaintiff must show not that the employer failed to act reasonably, but
instead that the employer failed to use “prompt and appropriate remedial
action.”
In short, HES insists on magic words. But not only does our law
not require magic words for jury instructions, but such demanding word
regimes are contrary to our declarations that the trial court “need not
instruct in a particular way so long as the subject of the applicable law is
correctly covered.” Uthe, 542 N.W.2d at 815; Hoekstra, 382 N.W.2d at
110.
One can only wonder what the difference is between acting
reasonably and acting appropriately. Federal cases refer to such
arguments with disdain as “word-by-word hairsplitting.” See Johnson,
280 F.3d at 1314. Certainly, the difference between the concept of
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reasonability in the district court’s negligence instruction and
appropriateness in HES’s formulation is not a basis for reversal here.
HES’s formulation also uses the term “prompt” while the district
court’s instruction simply referred to reasonability. This is not the stuff
of reversible error. Our caselaw has repeatedly equated prompt remedial
action with action “reasonably calculated to stop the sexual harassment”
or placing a “reasonable duty on an employer who is aware of
discrimination in the workplace to take reasonable steps to remedy it.”
Boyle, 710 N.W.2d at 747; Vaughn, 459 N.W.2d at 634. If anything, the
term “prompt” may be more demanding on the employer then the
reasonability requirement as instructed by the district court. In any
event, I would find that no reasonable jury would draw a distinction
between reasonable action by an employer to stop the harassment and
prompt and appropriate remedial action.
In considering the negligence instructions given in this case, the
instructions accurately reflect the law. The instructions were very close
to the model instruction in use in the Seventh Circuit and, in their
totality, are certainly consistent with the model instructions in the Fifth
and Ninth Circuits. The district court instructed the jury in the
marshalling instruction that Haskenhoff had the burden to prove that
HES “knew or should have known” of the harassment. The instruction
further required Haskenhoff to prove that HES “acted negligently in
creating or continuing a hostile work environment.” The district court
also gave a proper instruction to the jury regarding the meaning of
negligence as a failure to use ordinary care “which a reasonably careful
employer would use in a similar circumstance.”
The fact the instruction was adequate is demonstrated by the
record in this case. In her opening statement, Haskenhoff told the jury
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that “an employer has a duty to . . . protect its employees insofar as they
can reasonably do so from sexual harassment.” Further, Haskenhoff told
the jury “if an employer knows about sexual harassment and lets it
continue for a month—let alone several months—and it violates the law
. . . the employer must compensate the victim for whatever harm is
caused.”
In its opening statement, HES responded that “this is a case about
a lab manager that failed for months or years to report prohibited
conduct and, before HES could act on the information she reported, quit
on the job.” HES further asked the jury “will the evidence show that the
plaintiff followed HES policy . . . and that HES was given a chance to
promptly remedy the conduct that she did report?” Then in closing
argument, Haskenhoff told the jury,
Homeland acted negligently . . . . They did not monitor the
workplace. They did nothing more to protect Tina going
forward . . . . They did nothing to stop it. They allowed the
environment to continue and caused great harm to Tina . . . .
Once the employer knows or should have known about
sexual harassment, it must take prompt remedial action
reasonably calculated to end the conduct.
(Emphasis added.) Thus, in the closing statement, Haskenhoff’s counsel
told the jury that the obligation of the employer, once it knew or should
have known about the harassment, was to take “prompt remedial action
reasonably calculated to end the conduct.”
In its closing statement, HES picked up on the plaintiff’s closing
argument. HES told the jury that “she needs to prove . . . that HES
failed to act reasonably and responsibly in a way calculated to bring the
conduct of which she complained to an end. That’s the biggest
question.”
Further, HES told the jury that
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Instruction 17 and 24 go to the last element, if you will.
What the plaintiff has to prove is that this employer was
either not doing something a reasonable careful employer
would do or failed to do something a reasonably careful
employer would do.
HES further asked the jury “did the company put a plan together that
was reasonably calculated to end the conduct?” According to HES, the
company “wanted it to just stop,” and cited “the evidence here that it
did.” In rebuttal, Haskenhoff told the jury, “You have to conduct prompt,
thorough and impartial investigation into any potential sexual
harassment, however you become aware of it, whether it is in a written
complaint or not, whether you see or whether it’s just a rumor.”
What the opening and closing arguments demonstrate is that the
instructions, though brief like the Seventh Circuit model instruction,
were clearly and demonstrably sufficient to allow HES to make the
argument which it claims on appeal it was foreclosed from making. See
Hillrichs, 478 N.W.2d at 74 (finding instructions adequate in which they
allowed consideration of evidence and arguments by counsel on legal
elements). HES thus advances a battle not over principle, but over
semantics. Under the instructions, Haskenhoff had the burden of
proving negligence. As the model instructions of the various circuits
indicate, “prompt and effective remedial action” is a another way of
expressing reasonableness. See also Lehmann v. Toys ‘R’ Us, Inc., 626
A.2d 445, 464 (N.J. 1993) (“Effective” remedial measures are those
“reasonably calculated to end the harassment.”); Campbell v. Fla. Steel
Corp., 919 S.W.2d 26, 33 (Tenn. 1996) (stating no precise definition of
“prompt and appropriate remedial action” though in general employers
are required to take steps “reasonably calculated” to terminate
harassment); Davis v. Modine Mfg., Co., 979 S.W.2d 602, 607 (Tenn. Ct.
App. 1998) (equating “prompt and appropriate corrective action” with
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action “reasonably calculated to terminate the alleged harassment”). If
HES could convince a jury that it took prompt and effective remedial
action, it would not be found to have acted unreasonably. There is no
error in the instructions that were based on the language of Vance and
the ISBA Model Jury Instruction defining negligence.
IV. Causation Instruction on Retaliatory Discharge.
A. Introduction.
1. Ambiguity in “because” language. Causation has been one of
the most controversial aspects of employment law. The literature is
chock-full of alternate causation standards, including “but for,”
“motivating factor,” “substantial factor,” “a motivating factor,” and similar
terms. There are arguments aplenty for each of them. See generally
Kendall D. Isaac, Is It “A” Or Is It “The”? Deciphering the Motivating-Factor
Standard in Employment Discrimination and Retaliation Cases, 1 Tex.
A&M L. Rev. 55, 73–77 (2013); Schwartz, 150 U. Pa. L. Rev. at 1708
(citing various different approaches to causation requirement).
By using “because” in Iowa Code section 216.11(2), the section
related to causation in retaliation cases, the Iowa legislature has left the
causation question to the courts to determine as a matter of statutory
construction. Because the statute is ambiguous, we have a number of
plausible interpretive choices. In exercising our authority to construe
the statute and choose among plausible interpretive choices, we must be
cognizant of the text of the statute, its goals, and the legislative direction
to construe the ICRA broadly to effectuate its underlying purposes. Id.
§ 216.18(1).
2. Centrality of reporting requirements in Iowa civil rights law and
linkage to substantive violations. Some may regard a retaliation claim as
a second-class claim under the ICRA compared to status-based
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discrimination claims. Retaliation claims, however, are not second-class
claims at all, but instead are claims that strike at the very heart of the
enforcement regime of the ICRA. Under the ICRA, a claimant is required
to file a timely claim with the Iowa Civil Rights Commission in order to
present a claim. McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005).
The requirement is mandatory. See id. Thus, being able to file a claim
free from fear of workplace retaliation is directly linked to the ability of a
claimant to vindicate his or her rights under the ICRA. A statute that
forces workers to invoke an administrative process or to cooperate in
subsequent investigations should protect workers who comply. Sandra
F. Sperino, Retaliation and the Reasonable Person, 67 Fla. L. Rev. 2031,
2074 (2015) [hereinafter Sperino, Retaliation].
As a result, keeping the channels of reporting potential civil rights
claims free, open, and unfettered is crucial to vindicating the substantive
policies of the ICRA. And, closing the channels of reporting through
retaliation does not only affect the party but harms the system itself. See
Richard Moberly, The Supreme Court’s Antiretaliation Principle, 61 Case
W. Res. L. Rev. 375, 380 (2010) (citing law enforcement rationale). In
addition to protecting the person claiming discrimination, coworkers
participating in investigations need protection if the system is to function
properly. A retaliation claim thus is not a satellite claim on the fringes of
civil rights law. It is an essential claim, without which the ICRA could
not fulfill its laudatory statutory purpose.
3. Purpose of retaliation provision as affecting causation. In
considering whether the plaintiff has presented sufficient evidence to
reach a jury on a retaliation claim, much debate has occurred on the
level of causation—a motivating factor, a substantial factor, a but-for
factor, etc. Aside from level of causation, however, there is another
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issue. Causation is not a free radical floating around the employment
law universe untethered to any other legal principle. There is a relational
question, namely, causal connection in relation to what, exactly?
And that is a key question. In the retaliation context, the question
is whether the causation is judged by whether the alleged retaliatory
conduct would likely deter a plaintiff from making a complaint
contemplated by our civil rights laws. Or, is it judged by whether it
“affects a term, condition, or privilege” of employment? This relational
question is just as important as the calibration of the “level” of causation
required in determining whether a plaintiff has made a sufficient showing
to support a retaliation claim.
4. Difficulty of fact-finding in retaliation cases. Finally, we should
recognize the evidentiary challenges facing a plaintiff in proving a
retaliation claim. In retaliation cases, we are necessarily probing into
difficult factual issues involving the motivation of the defendant. The
evidence related to motivation is almost always in the hands of the
defendant. In addition, the evidence in the modern work place is often
indirect, although “smoking guns” are still occasionally uncovered.
Further, to the extent causation involves whether a reasonable
person in the position of the plaintiff would be deterred from utilizing
appropriate reporting procedures, the question becomes highly
contextual. Highly contextual factual issues are rarely amenable to
summary judgment.
B. Challenged Trial Court Instructions. With respect to her
retaliation claim, the jury was instructed that Haskenhoff need only
prove that her report of sexual harassment “played a part” in HES’s
decision to take adverse employment action against her to prevail on her
retaliation claim. The jury was further instructed that to “play a part”
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the report need only have been “a factor” in HES’s employment action
but “need not be the only factor.”
HES offered an instruction that Haskenhoff’s report of sexual
harassment must have been “a significant factor motivating the
Defendant’s decision to take materially adverse employment action
against Plaintiff” in order for the jury to find in favor of Haskenhoff on
her retaliation claim.
C. Federal Caselaw on Causation Standard for Civil Rights
Claims.
1. Causation standard for status-based discrimination. Title VII of
the Civil Rights Act of 1964 provides that it “is an unlawful employment
practice for an employer . . . to discriminate against any individual . . .
because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1)–(2) (emphasis added). Like prior state
legislatures who used the term in their state civil rights acts, Congress
provided no guidance as to the meaning of the ambiguous phrase
“because of” in its status-based discrimination provision. The meaning
of the phrase “because of” has been a major point of controversy in
federal civil rights law.
Early federal caselaw struggling with the “because of” language
came to mixed results. Many federal courts adopted a relaxed standard
of proof close to a played-a-part standard. See King v. N.H. Dep’t of Res.
& Econ. Dev., 420 F. Supp. 1317, 1327 (D. N.H. 1976). Others adopted
something like a significant-factor test. See Baldwin v. Birmingham Bd.
of Educ., 648 F.2d 950, 956 (5th Cir. 1981); Whiting v. Jackson State
Univ., 616 F.2d 116, 121 (5th Cir. 1980). Some cases embraced a more
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stringent determinative-factor or motivating-factor test. See Womack v.
