As employment cases go, the 2018–2019 adjudicative term (covered in Part I here) may go down as a year of missed chances. In Hawkins v. Grinnell Regional Medical Center, Patrick Smith wrote in June, the Justices failed to address an emotional-distress award’s excessiveness and the permissibility of a “golden rule” argument used in closing. So too in Hedlund v. State, where the Court sidestepped whether courts should stick to the McDonnell Douglas burden-shifting framework at summary judgment.
All the same, the term was never to populate the collective memory with signature precedents, its painful loss of a Justice, or the historic of appointments of two others. It will be remembered instead as the point when the Court’s ideological balance tipped from left to right for years to come.
To be sure, Justice Christensen’s replacing Justice Zager will probably have little if any effect, at least in ideologically divisive cases, where their views appear generally similar. But Justice McDonald replaced Justice Hecht, a swap, if history is any indicator, likely to produce different outcomes in many cases. Not least labor and employment cases, where the Justices often sharply divide.
Hedlund and Slaughter v. Des Moines University College of Osteopathic Medicine are cases in point. Glossing over some nuance, both were decided 4–3. Predicting judicial votes is risky, but had cancer not felled Justice Hecht, the decisions might have swung the other way, leaving Justices Waterman, Mansfield, and Christensen in dissent. That lineup could have held until Iowa law compels Justice Appel to retire in 2022. Between now and then, the Court will probably decide over 300 cases. Instead of authoring binding precedents, Justices Appel and Wiggins, joined sometimes by the more centrist Chief Justice, could find themselves dissenting in dozens of employment cases.
And the votes don’t tell the whole story of Slaughter and Hedlund. The majority and dissenting opinions in those cases expose a schism between the two blocs about summary-judgment standards in employment cases. In fact, Justice Appel devoted about 15 total pages of his two dissents to what probably seems like procedural arcana, details important only to judges and lawyers (and not even all of them).
Yet the debate is actually very much about substance. In our legal system juries, not judges, normally resolve fact disputes, and they, not judges, may generally award money. But if a judge grants summary judgment, she dispatches the case before a jury hears witnesses or sees other evidence. Existing legal rules and prior decisions will bless her ruling in many if not most employment cases. So in a discrimination case (discrimination here includes the various forms of harassment), the summary-judgment standard may be the difference between a million-dollar verdict, as in Hawkins, and a take-nothing judgment, as in Hedlund.
Justice Appel’s Hedlund dissent stressed that some federal appeals courts urge “‘rigor,’ ‘caution,’ or ‘special caution’ in ruling on summary judgment in discrimination cases.” He too would have had Iowa courts use “great caution,” an approach that if fully embraced by Iowa courts would shunt more cases to damages-awarding juries. In fact, many Iowa trial courts in practice already take this approach (though, Justice Appel might insist, not those in Slaughter and Hedlund).
Now consigned solidly to the minority, Justice Appel’s dissents may signal that he believes the Supreme Court’s newly reconfigured majority is readying to apply (or is already silently applying) summary judgment more aggressively in discrimination cases. Indeed, in the minds of employment litigators his insistence on special handling of employment cases may evoke a 2011 decision by the full Eighth Circuit, Torgerson v. City of Rochester (No. 09-1131), holding that no “discrimination case exception” applies at summary judgment. To that end, the Eighth Circuit expressly disavowed phrases used in scores of prior opinions resembling those Justice Appel invoked in Hedlund. And in no small part because Torgerson requires uniformity, Iowa employment plaintiffs prefer Iowa’s more hospitable courts to the Eighth Circuit’s.
We of course don’t know whether the Court will follow the Eighth Circuit’s lead and issue, as it were, a Torgerson for Iowa. But if that—and nothing more—happens, Iowa employment litigation in the future will look very different than it did at last term’s end. And if the Court someday also, say, capped emotional-distress awards—a question avoided in Hawkins—the 2018–2019 term will be assured a lasting spot in the memories of Iowa’s employers, employees, and employment lawyers.