Munson, 619 F.2d 1292, 1297 (8th Cir. 1980). 31
In Price Waterhouse, the United States Supreme Court considered
the meaning of the term “because of” under the status-based
classification provision of Title VII. 490 U.S. at 239–40, 109 S. Ct. at
1785. A majority of the court concluded the proper approach to the
phrase “because of” was a motivating-factor test. Id. at 258, 109 S. Ct.
at 1795 (plurality opinion); id. at 259, 109 S. Ct. at 1795 (White, J.,
concurring); id. at 276, 109 S. Ct. at 1804 (O’Connor, J., concurring). As
Justice Brennan noted in his plurality opinion, Congress has specifically
rejected an amendment to put the term “solely” in front of the “because
of” language. Id. at 241, 109 S. Ct. at 1785 (plurality opinion).
According to Justice Brennan, Congress intended to eliminate
employment decisions in which discriminatory motivation “played a part”
in an employment decision, even if it was not the sole basis for the
decision. Id.
The Price Waterhouse Court, however, added an important caveat
to its motivating-factor interpretation. In cases of mixed motive, the Price
Waterhouse Court concluded that an employer was entitled to a “same
decision” affirmative defense. Id. at 242, 109 S. Ct. at 1786. In other
words, if an employer could show in a mixed-motive case that the same
decision would have been made absent the discriminatory motivation,
the employer could escape liability. Id.
In response to the same-decision aspect of Price Waterhouse and
other Supreme Court civil rights decisions, Congress enacted the Civil
31Womack appears to have been subsequently modified by later cases. See, e.g.,
Tuttle v. Henry J. Kaiser Co., 921 F.2d 183, 186 n.3 (8th Cir. 1990); Balicao v. Univ. of
Minn., 737 F.2d 747, 750 n.2 (8th Cir. 1984).
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Rights Act of 1991. Civil Rights Act of 1991, Pub. L. No. 102-166, 105
Stat. 1071 (codified at 42 U.S.C. § 2000e-2(m)). The purpose of the 1991
Act, according to Congress, was to provide “additional protections against
unlawful discrimination in employment.” Id. The Civil Rights Act of
1991 added the following section to Title VII: “[A]n unlawful
unemployment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors
also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added).
This section plainly endorsed the motivating-factor approach of Price
Waterhouse.
Congress further amended the statute, however, to limit the same-
decision affirmative defense established in Price Waterhouse. Congress
limited the same-decision defense by providing that if the employer
demonstrates that it
would have taken the same action in the absence of the
impermissible motivating factor, the court . . . may grant
declaratory relief, injunctive relief . . . and [limited] attorney’s
fees and costs . . . and . . . shall not award damages or issue
an order requiring any admission, reinstatement, hiring,
promotion, or payment.
42 U.S.C. § 2000e-5(g)(2)(B). The impact of this amendment provided
employees with greater protection than allowed under the Supreme
Court’s decision in Price Waterhouse. The same-decision amendment
was thus consistent with the underlying statutory purpose of the Civil
Rights Act of 1991 to “provide additional protections” to employees
suffering from impermissible discrimination.
Notably, however, the Civil Rights Act of 1991 did not amend the
retaliation provision of Title VII, which also contains a because-of
requirement of causation. What gloss should be put on the because-of
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language in the retaliation in light of the Price Waterhouse and the Civil
Rights Act of 1991?
There were a number of possible approaches. Several courts
concluded that because Congress did not specifically amend the separate
retaliation section in the Civil Rights Act of 1991, the causation standard
existing before the passage of the Act announced in Price Waterhouse
provided the proper approach to causation in retaliation claims. See,
e.g., Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 n.4 (10th Cir.
1999); Woodson v. Scott Paper Co., 109 F.3d 913, 934–35 (3d Cir. 1997);
Tanca v. Nordberg, 98 F.3d 680, 683–84 (lst Cir. 1996). While
recognizing that the Civil Rights Act of 1991 amendments did not extend
to retaliation claims, these courts took the position that the Supreme
Court’s decision in Price Waterhouse, which involved a status-based
claim, did extend to retaliation claims. These courts thus relied on the
unique nature of the 1991 legislation to uncouple the causation standard
of retaliation-based claims from status-based claims.
Other federal courts seem to have taken a different approach.
Although short of an express holding, the Seventh Circuit in Veprlinsky
v. Fluor Daniel, Inc., cited the 1991 amendments establishing a
motivating-factor causation test for status-based discrimination as also
applying for treatment of retaliation claims. 87 F.3d 881, 886, 887 n.3
(7th Cir. 1996); see also Hall v. City of Brawley, 887 F. Supp. 1333, 1345
(S.D. Cal. 1995) (finding impermissible motivation, sustaining “same
decision” defense, but affording statutory remedies permitted under Civil
Rights Act of 1991 but not under Price Waterhouse). In de Llano v. North
Dakota State University, the district court concluded that “it would be
illogical and contrary to congressional intent to apply different standards
of proof and accompanying relief provisions to retaliation claims as
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opposed to discrimination claims.” 951 F. Supp. 168, 170 (D. N.D.
1997).
The fighting issue in this split was whether the employer was
entitled to a complete same-decision affirmative defense under Price
Waterhouse for retaliation claims, or whether the limitations of the same-
decision defense contained in the 1991 Act were applicable. See
generally Lawrence D. Rosenthal, A Lack of “Motivation” or Sound Legal
Reasoning? Why Most Courts Are Not Applying Either Price Waterhouse’s
or the 1991 Civil Rights Act’s Motivating-Factor Analysis to Title VII
Retaliation Claims in a Post-Gross World (But Should), 64 Ala. L. Rev.
1067, 1070–73 (2013).
2. Causation standard for claims under the Federal ADEA at
variance with generally applicable federal status-based causation test. In
Gross, the United States Supreme Court considered the question of
causation in an age discrimination case brought under the ADEA. 557
U.S. at 169–70, 129 S. Ct. at 2346. Unlike Iowa law, which has a unified
statute, age discrimination in the federal regime is addressed in a
separate statutory provision.
In Gross, the Court considered the meaning of an ADEA provision
which stated,
It shall be unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s age.
Id. at 182, 129 S. Ct. at 2353 (quoting 29 U.S.C. § 623(a)(1) (emphasis
added)).
The district court in Gross instructed the jury that liability could
be based upon a determination that age was a motivating factor. 557
128
U.S. at 170–71, 129 S. Ct. at 2347. The jury returned a verdict in favor
of the plaintiff. Id. at 171, 129 S. Ct. at 2347. On appeal, the Eighth
Circuit reversed. Id. The Eighth Circuit ruled that because the plaintiff
did not advance any direct evidence of age discrimination, the plaintiff
was not entitled to a mixed-motive instruction under Price Waterhouse.
Id. While the question presented focused on whether a plaintiff must
present direct evidence of age discrimination to obtain a mixed-motive
jury instruction under the ADEA, the Supreme Court instead decided to
answer the question of whether a mixed-motive instruction is even
allowed under the ADEA. Id. at 173, 129 S. Ct. at 2348.
In a 5–4 decision, the United States Supreme Court held that Price
Waterhouse-type burden shifting did not apply to claims brought under
the ADEA. Id. The reasoning of the Gross Court, however, is pertinent to
this case. The Supreme Court stressed that in statutory interpretation,
the court “must be careful not to apply rules applicable under one
statute to a different statute without careful and critical examination.” Id.
at 174, 129 S. Ct. at 2349. The Supreme Court emphasized that Title
VII, after the 1991 amendments, expressly authorized mixed-motive
analysis, while no similar change was introduced into the ADEA. Id.
Using dictionary definitions, the majority concluded that “because of” in
the ADEA meant “but for” rather than the lesser standard in Price
Waterhouse. Id. at 176–77, 129 S. Ct. at 2350.
Obviously, the analysis in Gross of “because of” in the ADEA was
at odds with the similar analysis of the exact same term in Title VII in
Price Waterhouse. There were now two competing approaches to
“because of” in the United States Supreme Court precedents. With
respect to retaliation claims under Title VII, the question after Gross was
whether the motivating-factor approach to “because of” in Price
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Waterhouse would apply to retaliation claims under Title VII, or would
the new Gross but-for test for “because of” supplant it
3. Causation standard for federal retaliatory claims. In University
of Texas Southwestern Medical Center v. Nassar, another bare 5–4
majority of the Supreme Court held that the proper causation test for a
retaliation claim under Title VII is the but-for test. 570 U.S. ___, ___, 133
S. Ct. 2517, 2534 (2013). The Nassar majority focused on the language
of the Civil Rights Act of 1991. Id. at ___, 133 S. Ct. at 2526.
Specifically, the majority noted that in 1991, Congress required a
motivating-factor causation test for status-discrimination claims, but did
not expressly extend that standard to retaliation claims. Id. at ___, 133
S. Ct. at 2529. The majority characterized this as a structural choice.
Id. The majority emphasized the importance of allowing Congress to
choose its structure by differentiating between the status-discrimination
and the retaliation provisions of Title VII. Id. The majority then
compared the “because of” language in the ADEA with the “because of”
language in the provision of Title VII. Id. at ___, 133 S. Ct. at 2528–29.
Finding them similar, and finding the rationale of Gross equally
applicable to the retaliation provision, the Supreme Court concluded that
a but-for test for retaliation under Title VII was proper. Id. at ___, 133
S. Ct. at 2533. Interestingly, by its “structural” interpretation, the
Supreme Court majority used the Civil Rights Act of 1991—which was
designed to provide additional protections—to narrow protections under
the retaliation provision of Title VII.
The majority also offered a pragmatic justification for the but-for
test. Citing increases in the number of retaliation claims with the EEOC,
the majority stated that it was of “central importance” to the judicial
system to limit the number of claims. Id. at ___, 133 S. Ct. at 2531.
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According to the majority, if the Court used a motivating-factor standard,
frivolous claims would increase and judicial resources would be diverted
from genuine efforts to combat discrimination. Id. at ___, 133 S. Ct. at
2531–32.
Justice Ginsburg—joined by Justices Breyer, Kagan, and
Sotomoyor—dissented. Id. at ___, 133 S. Ct. at 2534 (Ginsburg, J.,
dissenting). Justice Ginsberg maintained that “retaliation for
complaining about discrimination is tightly bonded to the core
prohibition [of discrimination] and cannot be disassociated from it.” Id.
Justice Ginsburg noted with irony that the majority utilized a statutory
revision designed to strengthen the Civil Rights Act to weaken it in
retaliation claims. Id. at ___, 133 S. Ct. at 2540–41. Justice Ginsburg
argued that the 1991 Amendment to the Civil Rights Act applied to “any
employment practice,” a phrase broad enough to include retaliation
claims. Id. at ___, 133 S. Ct. at 2539. She rejected the conservation-of-
resources argument, declaring that the majority was blinded by “a zeal to
reduce the number of retaliation claims filed against employers.” Id. at
___, 133 S. Ct. at 2547.
D. State Caselaw on Causation Standard for Retaliation
Claims.
1. Causation test on generally applicable discrimination. The vast
majority of state courts have generally adopted a version of Price
Waterhouse for status-based discrimination claims. For instance, in
Harvard v. Bushberg Brothers, Inc., the New Jersey court emphasized
that discrimination on the basis of sex is shown if sex played at least a
part and was a causal factor in the failure of the complainant to be
promoted. 350 A.2d 65, 67 (N.J. Super. Ct. 1975). In Navy v. College of
the Mainland, a Texas court noted some division in the federal cases
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about required causation, but ultimately adopted a motivating-factor test
based on the plain meaning of Texas law. 407 S.W.3d 893, 899 & n.3
(Tex. App. 2013).
2. Causation test regarding retaliation. State courts have adopted
a wide range of tests for claims based on retaliatory conduct by an
employer. They range from the least demanding a-factor test to the most
demanding but-for test.
In VECO, Inc. v. Rosebrock, the Alaska Supreme Court considered
the standard for causation in a retaliation case. 970 P.2d 906, 920
(Alaska 1999). The Alaska court noted that under Price Waterhouse,
“because” meant a “motivating part in an employment decision” and held
that a plaintiff was required to meet the same test in a retaliation case
under Alaska law. Id. In Mole v. University of Massachusetts, the
Massachusetts court also considered causation in a retaliation case. 814
N.E.2d 329, 338 (Mass. 2004). The Massachusetts court stated the
plaintiff must show that “a causal connection existed between the
protected conduct and the adverse action.” Id. at 339; see also Hollins v.
Federal Nat’l Mortg. Ass’n, 760 A.2d 563, 579 (D.C. 2000).
In Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, the Maryland
court considered the proper causation test in a retaliatory discharge
case. 17 A.3d 676, 686 (Md. Ct. App. 2011). The Maryland court
adhered to a motivating-factor test in the retaliation context. Id. The
Maryland court noted that in Price Waterhouse, the Supreme Court
expressly rejected a but-for test for status discrimination, quoting Price
Waterhouse for the proposition that to construe the words “because of”
as a short hand for “but for” is “to misunderstand them.” Id. at 685.
The Maryland court cited the Supreme Court’s handiwork in Desert
Palace for the proposition that a motivating factor was sufficient to
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establish causation in a Title VII status-classification claim. Id. (citing
Desert Palace, 539 U.S. 90, 123 S. Ct. 2148).
Similarly, in Mele v. Hartford, the Connecticut Supreme Court
considered the question of what a plaintiff must show in the context of a
claim that the employer retaliated because of the plaintiff’s assertion of
his right to workers’ compensation benefits. 855 A.2d 196, 206 (2004).
The Connecticut court held the plaintiff must show that retaliatory
motive “played a part” in the adverse employment action. Id. at 211.
Consistent with Mele, a Connecticut trial court expressly declined to
follow the Nassar and Gross cases. Gonska v. Highland View Manor, Inc.,
No. CV126030032S, 2014 WL 3893100, at *7 (Conn. Super. Ct. June 26,
2014). Instead, the Connecticut court adopted the McDonnell Douglas
burden-shifting approach, coupled with the more lenient motivating-
factor standard, which only requires a showing that a retaliatory motive
contributed or played a part in the adverse action. Id.
Missouri courts have developed a contributing-factor test for
causation in retaliation cases. See Turner v. Kan. City Pub. Sch., 488
S.W.3d 719, 723 (Mo. Ct. App. 2016); Williams v. Trans States Airlines,
Inc., 281 S.W.3d 854, 866 (Mo. Ct. App. 2009); McBryde v. Tienour Sch.
Dist., 207 S.W.3d 162, 170 (Mo. Ct. App. 2007). It is not entirely clear
what “contributing” means or how it adds to the analysis.
Some states have adopted a substantial-factor test. For instance,
in Allison, the Washington Supreme Court adopted a substantial-factor
test for retaliation claims under the Washington Human Rights Act. 821
P.2d at 38. In rejecting the but-for test, the Washington Supreme Court
emphasized the legislative instruction that Washington courts provide a
liberal construction of the Act. Id. at 37. As a result, the Washington
Supreme Court noted the local statute differed from Title VII, which did
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not contain a liberal-construction directive. Id. at 38. The Washington
Supreme Court concluded that a but-for causation standard would put
an unrealistic burden on plaintiffs, limiting the ability of many plaintiffs
to assert antidiscrimination claims. Id. at 42. On the other hand, the
court rejected a “to any degree” standard advocated by the plaintiff. Id.
According to the Washington court, even a slight retaliatory animus
could be the basis of employer liability. Id. at 42. The Washington court
characterized its substantial-factor test as an intermediate one. Id.; see
also Rymal v. Baergen, 686 N.W.2d 241, 249 (Mich. Ct. App. 2004)
(stating to establish causation in retaliation case, plaintiff must show
illegal action was “a significant factor” in adverse action).
In the above substantial-factor cases, it is not entirely clear how
stringent the test is. In Lacasse v. Owen, the Oregon court suggests that
the substantial-factor test is about the same as a but-for test. 373 P.3d
1178, 1183 (Or. Ct. App. 2016). This view, of course, is in variance with
the Allison court, which interpreted the substantial-factor test as falling
well short of the but-for test. See 821 P.2d at 85.
The Supreme Court of California considered the standard for
retaliation claims in Harris v. Santa Monica, 294 P.3d 49, 66 (Cal. 2013).
The Harris court developed a substantial-motivating-factor or -reason
test. Id. The court drew a distinction between a substantial-motivating
factor and a motivating factor. Id. According to the court, the
substantial-motivating-factor test ensured that liability would not be
imposed “on evidence of mere thoughts or passing statements unrelated
to the disputed employment decision.” Id.; see Alamo v. Practice Mgmt.
Info. Corp., 161 Cal. Rptr. 3d 758, 769 (Ct. App. 2013) (reversing trial
court judgment when instruction required a motivating factor instead of
a substantial-motivating factor). The court further decided that if an
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employer demonstrated the decision would have been made in any event,
that would not be a complete defense, but the plaintiff would still be
entitled to injunctive relief and attorney’s fees. 294 P.3d at 68. In other
words, the court adopted, through judicial decision, the approach in the
Civil Rights Act of 1991 modifying Price Waterhouse. See also King v.
Cowboy Dodge, Inc., 357 P.3d 755 (Wyo. 2015) (rejecting Nassar and
adopting a “substantial and motivating” test, borrowed largely from
workers’ compensation retaliation cases).
Some state courts, however, have adopted the very stringent but-
for test for retaliation claims. For example, in Ashbury University v.
Powell, the Kentucky Supreme Court summarized the majority argument
in Nassar and accepted it under Kentucky law. 486 S.W. 3d 240, 254–
55 (Ky. 2016). Similarly, in Navy, the court declared, with little analysis,
that there must be a substantial factor, and not just a causal link,
supporting any retaliation claim. 407 S.W.3d at 899; see also Wholf v.
Tremco Inc., 26 N.E.3d 902, 908 (Ohio Ct. App. 2015) (noting Ohio civil
rights statute “modeled after Title VII” and embracing the reasoning of
the Nassar majority). In Gorree v. United Parcel Service, Inc., a Tennessee
appellate court applied the but-for test of Nasser in a retaliation case,
noting the legislature in Tennessee intended Tennessee law “to be
coextensive with federal law.” 490 S.W.3d 413, 439 (2015). None of
these cases discussed the impact of the 1991 Civil Rights Act nor the
unique legislative history behind Title VII compared to state civil rights
statutes.
E. Iowa Caselaw on Causation Under ICRA.
1. Generally applicable causation standard for status-based
discrimination. Our most recent exploration of causation in a claim of
status-based discrimination was DeBoom v. Raining Rose, Inc., 772
135
N.W.2d 1, 13 (Iowa 2009). In DeBoom, we emphasized the causation test
for status-based discrimination under the ICRA was not “the determining
factor” test but rather “a determining factor” test. Id. at 13–14 (emphasis
added). We further noted it was sufficient to show that status-based
discrimination “played a part in the Defendant’s later actions toward
Plaintiff.” Id. at 13.
2. Causation in retaliation cases. In Hulme v. Barrett (Hulme II),
480 N.W.2d 40, 42 (1992), we briefly considered the question of proof in
a retaliatory discharge case. In Hulme II, we declared in a brief
paragraph that the causation standard for retaliation claims under the
ICRA was a “high one.” Id. Citing one case from the Sixth Circuit but
offering no analysis, we declared the “causal connection” required for a
retaliation claim must be a “significant factor” motivating the adverse
employment decision. Id. Notably, we used both the term “significant”
and the term “motivating” to describe the causation requirement. Id.
After having stated that causation must be a significant factor motivating
the adverse employment decision, we then cited another case from the
Eighth Circuit applying a substantial-factor test. Id.; see Womack, 619
F.2d at 1297.
We returned to the causation question for retaliation claims in City
of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532 (Iowa
1996). The brief discussion of causation in City of Hampton was dicta as
no argument regarding level of causation was presented to the Iowa Civil
Rights Commission. See id. at 535–36. In City of Hampton, we cited
Hulme II for the proposition that in retaliation cases, causation is
established by a “significant factor” motivating the adverse employment
decision. Id. We did not cite the motivating-factor language in Hulme II.
We again cited the Womack case, but this time for the proposition that
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the Eighth Circuit had established a but-for test and not a substantial-
factor test as suggested in Hulme II. Id. We also cited, without
elaboration, a Sixth Circuit case under Michigan law supporting a
significant-factor standard. Id. (citing Polk v. Yellow Freight Sys., Inc.,
801 F.2d 190 (6th Cir. 1986)).
In Hulme II and City of Hampton, we did not review the underlying
statutory text of the ICRA. We did not engage in a reasoned discussion
of the available interpretative options. We did not consider the impact of
Iowa Code section 216.18(1) requiring that we “broadly interpret the act
to effectuate its purposes.” In fact, there is no analysis at all, only
ambiguous and inconsistent declarations regarding a substantial-factor
test and a motivating-factor test.
F. Analysis. I begin the discussion of causation with
consideration of the proper level of causation required to sustain a
retaliation claim. Under the unified ICRA, the legislature has used the
same term for causation for both status-based discrimination and
retaliation claims, namely, the familiar “because” and “because of”
language. Iowa Code §§ 216.6(1)(a), .11(2). Two conclusions may be
drawn from the use of the “because” and “because of” causation
language in both the status-based and the retaliation sections of the
ICRA.
First, there is a strong textual argument that the level of causation
for status-based claims and retaliation claims should be the same. We
have frequently said that when the same term appears multiple times in
the same statute, it should have the same meaning. State v. Paye, 866
N.W.2d 1, 7 (Iowa 2015); accord Carson v. Roediger, 513 N.W.2d 713,
716 (Iowa 1994); State v. Johnson, 604 N.W.2d 669, 672 (Iowa Ct. App.
1999). This familiar rule has been applied repeatedly in the context of
137
civil rights statutes. See, e.g., EEOC v. Fry’s Elecs., Inc., 770 F. Supp. 2d
1168, 1171 (W.D. Wash. 2011); Patino v. Birken Mfg. Co., 41 A.3d 1031,
1041 (Conn. 2012); San Antonio v. Baer, 100 S.W.3d 249, 253 (Tex. App.
2001); see generally 3B Norman J. Singer & Shambie Singer, Statutes
and Statutory Construction § 76.9, at 205 & n. 11 (7th ed. 2011).
Further, there is no policy reason to question the legislative
judgment to use nearly identical causation language, thereby implying
the same level of causation for retaliation claims as well as for status-
based discrimination. As indicated above, retaliation claims are not
second-class citizens, but are critical to effective enforcement of the
ICRA. Policy reasons do not provide a basis for overriding the
legislature’s textual choice.
Indeed, status-based discrimination and retaliation claims are two
halves of the same walnut. The success of each depends upon the
efficacy of the other. Nassar, 570 U.S. at ___, 133 S. Ct. at 2531.
Retaliation for complaining about discrimination is tightly bonded to the
core prohibition and cannot be disassociated from it. Id. Thus, in
addition to the textual argument based upon common use of the
because-of causation standard in both status-based discrimination
claims and retaliation provisions under the ICRA, there is also a strong
functional argument for utilizing the same legal standard. Indeed, the
United States Supreme Court, prior to its innovation in Nassar,
repeatedly held that retaliation was a type of status discrimination. See
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 125 S. Ct. 1497,
1504 (2005).
This approach represents a refinement, perhaps, of the standard
for retaliation claims under the ICRA used in Hulme II and City of
Hampton. In these cases, we applied a substantial-factor test for
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retaliation claims under the ICRA. City of Hampton, 554 N.W.2d at 535–
36; Hulme II, 480 N.W.2d at 43. I do not believe there is a great
difference between the substantial-factor test in Hulme II and City of
Hampton and the motivating-factor or played-a-part test in DeBoom. But
to the extent there is any distance between the two standards, this case
presents an opportunity to close that distance.
By adopting a unified approach to status-based and retaliation
causation, we would avoid juror confusion. We would avoid what Justice
Ginsberg noted would be the result in Nassar, namely, that different
causation standards would cause jurors to “puzzle over the rhyme or
reason for the dual standards.” 570 U.S. at ___, 133 S. Ct. at 2535.
Such a double standard would be “virtually certain to sow confusion” in
its practical application. Id. at ___, 133 S. Ct. at 2546. The different
standards are made even more problematic by the fact that the status-
based and retaliatory conduct will have an overlapping or “symbiotic
relationship,” as Justice Ginsberg suggested. Id. at ___, 133 S. Ct. at
2535. Retaliation is simply another form of sex discrimination. Jackson,
544 U.S. at 174, 125 S. Ct. at 1504. I would thus conclude the
motivating-factor or played-a-part test that applies for status-based
discrimination should also apply in retaliation claims under the ICRA.
In reaching this conclusion, I note the Nassar case has no bearing
in the interpretation of the ICRA. The legislative history behind the
status-classification and retaliation provisions of Title VII discussed in
Nassar is fundamentally different than the legislative history behind the
ICRA. Nassar relied extensively on the difference in congressional
language between causation for status-based claims and causation for
retaliation claims that arose after the enactment of the Civil Rights Act of
1991. 570 U.S. at ___, 133 S. Ct. at 2529 (majority opinion).
139
In light of the Civil Rights Act of 1991, the text of Title VII is now
fundamentally different than the text of the ICRA with respect to the
causation requirements in status-based and retaliation cases. Under
Title VII, the motivating-factor test was explicitly incorporated into
status-based discrimination, but the same change was not introduced
into the retaliation section of Title VII. Here, our caselaw has defined
causation in the status-based discrimination clause as being a
motivating factor and the same causation language is used in the
retaliation section of the ICRA. The reasoning of Nassar is thus
completely inapplicable here.
Aside from the markedly different legislative history, I would reject
Nassar for other reasons. In particular, I am unpersuaded by the notion
that higher standards for a retaliation claim are required in light of the
number of complaints filed with the EEOC. At the outset, it is odd that a
provision of substantive law should be affected by the number of
administrative complaints made to an agency responsible under a
statute to adjust such claims. If the number of claims decreases to a
trickle, does that provide a basis for lessening the substantive
standards? Can it be that a substantive legal standard expands and
contracts based upon its use?
Further, it makes no sense to limit relief for very substantial and
powerful claims, like those in Nassar, in order to also limit frivolous
claims. Other tools are available. A charge of discrimination may be
filed under the ICRA only under penalty of perjury. A court may award
attorneys’ fees as a sanction for claims brought in bad faith. Attorneys
who file false claims are subject to ethical sanctions. See generally
Sandra F. Sperino & Suja A. Thomas, Fakers and Floodgates, 10 Stan. J.
C.R. & C.L. 223, 228 (2014). Further, there is no evidence that a
140
heightened standard of causation would deter false claims. A person
willing to file a false claim is not likely to be affected by a higher
substantive causation standard.
Further, the mere existence of an increase in EEOC claims is not a
powerful empirical tool. The executive branch, through an amicus brief
filed by the United States Department of Justice, did not advance the
argument and supported the lower motivating-factor standard for
discrimination claims. See Brief for the United States as Amicus Curiae
Supporting Respondent at 7, Nassar, 570 U.S. ___, 133 S. Ct. 2517 (No.
12-484), 2013 WL 1462056, at *7. Further, the EEOC—through its
guidelines—advocated a motivating-factor standard. U.S. Equal Emp’t
Opportunity Comm’n, EEOC Compliance Manual: EEOC Directives
Transmittal No. 915.003 (May 20, 1998), https://web.archive.org/
web/20040109231351/https://www.eeoc.gov/policy/docs/retal.html
[hereinafter EEOC Manual 1998 Update] (replacing section 614 in the
1991 Manual); see also 2 U.S. Equal Emp’t Opportunity Comm’n, EEOC
Compliance Manual § 614.3(e), at 614–10 (Dec. 1, 1991) (stating the
protected action must be “at least a factor” in the retaliation). Thus, the
agency principally responsible for dealing with workplace discrimination,
the EEOC, did not raise the argument itself about filing of frivolous
claims and siphoning of its resources. 32
The majority in Nassar believed it was in a better position to judge
the administrative impact of substantive retaliation law on filings. See
32See also U.S. Equal Emp’t Opportunity Comm’n, Theories of Discrimination:
Intentional and Unintentional Employment Discrimination A–19 (May 1995) (“The
retaliation provisions [of the EPA, ADA, and ADEA] provide exceptionally broad
protection to individuals who file charges or otherwise aid the EEOC’s enforcement
function. It is the EEOC’s policy to expedite the investigation of retaliation charges and
seek injunctive relief, since it has the unique interest of preserving the integrity of its
investigative process and preventing a chilling effect on the willingness of individuals to
protest discriminatory conduct.”).
141
570 U.S. at ___, 133 S. Ct. at 2531–32. Yet, the Nassar Court had no
evidence of the reasons for the increase in retaliation claims. The
increase in claims may reflect an increased awareness of the availability
of remedies. And, the failure to report civil rights claims for fear of
retaliation may well continue to be an intractable problem that should
not be exacerbated by imposing a higher substantive law standard on
causation. See Deborah L. Brake & Joanna L. Grossman, The Failure of
Title VII as a Rights-Claiming System, 86 N.C. L. Rev. 859, 897–900
(2008); Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18, 25–26 (2005)
[hereinafter Brake, Retaliation]; Laura Beth Nelson & Robert L. Nelson,
Rights Realized? An Empirical Analysis of Employment Discrimination
Litigation as a Claiming System, 2005 Wis. L. Rev. 663, 673–75 (2005).
As noted in Crawford v. Metropolitan Government of Nashville & Davidson
County, “[f]ear of retaliation is the leading reason why people stay silent
instead of voicing their concerns about bias and discrimination.” 555
U.S. 271, 279, 129 S. Ct. 846, 852 (2009) (quoting Brake, Retaliation, 90
Minn. L. Rev. at 20). The higher standard is inconsistent with the
unfettered access to the remedial system espoused in Smith v. Jackson,
544 U.S. 228, 233, 125 S. Ct. 1536, 1540–41 (2005).
In the end, once the Nassar rhetoric is examined, the majority
appears to have been motivated by “zeal to reduce the number of
retaliation claims filed against employers.” 570 U.S. at ___, 133 S. Ct. at
2547 (Ginsberg, J., dissenting). The lowered protection from retaliation
will tend to defeat the early reporting of harassment claim and their
prompt adjustment. Ernest F. Lidge, III, The Necessity of Expanding
Protection from Retaliation for Employees Who Complain About Hostile
Environment Harassment, 453 U. Louisville L. Rev. 39, 56 (2014). The
approach in Nassar is inconsistent with the observation in Burlington
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Northern that “[i]nterpreting the antiretaliation provision to provide broad
protection from retaliation helps ensure the cooperation upon which
accomplishment of the Act’s primary objective depends.” 548 U.S. at 67,
126 S. Ct. at 2414. And certainly the flavor of the majority opinion in
Nassar does not reflect the command of Iowa Code section 218.1(2) to
broadly construe provisions of the ICRA.
Based on the above reasoning, we conclude the reasoning of
Nassar should be rejected under the ICRA. The “because of” language in
the status-based discrimination provision of the ICRA should be
interpreted the same as the “because of” language for retaliation claims.
We have not used identical language in our past cases dealing with
causation in retaliation cases. In Hulme II, 480 N.W.2d at 43, and City of
Hampton, 554 N.W.2d at 535, we used the substantial-factor language,
but in DeBoom, 772 N.W.2d at 13, we employed the motivating-factor or
played-a-part test.
There are two ways to address the apparent difference in the
language of our cases. One is to simply state that the difference in
language in the cases inconsequential and that the instruction in this
case was sufficient on the law. That is the position taken by a
commentator after review of the disparate federal caselaw of retaliation
causation. Martin J. Katz, The Fundamental Incoherence of Title VII:
Making Sense of Causation in Disparate Treatment Law, 94 Geo L.J. 489,
at 507–10 (2006) (indicating there is no difference between “substantial
factor” and “motivating factor” formulations but, as between the two,
endorsing an “a factor,” “a role,” or “a motivating factor” formulation.).
To the extent there is a difference, however, we would go with our more
recent formulation in DeBoom, 772 N.W.2d at 13, where the issue of level
of causation was a contested issue, and not with the older approach in
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Hulme II, 480 N.W.2d at 43, and City of Hampton, 554 N.W.2d at 535,
where the question of level of causation was not disputed by the parties.
The DeBoom causation test, to the extent it is different than the
approach in Hulme II and City of Hampton, is more protective of the
channels of communication that are so essential to the effective
enforcement of the ICRA.
V. Instructions Regarding “Materially Adverse Action” in
Retaliation Cases.
A. Overview of Issue. Neither the ICRA nor federal statute
requires a plaintiff make a showing of a “materially adverse action” in
order to support a retaliation claim. Nonetheless, the United States
Supreme Court has grafted such a requirement onto Title VII and many
courts have followed the Supreme Court’s lead. See Burlington Northern,
548 U.S. at 68, 126 S. Ct. at 2415 (“In our view, a plaintiff must show
that a reasonable employee would have found the challenged action
materially adverse . . . .”); Rachel K. Alexander, Taking the Detour Around
Defending Protected Activity: How Burlington Northern v. Santa Fe
Railway Co. v. White Unnecessarily Complicates Litigation of Retaliation
Claims, 27 Rev. Litig. 333, 350–52 (2008) (describing that the materially-
adverse-action standard has been read into state antidiscrimination
statutes by courts).
The parties in this case do not contest the basic proposition that a
plaintiff in a retaliation case must show materially adverse action. The
question is, instead, whether the trial court’s instructions accurately
described adverse action necessary to support a retaliation claim under
the ICRA.
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B. Challenged Trial Court Instructions. The district court’s
instruction defined “adverse actions” required to support a retaliation
claim under the ICRA as follows:
[A]ny action which has material consequences to an
employee. It is anything that might dissuade a reasonable
person from making or supporting an allegation of
discrimination or harassment.
It includes but is not limited to such employment
actions as constructive discharge, reprimands or other
threats of reprimands, a change in opportunities, false
accusations or complaints, being investigated, being placed on
performance improvement plan, being placed on probation or
other actions which adversely affect or undermine the position
of the employee. It also includes an employer seeking out
negative feedback on an employee or condoning or
encouraging other employees to complain about her. You
should judge whether an action is sufficiently adverse from
the point of view of a reasonable person in the plaintiff’s
positions.
(Emphases added.)
HES had offered the following instruction on adverse action:
[A]n “adverse employment action” is an action that
detrimentally affects the terms, conditions, or privileges or
employment. Changes in duties or working conditions that
cause no materially significant disadvantage to the employee
are not adverse employment actions. It includes, but is not
limited to, employment actions such as termination of
employment, failure to promote, or any action that would
discourage a reasonable employee from making a complaint
of harassment. Giving an employee a performance
improvement plan or negative employment review is not
“adverse employment action” unless they are later used as a
basis to alter the employee’s terms or conditions of
employment in a detrimental way. Both the action and its
context must be examined.
C. Positions of the Parties. HES asserts the district court’s
instruction was inaccurate because it includes actions which do not
“materially significantly disadvantage” the employee. According to HES,
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no court has ever found the actions italicized in the instructions to
amount to an adverse employment action.
Haskenhoff notes the first paragraph of the instruction provides
that in order to be an adverse action, the action must have “material
consequences” for the employee. Further, the jury found Haskenhoff was
constructively discharged. Thus, the jury plainly found there was a
legally sufficient adverse action by the employer. As a result, to the
extent the instruction is flawed, Haskenhoff argues it is harmless.
D. Federal Caselaw and EEOC Authority on Scope of
“Materially Adverse Action” in the Context of Retaliation Claims.
1. Introduction. With respect to retaliation, Title VII states that it
is an unlawful employment practice for an employer “to discriminate
against any of his employees . . . because he has opposed any practice
made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any manner
in an investigation proceeding or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). The phrase “to discriminate” is not defined by the
statute. Congress left that question for the courts. Unlike the status-
discrimination provision of Title VII, however, the retaliation provision
does not contain the phrase “terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e-2(a). The presence of the phrase
“terms, conditions, or privileges of employment” in the status-
discrimination section of Title VII, when it is excluded in the retaliation
provision, gives rise to the inference that Congress has made a deliberate
choice.
2. EEOC 1998 guidelines. The EEOC has confronted the question
of what constitutes adverse action sufficient to support a retaliation
claim under Title VII in revisions to its compliance manual issued in
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1998. See EEOC Manual 1998 Update. According to the EEOC, while
the “most obvious types of retaliation are denial of promotion, refusal to
hire, denial of job benefits, demotion, suspension, and discharge”
retaliation can also include “threats, reprimands, negative evaluations,
harassment, or other adverse treatment.” Id.; see EEOC v. Bd. of
Governors of State Colls. & Univs., 957 F.2d 424 (7th Cir. 1992);
Christopher v. Strouder Mem’l Hosp., 936 F.2d 870, 873–74 (6th Cir.
1991); Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991).
The EEOC, however, rejected the “ultimate employment action”
test adopted by the Eighth Circuit in Ledergerber v. Strangler, 122 F.3d
1142 (8th Cir. 1997), and the “terms and conditions of employment” test
embraced by the Fourth Circuit in Munday v. Waste Management of
North America, 126 F.3d 239 (4th Cir. 1997). EEOC Manual 1998
Update. According to the EEOC, such tests were “unduly restrictive.” Id.
While the EEOC recognized that “petty slights and trivial annoyances are
not actionable,” it stressed the degree of harm suffered by the individual
“goes to the issue of damages, not liability.” Id. (quoting Hashimoto v.
Dalton, 118 F.3d 671, 676 (9th Cir. 1997)).
The EEOC justified its approach based on text and policy. On text,
the EEOC emphasized that while the status discrimination of Title VII
states it is unlawful to discriminate against a person with respect to
“terms, conditions, or privileges of employment,” the retaliation provision
of Title VII has no such limitation. EEOC Manual 1998 Update; see 42
U.S.C. § 2000e-2.
On policy, the EEOC emphasized the primary purpose of the
antiretaliation provisions is to “maintain[ ]unfettered access to the
statute’s remedial mechanisms.” EEOC Manual 1998 Update; see also
Robinson v. Shell Oil Co., 519 U.S. 337, 345, 117 S. Ct. 843, 848 (1997).
147
According to the EEOC, an interpretation of Title VII “that permits some
forms of retaliation to go unpunished would undermine the effectiveness
of the EEOC statutes and conflict with the language and purpose of the
anti-retaliation provisions.” EEOC Manual 1998 Update; see generally
Joel A. Kravetz, Deterrence v. Material Harm: Finding the Appropriate
Standard to Define an “Adverse Action” in Retaliation Claims Brought
Under the Applicable Equal Employment Opportunity Statutes, 4 U. Pa. J.
Lab. & Emp. L. 315, 355–65 (2002).
3. The Burlington Northern case. Prior to the seminal United
States Supreme Court case of Burlington Northern, the federal courts
splintered on the question of what a plaintiff must show to support a
retaliation claim under Title VII.
In Ray v. Henderson, the Ninth Circuit outlined the differing
approaches to retaliation claims in the various circuits. 217 F.3d 1234,
1241–42 (9th Cir. 2000). According to Ray, the First, Seventh, Tenth,
Eleventh, and D.C. Circuits all “take an expansive view” of the type of
actions that can be considered adverse employment actions. Id. at 1241;
see Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998);
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996); Corneveaux v.
CUNA Mut. Ins. Grp., 76 F.3d 1498, 1507 (10th Cir. 1996); Wyatt v.
Boston, 35 F.3d 13, 15–16 (1st Cir. 1994); Passer v. Am. Chem. Soc., 935
F.2d 322, 330–31 (D.C. Cir. 1991). In contrast, Ray cited the Second
and Third Circuits as holding adverse action is something that
“materially affects the terms and conditions of employment.” 217 F.3d at
1242; see Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1977);
Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997). Finally, the Ray
court noted the Fifth and Eighth Circuits had adopted the most
restrictive test, namely, the “ultimate employment action” test which
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required actions such as hiring, firing, promoting, and demoting to
support a retaliation claim. 217 F.3d at 1242; see Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Ledergerber, 122 F.3d at
1144.
In 2006, the Supreme Court entered the fray in Burlington
Northern, 548 U.S. at 53, 126 S. Ct. at 2405. Under Burlington Northern,
a plaintiff must show an employment action is materially adverse, “which
in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id. at 68, 126
S. Ct. at 2415. In so concluding, the court rejected the “terms,
conditions, or benefits” and the “ultimate employment decision”
standards percolating through the federal courts in the Second, Third,
Fifth, and Eighth Circuits. Id. at 61–63, 126 S. Ct. at 2411–12.
In Burlington Northern, the Supreme Court adopted a general,
functional approach to the retaliation provision of Title VII. See id. at 68,
126 S. Ct. at 2415. The Burlington Northern Court tied material adversity
directly to the purpose of the retaliation provision of Title VII—
encouraging unfettered access to Title VII. Id. at 62–63, 126 S. Ct. at
2411–12. In determining whether the employer’s action “might well have
dissuaded a reasonable worker from making or supporting a charge of
discrimination,” the Court instructed that the question be determined
from “the perspective of a reasonable person in the plaintiff’s position
under all the circumstances.” Id. at 71, 126 S. Ct. at 2417. Under
Burlington Northern, trial courts are required to examine the specific facts
from someone in the plaintiff’s position, a highly individualized inquiry.
See id.
Thus, as the Burlington Northern Court repeatedly emphasized,
“context matters” because an “act that would be immaterial in some
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situations is material in others.” Id. at 69, 126 S. Ct. at 2416. The
Supreme Court emphasized “the significance of any given act of
retaliation will often depend upon the particular circumstances.” Id. The
inquiry is fact specific to the workplace and to the individual pressing the
retaliation claim. Id. The plain implication is that except in the most
marginal of cases, because of their fact intensive nature, retaliation
claims should survive summary judgment.
4. Post-Burlington Northern federal caselaw. Burlington Northern
was something of a bombshell in the employment law world. As a
general matter, there seemed to be little question that under Burlington
Northern, more retaliation cases would survive summary judgment.
Further, most of the post-Burlington Northern federal caselaw recognized
that in determining whether a plaintiff has suffered disparate treatment,
the “terms, conditions, and privileges of employment” test was not
applicable in retaliation cases. The lower federal courts widely came to
recognize that in retaliation cases, a lesser standard applies. See Powell
v. Lockhart, 629 F. Supp. 2d 23, 41 (D.D.C. 2009) (holding that placing
employee on performance improvement plan was insufficient to support
disparate treatment claim, but could support retaliation claim because of
lesser standard).
Burlington Northern emphasized the proper test for a retaliation
case was “material adverse action” which “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” 548 U.S. at 68, 126 S. Ct. at 2415. This feature of
Burlington Northern appears to be lost in some of the cases, which seem
to require tangible impact on “terms, conditions, and privileges of
employment.” See Sutherland v. Mo. Dep’t of Corrs., 580 F.3d 748, 752
(8th Cir. 2009) (rejecting adverse employment action when plaintiff “had
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no reductions in pay, salary, benefits, or prestige”). And, in other cases,
the test applied by the courts seems to be too high. For example, in
Deleon v. Kalamazoo County Road Commission, the Sixth Circuit
suggested in a retaliation case that the question was whether a
reassignment without loss of pay was “objectively intolerable” to a
reasonable person. 739 F.3d 914, 919 (6th Cir. 2014). This formulation
seems to be more demanding than a Burlington Northern standard where
the plaintiff must show that a reasonable person “might well have been
deterred” from supporting or filing a charge.
Many post-Burlington Northern cases recognize that the totality of
the circumstances must be considered when the “might well have
deterred” standard is applied and bright-line declarations about whether
certain actions were sufficient or insufficient were generally
inappropriate under Burlington Northern. For example, following
Burlington Northern, the Fifth Circuit in Thompson v. Waco, held that a
change in job responsibilities did not automatically qualify as an adverse
impact, but it could be adverse action depending upon a jury’s view of
the facts. 764 F.3d 500, 504–05 (5th Cir. 2014).
A related concept is that certain actions individually might not be
sufficient, but cumulatively such actions may arise to adverse action for
purposes of supporting a retaliation claim. For example, in Sanford v.
Main Street Baptist Church Manor, Inc., the Sixth Circuit recognized that
although some of the incidents might not rise to the level of adverse
action, “the incidents taken together might dissuade a reasonable worker
from making or supporting a discrimination charge.” 327 F. App’x 587,
599 (6th Cir. 2009); see also Vega v. Hempsted Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015) (finding combination of being assigned absent
students, temporary paycheck reduction, and failure to notify of
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curriculum claim cumulatively amount to “material adverse action”);
Alvarado v. Fed. Express Corp., 384 F. App’x 585, 589 (9th Cir. 2010)
(holding delayed paychecks, denial of personal time, criticism of work
performance, and shift change were adverse actions); Shannon v.
Bellsouth Telecomm., Inc., 292 F.3d 712, 715–16 (11th Cir. 2002) (stating
reassignment alone is not adverse action, but reassignment, together
with denial of overtime and allocation of a more difficult assignment in
an unairconditioned van, amounted to adverse action); Ridley v. Costco
Wholesale Corp., 217 F. App’x 130, 135 (3d Cir. 2007) (holding while jury
verdict finding demotion was not retaliatory, combination of other events
after demotion, including transfer to warehouse, counseling notices for
minor incidents, and failure to investigate these incidents satisfied
Burlington Northern test); see generally Joan M. Savage, Adopting the
EEOC Deterrence Approach to the Adverse Employment Action Prong in
Prima Facie Case for Title VII Retaliation, 46 B.C. L. Rev. 215, 235–36
(advocating broad case-by-case approach).
Burlington Northern recognized that petty slights, minor
annoyances, and simple lack of good manners is not enough to establish
material adverse action to support a retaliation claim. Some federal
courts have regarded this declaration as an invitation to take a laundry-
list approach and declare, as a matter of law, that certain types of
actions never amount to material adverse actions. Other federal cases,
however, are more sensitive to context.
5. EEOC August 2016 enforcement guidelines on retaliation and
related issues. In August 2016, the Equal Employment Opportunities
Commission issued its “Enforcement Guidelines on Retaliation and
Related Issues,” superseding its previous guidance in 1998. See EEOC
Enforcement Guidance on Retaliation and Related Issues (Aug. 25, 2016),
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https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm
[hereinafter EEOC Enforcement Guidance]. The new guidelines generally
embraced Burlington Northern and provided the commission’s view of
retaliation claims in a post-Burlington Northern world. Id. II.B.1.
Among other things, the EEOC emphasized that combinations of
incidents could cumulatively amount to a material adverse action even if
the individual incidents, considered alone, might not qualify. Id. The
EEOC further emphasized that under Burlington Northern, potential
retaliatory incidents must be considered in context and not in isolation.
Id.
The EEOC addressed the question of what type of actions might
rise to the level of a material adverse action. Id. II.B.2. According to the
EEOC, “[t]he most obvious types of adverse actions are denial of
promotion, refusal to hire, denial of job benefits, demotion, suspension,
and discharge.” Id. But the EEOC went on to say,
Other types of adverse actions may include work-related
threats, warnings, reprimands, transfers, negative or lowered
evaluations, transfers to less prestigious or desirable work or
work locations, and any other types of adverse treatment
that in the circumstances might well dissuade a reasonable
person from engaging in protected activity.
Id.
The EEOC concluded the determination of whether a plaintiff has
made the necessary showing of material adverse action to support a
retaliation claim was fact driven. Id. According to the EEOC,
A fact–driven analysis applies to determine if the challenged
employer action(s) in question would be likely to deter
participation or opposition. To the extent some lower courts
applying Burlington Northern have found that some of the
above-listed actions can never be significant enough to deter
protected activity, the Commission concludes that such a
categorical view is contrary to the context-specific analysis,
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broad reasoning, and specific examples endorsed by the
Supreme Court.
Id.
The EEOC also addressed the question of whether a materially
adverse action required harm to the employee. Id. The EEOC concluded
it did not. Id. According to the EEOC, the degree of harm suffered by the
individual “goes to the issue of damages, not liability.” Id. (quoting
Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997)).
Finally, the EEOC distinguished between the standard required to
prove a hostile environment claim and the standard to show retaliation.
Id. As noted by the EEOC, “[t]he threshold for establishing retaliatory
harassment is different than for discriminatory hostile environment.” Id.
II.B.3.
According to the EEOC, harassment sufficient to support a retaliation
claim does not need to be severe or pervasive enough to alter the terms
and conditions of employment. Id.
E. State Caselaw on Retaliation Requirements. Neither party
cited any state caselaw on the question of what constituted adverse
action sufficient to support a retaliation claim. We have been able to
discern no clear pattern in the state caselaw.
Some state cases recognize the impact of Burlington Northern. For
instance, in Donovan v. Broward County Board of Commissioners, a
Florida court of appeals recognized that Burlington Northern found the
ordinary approach to discrimination cases too limiting in the context of
retaliation claims. 974 So. 2d 458, 461 (Fla. Dist. Ct. App. 2008). The
Donovan court applied the broadened Burlington Northern standard. Id.
Another case that employs Burlington Northern contextualization is
Ellis v. Jungle Jim’s Market, Inc., 44 N.E.3d 1034 (Ohio Ct. App. 2013).
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In Ellis, an employee was transferred from the seafood department into a
bagging position after reporting workplace harassment. Id. at 1052. The
plaintiff produced evidence that the transfer significantly diminished her
job responsibilities and that she would learn fewer skills in the bagging
position. Id. at 1053–54. The Ohio court held that she raised an issue of
fact with respect to whether the transfer amounted to a “material adverse
action” by her employer. Id. at 1054.
Similarly, in Hoffelt v. Illinois Department of Human Rights, a
plaintiff claiming retaliation offered evidence that she was called names
and treated in a demeaning manner, was assigned to a position known
as “a punishment post,” and had her requests for compensatory leave
denied under circumstances in which they were granted in the past. 867
N.E.2d 14, 21 (Ill. Ct. App. 2006). Citing Burlington Northern, the Illinois
court concluded that under the circumstances, she “well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 20.
Another state court has emphasized the need to broadly construe
the retaliation provision in its civil rights legislation. In Albunio v. City of
New York, the court emphasized the retaliation provision would be
construed “broadly in favor of discrimination plaintiffs, to the extent
such a construction is possible.” 847 N.E.2d 135, 137 (N.Y. 2011); see
also Roa v. Roa, 955 A.2d 930, 938 (N.J. Super. Ct. App. Div. 2008)
(adopting Burlington Northern approach). At least one state court,
however, has characterized the Burlington Northern inquiries as
ordinarily posing questions of law. In Montgomery County v. Park, the
Texas Supreme Court held that changes in a job position did not support
a retaliation claim. 246 S.W.3d 610, 615–16 (Tex. 2007).
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F. Iowa Caselaw on “Adverse Employment Action.” We have
considered the meaning of “adverse employment action” 33 in a limited
number of cases. In most of them we have indicated what the vague
term “adverse employment action” might include, not what it excludes.
In the pre-Burlington Northern case of Channon v. United Parcel Service,
Inc., we noted that “[a] wide variety of actions, some blatant, some
subtle,” can qualify as “adverse employment actions.” 629 N.W.2d 835,
863 (Iowa 2001). Indeed, we have indicated that whether an adverse
employment action occurred “will normally depend on the facts of each
situation.” Id. at 862. This fact-specific language is consistent with the
strain in the federal law that recognizes, as did Burlington Northern, that
the determination is to be made under all of the facts and circumstances.
See 548 U.S. at 71, 126 S. Ct. at 2417. We cited with approval cases
that found loss of title and committee assignments, transfers, and
reduction of supervisor status as amounting to “adverse employment
actions.” Channon, 629 N.W.2d at 863–64.
Yet, we have indicated that “[c]hanges in duties or working
conditions that cause no materially significant disadvantages to the
employee are not adverse employment actions.” Id. at 862. Of course,
the Channon formulation that an “adverse employment action” must be a
“materially significant disadvantage,” id., is somewhat circular and not
very helpful. And, it is inconsistent with the Burlington Northern
standard. In Channon, however, we concluded when the plaintiff offered
evidence tending to show she faced ridicule, a constructive demotion,
33Burlington Northern makes it clear that the adverse action might not be
employment related and thus the plaintiff in a retaliation case must show “adverse
action” rather than “adverse employment action.” See 548 U.S. at 57, 126 S. Ct. at
2408. Nonetheless, I will use the nomenclature used by our pre-Burlington Northern
precedents.
156
and open hostility about her lawsuit, the record was sufficient to support
a finding of adverse employment action. Id. at 866.
The next pre-Burlington Northern Iowa retaliation case is Estate of
Harris, 679 N.W2d 673. In that case, the district court rather
remarkably concluded that a punch to the chest delivered by a
supervisor that ultimately killed the employee was not an “adverse
employment action” sufficient to support a retaliation claim. Id. at 676.
We reversed, noting it was for the jury to determine whether the action
was simply an act of machismo or should be considered something more
sinister. Id. at 679.
In our analysis in Estate of Harris, we favorably cited a federal
district court case for the proposition that moving an employee to an
isolated corner might be sufficient to support a retaliation claim. Id. at
678; see Harris v. Richards Mfg. Co., 511 F. Supp. 1193, 1203 (W.D.
Tenn. 1981), aff’d in part and rev’d in part, 675 F.2d 811 (6th Cir. 1982).
We further cited Ray, 217 F.3d 1234, for the proposition that federal
circuit courts were split on how broadly to determine adverse
employment action. 34 Estate of Harris, 679 N.W2d at 679. Nowhere in
Estate of Harris, however, did we describe precisely what the appropriate
standard was for determining an “adverse employment action” for
purposes of a retaliation claim.
34We also cited Farmland Foods for the proposition that materially adverse
employment action embraces a wide variety of facts. 672 N.W.2d at 742. Farmland
Foods involved a claim of a hostile environment, not a retaliation claim. Id. The
substantive standard for establishing a hostile-environment claim is not the same as
that for establishing a retaliation claim. For example, under Title VII, the focus on a
hostile-environment claim is “terms and conditions of employment,” while the focus on
a retaliation claim is whether the action might well reasonably deter an employee from
pursuing a civil rights claim. Burlington Northern, 548 U.S. at 69, 126 S. Ct. at 2415–
16. Yet, the application of both standards generally involve factual inquiries. See
McElroy, 637 N.W.2d at 498–500.
157
Our last retaliatory discharge case is the pre-Burlington Northern
case of Boyle, 710 N.W.2d 741. In Boyle, the district court found against
the plaintiff on the underlying harassment claim and appeared to believe
this resolution rendered the plaintiff’s alternative claim that she was
discharged in retaliation for making her complaint moot. Id. at 750. We
reversed. Id. at 752. In Boyle, however, we did not have occasion to
explore the requirements of retaliatory discharge other than to emphasize
that a retaliatory discharge claim did not depend upon the merits of the
underlying complaint. Id.
On balance, we should recognize that our pre-Burlington Northern
adverse-employment-action cases did not have the benefit of Burlington
Northern’s key insight that the test for material adverse action in the
context of retaliation claim was whether a reasonable person would likely
be deterred from utilizing complaint procedures, and not the familiar
terms, conditions, and privileges of employment test that applies to
disparate treatment cases. See 548 U.S. at 73, 126 S. Ct. at 2417.
Thus, cases like Channon embraced what federal law now recognizes is
the wrong test.
Although our cases reflect superseded federal law, they still
generally recognized the subtlety of the workplace and the need to
consider factual issues related to employment claims in light of the
totality of facts and circumstances. See Channon, 629 N.W.2d at 862.
Our cases further reflect the desirability of jury determinations of
disputed factual issues in the retaliation context. See Estate of Harris,
679 N.W.2d at 678.
G. Discussion. At the outset, we are obliged to construe the ICRA
broadly to effectuate its purposes. Iowa Code § 216.18(1). As has
already been noted, maintaining clear channels for pursuing complaints
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is critical to the regime established by the ICRA. Cf. Robinson, 519 U.S.
at 346, 117 S. Ct. at 848 (stating purpose of retaliation provision to
maintain “unfettered access to statutory remedial mechanisms”).
The parties both accept the notion that we must determine what is
a material adverse action for purposes of a retaliation claim under the
ICRA. I have little hesitance in embracing the approach of Burlington
Northern, the EEOC, and the better reasoned caselaw that the test is
whether a reasonable employer might be deterred from filing a complaint
by the conduct in question. The purpose of a retaliation claim is to keep
the access to the channels of civil rights law clear and open. The test for
retaliation should be tied to its fundamental purpose.
The test for material adverse action for purposes of retaliation is
thus distinct from the test for an adverse employment action for
purposes of a disparate-treatment claim. As stated by the EEOC, the
question of tangible harm goes to damages, not to liability, for retaliatory
conduct. To the extent our prior cases suggest otherwise, they should be
overruled. I would thus specifically reject the approach of the mostly
pre-Burlington Northern Eighth Circuit cases that indicate a material
adverse action must include tangible employment action or must affect
terms and conditions of employment. See Scott Rosenberg & Jeffrey
Lipman, Developing a Consistent Standard for Evaluating a Retaliation
Case Under Federal and State Civil Rights Statutes and State Common
Law Claims: An Iowa Model for the Nation, 53 Drake L. Rev. 359, 384–85
(2005) (urging adoption of Ninth Circuit standard in Ray). As stated by
the EEOC, in addition to the most obvious adverse actions such as
denial of promotion, refusal to hire, denial of job benefits, demotion,
suspension and discharge,
159
[o]ther types of adverse action may include work-related
threats, warnings, reprimands, transfers, negative or lowered
evaluations, transfers to less prestigious or desirable work or
work locations, and any other types of adverse treatment
that in the circumstances might well dissuade a reasonable
person from engaging in protected activity.
EEOC Enforcement Guidance II B.2.
I would also agree with Burlington Northern, the EEOC, and the
better reasoned caselaw that the determination of whether a plaintiff has
introduced evidence sufficient to establish a material adverse action is
fact specific and will, in most cases, generate a jury question. Of course,
petty incidents in isolation do not suffice to show a materially adverse
impact, but determining what is so petty that it would not deter a
reasonable person from utilizing complaint procedures is usually best
decided by a diverse jury with a mix of real world experience rather than
by the court. Cf. Bell v. Johnson, 308 F.3d 594, 603–05 (6th Cir. 2002)
(holding unless claimed retaliatory action is truly inconsequential, the
plaintiff’s First Amendment claim should go to the jury); Gallagher v.
Delaney, 139 F.3d 338, 342 (2d Cir. 1988) (noting that federal judges
usually live “in a narrow segment of the enormously broad American
socio-economic spectrum” and generally lack “the current real-life
experience required in interpreting subtle sexual dynamics of the
workplace, based on nuances, subtle perception, and implicit
communications”).
We should embrace the notion that while each individual act might
not provide sufficient evidence of a material adverse action, a
combination of relatively petty slights poses a different issue. Ordinarily,
the cumulative weight of multiple or repetitive actions will generate a fact
question for the jury to determine. Sanford, 327 F. App’x at 599; Vega,
801 F.2d at 90; Ridley, 217 F. App’x at 135.
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Finally, I would reject the laundry-list notion that various
employment actions such as reprimands or negative job evaluations,
transfers without loss of pay, or “snubbing” may be categorically
regarded as never arising to the level of material adverse action. Take
the negative job evaluation. In some setting, a negative job evaluation
might not matter at all. A negative job evaluation for an employee
approaching retirement might produce a cynical grunt, but not much
more. On the other hand, a negative job evaluation for an economically
struggling head of household who is anxious to climb the work ladder to
provide a better life for his or her family might reasonably feel quite
different. 35 See, e.g., Walker v. Johnston, 798 F.3d 1085, 1095 (D.C. Cir.
2015) (holding denial of deserved rise in performance rating may be
actionable); Porter v. Shah, 606 F.3d 809, 817–18 (D.C. Cir. 2010)
(stating interim performance of “borderline unacceptable” not materially
adverse when delivered orally, no written record was made, and was
superseded by end of the year review); see generally EEOC Manual 1998
Update § 5.B.2 n.113. This is precisely the kind of contextualization
called for in Burlington Northern, which noted that a transfer to a night
shift would be inconsequential for some, but not for others. 36 Of course,
an insistence on contextualization is a two-way street. It applies to
plaintiffs as well as defendants.
35In one study, ninety-five laws students at the University of Cincinnati were
surveyed about what kind of job actions would dissuade them from filing a civil rights
complaint. See Sperino, Retaliation, 67 Fla. L. Rev. at 2045. In the survey, eighty
percent indicated that a negative evaluation either would or might dissuade them from
pursuing a potential claim. Id.
36Depending on the context, “snubbing” could easily be regarded by a factfinder
as something that might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination. See B. Glenn George, Revenge, 83 Tul. L. Rev.
439, 443 (2008).
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In general, the first paragraph of the instruction accurately
captures the test of material adverse action in the retaliation context. It
emphasizes that material adverse action is action that is likely to deter a
reasonable person from filing a complaint. That is the legal standard I
would adopt under the ICRA.
The second paragraph of the instruction, however, is problematic.
It offers the unqualified statement that material adverse action includes
a list of actions. A reasonable jury could interpret the instruction to
mean that if one of the listed actions is present, material adverse action
is necessarily present as a matter of law, end of story. But, as stated
above, the test is whether a reasonable person in the shoes of the
plaintiff might well be deterred from pursuing a civil rights claim. In
considering this question, as Burlington Northern teaches us, “context
matters.” Id. at 69, 126 S. Ct. at 2416. Though each of the listed
actions, in context, separately or cumulatively, might rise to an “adverse
material action” if it met the Burlington Northern test that it “might well
deter” a reasonable person in the shoes of the plaintiff from engaging in
protected activity, a jury is not compelled to make that finding as the
trial court’s instruction might suggest. Id.
Ordinarily, this instructional error would be prejudicial and require
vacation of the verdict and remand for a new trial. Haskenhoff argues,
however, that any error is cured by the jury’s verdict finding that
Haskenhoff was constructively discharged by HES. Plainly, a
constructive discharge amounts to a material adverse action. 1 Andrew
J. Ruzicho et al., Employment Practices Manual § 6B:7, Westlaw
(database updated Mar. 2017) (“An actual or constructive discharge
remains the clearest example of an adverse action.”).
162
But, as pointed out in Chief Justice Cady’s concurrence, there is a
problem with Haskenhoff’s theory that the jury’s verdict on constructive
discharge remedies any potential flaw in the instructions on retaliation.
On questions number one and two, the jury answered in the affirmative
that Haskenhoff proved her case of sexual harassment and retaliation
respectively. On question number three, the jury answered in the
affirmative the question of whether Haskenhoff was subject to
constructive discharge. In response to question number four, the jury
returned a general damage verdict of $100,000 for lost wages and
benefits, $300,000 for emotional distress, and $1,000,000 for the present
value of emotional distress.
While the jury did find a constructive discharge, it is not clear from
the verdict form whether the jury’s constructive-discharge verdict was
based upon the plaintiff’s claim of sexual harassment found in question
one or whether it was based on the plaintiff’s claim of retaliation in
question two. In order to cure the defect in the retaliation instruction,
we must be able to conclude the jury found a causal relationship-
protected activity giving rise to the retaliation claim and the constructive
discharge.
From the jury verdict form, however, it is possible the jury believed
sexual harassment in question one, and not retaliation in question two,
was causally related to the constructive discharge. If so, the jury could
have awarded part of the general award damages in this case based upon
the faulty retaliation instruction. See Farmers’ Nat’l Bank of Oskaloosa
v. Stanton, 191 Iowa 433, 438–39, 182 N.W.647, 650 (1924). Further, we
cannot say as a matter of law that Haskenhoff established a material
adverse action which we have declared ordinarily involves a fact-based
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determination. As a result, I agree the judgment of the district court
must be reversed and the matter remanded for a new trial.
VI. Instructions Regarding Constructive Discharge.
A. Overview of Constructive Discharge. The application of the
constructive discharge doctrine to civil rights claims has been
controversial. See Mark S. Kende, Deconstructing Constructive Discharge:
The Misapplication of Constructive Discharge Standards in Employment
Discrimination Remedies, 71 Notre Dame L. Rev. 39, 41–45 (1995)
[hereinafter Kende] (“[B]y forcing discrimination victims to endure
continuing discrimination, the constructive discharge approach [of a
majority of federal courts] contravenes Title VII’s purposes.”).
In this case, however, the parties do not contest whether the
doctrine of constructive discharge applies but instead battle over the
substantive contours of constructive discharge. In exploring constructive
discharge, we recognized that while constructive discharge is generally a
demanding doctrine, a too stringent constructive discharge test may
simply be “a sophisticated means of providing undeserved protection to
employers who discriminate.” Id. at 78.
B. Challenged Instructions on Constructive Discharge. The
jury was instructed on constructive discharge as follows: “The employer
need not really want the employee to quit. . . . The employee must show
that she was subjected to sexual harassment or retaliation which made
her believe there was no chance for fair treatment at Homeland.”
HES had sought to instruct the jury that Haskenhoff had to show
“the Defendant acted with the intent of forcing the Plaintiff to quit, or the
Plaintiff’s resignation was a reasonably foreseeable result of the
Defendant’s actions.” Additionally, HES sought to instruct the jury as
follows:
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An employee cannot “quit and sue” and then claim to
have been constructively discharged. Rather, the conditions
giving rise to the resignation must be sufficiently
extraordinary and egregious to overcome the normal
motivation of a competent, diligent and reasonable employee
to remain on the job to earn a livelihood and to serve his or
her employer. In order to amount to a constructive
discharge, adverse working conditions must be unusually
“aggravated” or amount to a “continuous pattern” before the
situation will be deemed intolerable. Generally speaking, a
single, trivial or isolate act is insufficient to support a
constructive discharge claim. Finally, conditions cannot be
considered intolerable unless the employer has been given a
reasonable chance to resolve the problem.
C. Positions of the Parties.
1. HES. HES asserts the constructive discharge instruction was
erroneous because of the assertion that the employer “need not really
want the employee to quit.” Further, HES claims the instruction
improperly injected the subjective views of Haskenkoff into the issue.
Further, HES, citing Van Meter Industrial v. Mason City Human Rights
Commission, 675 N.W.2d 503, 511 (Iowa 2004), argues the district court
erred in failing to instruct that “conditions will not be considered
intolerable unless the employer has been given a reasonable chance to
resolve the problem.” Finally, in a footnote, HES challenges the repeated
reference to “fairness” in the instruction.
2. Haskenhoff. With respect to the instruction regarding the fact
that “the employer need not really want the employee to quit,”
Haskenhoff argues that this language is supported by Van Meter, 675
N.W.2d at 512. While the instruction did refer to fairness, Haskenhoff
states the Van Meter case repeatedly referred to the concept of fair
treatment. Id. at 511–12.
With respect to the question of whether the instruction was
erroneous because of reference to her subjective feelings, Haskenhoff
notes the instructions, taken as a whole, repeatedly referred to the
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objective standard for constructive discharge. According to Haskenhoff,
Instruction Nos. 33 and 34 dealing with constructive discharge contained
no less than seven references to the reasonableness standard.
Haskenhoff also asserts that HES’s proposed instruction that
“conditions will not be considered intolerable unless the employer has
been given a reasonable chance to resolve the problem” was presented in
the instructions. Haskenhoff notes the instructions stated that the
“conditions . . . must be sufficiently extraordinary and egregious” that
“adverse working conditions must be unusually ‘aggravated’ or amount
to a ‘continuous pattern’ before the situation will be deemed intolerable,”
and “a single, trivial, or isolated act is insufficient to support a
constructive discharge claim.” In any event, Haskenhoff suggests that in
light of the evidence the jury would not have found that the employer did
not have a reasonable chance to resolve the issue under the evidence
adduced at trial.
D. Federal Caselaw on Constructive Discharge.
1. Introduction. When applying the law of constructive discharge,
it appears almost universally accepted that the test of whether there is a
constructive discharge is whether working conditions are sufficiently
intolerable that a reasonable person in the position of the employee
would have felt compelled to resign. See 2 Christopher Bello, Litigating
Wrongful Discharge Claims § 7.62 n.3, at 7–260 (2013–2014 Cumulative
Supp.) (collecting cases). The reasonable-person test is generally an
objective test, but it is qualified by the notion that the reasonable person
must be one “in the position of the employee.” Id.
2. Intent to create hostile environment. The federal cases under
Title VII are split on the question of whether a plaintiff in a constructive
discharge case must prove employer intent. The majority view is that
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constructive discharge occurs even if the employer did not intend to
create the intolerable working conditions. See, e.g., Ramsey v. City &
Cty. of Denver, 907 F.2d 1004, 1010 (10th Cir. 1990); Watson v.
Nationwide Ins., 823 F.2d 360, 361 (9th Cir. 1987); Alicea Rosado v.
Garcia Santiago, 562 F.2d 114, 119 (lst Cir. 1977). On the other hand,
some cases hold that employer intent must be proved. See, e.g., Martin
v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995); Yates v. Avco
Corp., 819 F.2d 630, 636 (6th Cir. 1987); Junior v. Texaco, Inc., 688 F.2d
377, 379 (5th Cir. 1982).
3. Reasonable chance to work out the problem. The Eighth Circuit
has stated that an employee who quits without giving his or her employer
a reasonable chance to work out a problem is not constructively
discharged. Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 460 (8th Cir.
2011); Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 553 (8th
Cir. 2007). A similar approach has been embraced by the Fifth and
Eleventh Circuits. Kilgore v. Thompson & Brook Mgt., Inc., 93 F.3d 752,
754 (11th Cir. 1996); Bozé v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990).
In Suders v. Easton, the Third Circuit held it was relevant whether
the employee explored alternative avenues to resolve the alleged
discrimination before resigning, but that “a failure to do so will not defeat
a claim of constructive discharge.” 325 F.3d 432, 445–46 (3rd Cir.
2003), vacated on other grounds sub nom Pa. State Police v. Suders, 542
U.S. 129, 124 S. Ct. 2343 (2004). Other federal circuits have found that
the failure to attempt to resolve the problem prior to quitting as only a
factor to be considered by the fact finder in determining whether a
constructive discharge is present. Lindale v. Tokheim Corp., 145 F.3d
953, 956 (7th Cir. 1998); Levendos v. Stern Entm’t, Inc., 909 F.2d 747,
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753 (3d Cir. 1991). A case out of the First Circuit took yet another
position, indicating that staying on the job while seeking redress is
required except in exceptional cases, Lee-Crespo v. Schering-Plough Del
Caribe Inc., 354 F.3d 34, 35 (1st Cir. 2003). One court found such an
exceptional case when an employee correctly believed her termination
was imminent. EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 331–32 (7th
Cir. 2002).
One federal court noted the potential tightrope that a plaintiff must
show in proving a constructive discharge claim. In Bristow v. Daily
Press, Inc., the Fourth Circuit noted that while an employee must show
his working conditions are intolerable, his “desire for reinstatement to
his position belies the claim that intolerable conditions underlay his
resignation.” 770 F.2d 1251, 1256 (4th Cir. 1975). It is surely true that
a requirement an employee remain employed in an intolerable
employment environment is a concept in tension with itself.
E. State Caselaw on Constructive Discharge. A number of state
courts have expressly considered whether an employer must have a
reasonable chance to remedy the situation before a finder of fact may
find that an employee was constructively discharged. In Pollock, the
court held there was no legal requirement that an employee must
complain of harassment and wait and see what happens in all
circumstances. 11 S.W.3d at 761. The Pollock court reasoned that a
failure to complain may show the employee was not constructively
discharged, but not in all cases. Id. at 765. In some cases, according to
the court, a failure to complain may indicate that other factors were at
play other than the tolerability of the working conditions. Id. The court
concluded that courts must consider the totality of the circumstances in
determining whether working conditions were, in fact, intolerable. Id.
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Later Missouri appellate court cases, however, seemed to abandon the
Pollock approach in favor of a reasonable-chance-to-resolve requirement.
See DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct.
App. 2013); Gamber v. Mo. Dep’t of Health & Senior Servs., 225 S.W.3d
470, 475 (Mo. Ct. App. 2010). Other state courts, however, have followed
the general approach in Pollock. See, e.g., Charles v. Regents of N.M.
State Univ., 256 P.3d 29, 34–35 (N.M. Ct. App. 2010); Ballinger v.
Klamath Pacific Corp., 898 P.2d 232, 238 (Or. Ct. App. 1995); see also
Binkley v City of Tacoma, 787 P.2d 1366, 1376 (Wash 1990).
A final case of interest is Marten Transportation, Ltd. v. Department
of Industry, Labor, & Human Relations, 491 N.W.2d 96 (Wis. Ct. App.
1992), rev’d, 501 N.W.2d 391 (Wis. 1993). The Wisconsin court, in a
case noted by commentators, declared that “requiring a discrimination
victim to stay put to mitigate damages [is] like requiring ‘victims’ of legal
malpractice to continue being serviced by their negligent lawyer in order
to give the lawyer the chance to improve his or her skills.” Id. at 199; see
Arthur Young & Co. v. Sutherland, 631 A.2d 354, 362 (D.C. 1993)
(explaining that when working conditions are intolerable, an employee
need not remain in them and attempt to resolve them in order to recover
for constructive discharge); see also Kende, 71 Notre Dame L. Rev. at 53
n.78. The Marten Transportation case, however, was overruled by the
Wisconsin Supreme Court in a divided opinion. Marten Transp., Ltd. v.
Dep’t of Indus., Labor, & Human Relations, 501 N.W.2d 391, 399 (Wis.
1993).
F. Iowa Caselaw on Constructive Discharge. In the pre-Suders
case of Van Meter Industrial, we considered constructive discharge under
a local human rights ordinance. 675 N.W.2d at 505. We presented a
basic outline of the legal parameters of a constructive discharge claim,
169
which appear to have been uncontested. Id. at 510–12. Citing an Eighth
Circuit case, we stated that “conditions will not be considered intolerable
unless the employer has been given a reasonable chance to resolve the
problem.” Id. at 511. But we balanced this observation with the
contrapuntal declaration in the next sentence, stating, “On the other
hand, an employee need not stay if he or she reasonably believes there is
no possibility the employer will respond fairly.” Id. Thus, Van Meter is
ambiguous on the question of whether an employee suffering intolerable
discrimination must remain on the job while the employer investigates.
In any event, Van Meter is not entitled to stare decisis because the
parties agreed on the elements of constructive discharge in their briefs
before the court. See, e.g., Hemingway, 734 F.3d at 335 (holding a prior
case was not precedent on an issue when the issue was not contested);
Goldberger, 209 F.3d at 49 (finding certain cases did not support an
issue when the issue was not contested by the parties nor addressed by
the panel); Fulton Found., 108 N.W.2d at 316–17 (stating a case was not
efficacious on an issue which was not challenged by the parties). In any
event, it remains to be seen whether this conclusion remains good Iowa
law after law Suders.
G. Discussion.
1. No requirement of wanting employee to quit. As seen above, the
caselaw is divided on the question of whether an employer must desire
the employee to quit before a plaintiff may prove constructive discharge.
I agree with the majority approach, however, that there is no such
subjective legal requirement. I do so for several reasons. The focus on
constructive discharge should be on the perceptions of a reasonable
employee in light of the remedial purposes of the ICRA. I do not think
subjective protestations on the part of the employer should be a defense
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if the objective evidence demonstrates working conditions would be
considered intolerable by a reasonable person in the shoes of the
plaintiff. See Ramsey, 907 F.2d at 1010; Watson, 823 F.2d at 361;
Alicea Rosado, 562 F.2d at 119.
2. Objective test. In Van Meter, 675 N.W.2d at 511, we stated that
the standard was objective and most courts, including the United States
Supreme Court in Suders, have made similar statements. 542 U.S. at
141, 124 S. Ct. at 2351. And, no party here contests the objective
nature of a constructive discharge claim.
Therefore, the suggestion in the instruction that constructive
discharge may be shown if the employee subjectively believes conditions
are intolerable is not in accord with the law as agreed upon by the
parties in this case. Although the instruction was imperfect, taken as a
whole, any error was harmless on this point in light of the repeated
reference to reasonability throughout the instructions. On retrial,
however, the district court might want to eliminate any confusion by
consistently referencing the objective nature of the inquiry.
3. Reasonable chance to resolve the problem: Can Faragher-Ellerth
jump the track (again)? The last issue is the district court’s refusal to
instruct that the “conditions will not be considered intolerable unless the
employer has been given a reasonable chance to resolve the problem.” At
its core, this is another effort to transplant the thrust of the Farragher-
Ellerth affirmative defense outside the context of vicarious liability. See
Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An
Affirmative Answer, 85 Iowa L. Rev. 1035, 1050–51 (2000). This
approach appears to have been embraced by the Eighth and Eleventh
Circuits, but not in the Seventh Circuit. Trierweiler, 639 F.3d at 460;
Lindale, 145 F.3d at 956; Bozé, 912 F.2d at 805. As seen above, there is
171
state caselaw from Missouri, New Mexico, and Oregon to the contrary.
Pollock, 11 S.W.3d at 761, Charles, 256 P.3d at 34–35; Ballinger, 898
P.2d at 238. The caselaw thus presents us with an important
interpretive choice.
Based on our review of the possible approaches, I think the better
view is not to impose a legal requirement that an employee must give the
employer a reasonable period of time to remedy the problem in all
constructive discharge cases. As pointed out in the caselaw and in the
commentary, this requirement is a Catch-22 in that the plaintiff must
prove conditions are so intolerable that any reasonable person would
quit, while remaining patiently in the workplace to see if an employer can
change its behavior and come up with a remedy. See Gormley v. Coca-
Cola Enters., 109 P.3d 280, 285 (N.M. 2005) (finding fact that employee
gave employer one-month notice before quitting a factor in the employer’s
favor in considering summary judgment on constructive discharge
claim). In addition, requiring a plaintiff to remain in a situation that is
objectively intolerable based upon the employer’s discriminatory conduct
has a cynical if not brutal quality. There seems little point to require an
employee to stay and fight when the employment relationship has been
seriously damaged by discriminatory conduct of the employer. Martha
Chamallas, Title VII’s Midlife Crisis: The Case for Constructive Discharge,
77 S. Cal. L. Rev. 307, 372 (2004) [hereinafter Chamallas].
Empirical sources confirm that very few victims of sexual
harassment pursue complaints through internal grievance procedures.
Although now somewhat dated, scholarly literature suggests that
workers who suffer harassment who utilize internal channels range from
2.5%–12%. See Chamallas, 77 S. Cal. L. Rev. at 373. Remarkably, even
among persons who ultimately sued their employer for workplace
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harassment, nearly half did not report the harassment and only fifteen
percent did so in a timely manner. Id. The question thus arises as to
whether a court evaluating reasonable employee behavior in a
constructive discharge context should require atypical behavior. See id.
And, courts should be cautious in assuming as a matter of law that an
assertive approach which judges on an appellate bench with relative job
security might think reasonable might not be regarded as reasonable by
a jury of lay persons with wide experience in a diverse labor market.
Finally, forcing persons into internal processes tends to privatize
civil rights enforcement in an environment where sexual harassment may
be considered to be a personal problem for individual women rather than
a systemic issue. Id. Internal complaint procedures are thus often
unappealing because of a lack of empathy from decision-makers and the
perceived risks of retaliation. The end result may be for victims to simply
suffer in silence and then quit when conditions get bad. Id. at 379.
I would thus conclude there is no legal requirement to prevail on a
hostile environment claim that an employer had an opportunity to
resolve the problem. Pollock, 11 S.W.3d at 761; Charles, 256 P.3d at 37;
Ballinger, 898 P.2d at 238. That said, the failure of an employee to
pursue available remedies with the employer may be evidence for the fact
finder to consider in determining whether a work environment was truly
so intolerable as to satisfy the requirements of a constructive discharge.
See Lindale, 145 F.3d at 955–56; Levendos, 909 F.2d at 1230. It is not,
however, dispositive. Whether conditions were so intolerable that a
reasonable person would have no choice but to leave employment is “a
heavily fact-driven determination.” Levendos, 909 F.2d at 1230. As a
result, the constructive discharge instruction was not flawed because of
its failure to require as a matter of law that the plaintiff remain in the
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intolerably hostile workplace to allow the employer to attempt to remedy
the problem.
VII. Conclusion.
For the above reasons, I would generally conclude the approach of
the district court comported with Iowa law except with respect to the
instruction regarding materially adverse conditions required to support
retaliation. For this reason, I too would reverse the judgment of the
district court and remand for a new trial.
Wiggins and Hecht, JJ., join this concurrence in part and dissent
in part. Cady, C.J., joins in part.