In the recent case of Jahnke v. Deere & Co. (May 18, 2018), the Iowa Supreme Court ruled that a Deere employee who was repatriated to the United States as discipline for engaging in sexual misconduct while on assignment at a Deere factory in China did not state a claim for discrimination under the Iowa Civil Rights Act (ICRA)

Jahnke sued Deere in Iowa State Court, alleging the decision to repatriate him from China to a lower paying job in Waterloo, Iowa was based on his age, sex, and national origin.    While on assignment as the manager of a Deere factory in China, Jahnke engaged in sexual relationships with two younger, Chinese women who were in his “span of control”, which violated Deere’s policies.   Jahnke claimed Deere violated the Iowa Civil Rights Act because his discipline was harsher than that imposed on the female employees with whom he had the relationships.

Continue Reading Iowa Civil Rights Act Protections Do Not Apply to Ex-Pat Employee

As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases.   Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case.  These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.

Continue Reading Summary Judgement in Employment Discrimination Cases May Be Making a Comeback in Iowa State Court

There is reason to be concerned the AFSCME lawsuit challenging the recent collective bargaining amendments will undermine the legislature’s effort to reform public sector collective bargaining.  As discussed in our previous post on the new law, AFSCME Council 61, the state’s largest public employee union, filed a lawsuit to invalidate the new law on February 20, 2017, only three days (and one business day) after the law went into effect.

The target of the lawsuit is the exemption in the new law for “public safety” employees.   Any employee who is part of a bargaining unit with at least thirty percent (30%) “public safety” employees is exempt from the amendments to the law.  That means, unlike all other public employees, employees in a public safety bargaining unit have the right to bargain over benefits, working conditions, evaluation procedures, seniority, transfers, grievance procedures and a host of other subjects.   Non-public safety employees’ bargaining rights are limited to base wages.

The law defines “public safety” employee to include a sheriff’s regular deputy, a police officer of a city, members of the division of state patrol, narcotics enforcement, state fire marshal, or criminal investigation, conservation officer or park ranger, fire fighter,  and DOT enforcement officers.   Police officers not employed by a city and corrections officers are not included within the definition of “public safety” employees.

The AFSCME lawsuit includes four individual plaintiffs strategically chosen to highlight what AFSCME characterizes as the arbitrary nature of the “public safety” exclusion.   For example, one of the plaintiffs is a DOT enforcement officer, which is included within the definition of a “public safety” employee.  Yet, more than 30 percent of her bargaining unit is non-public safety, so she is not covered by the exemption.   Another plaintiff is identified as a “police officer III” employed by the state.   Even though his duties are similar to a sheriff’s deputy or city police officer, he is excluded from the definition of “public safety” employee, and thus not covered by the exemption.

The legal challenge is based upon Iowa’s version of the equal protection clause, contained Article I, section 6 of the Iowa Constitution.  That section provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

To pass constitutional muster, laws that relate to economic issues, like the collective bargaining amendments, must satisfy what is known as the “rational basis” test.    So long as there is a rational connection between the purpose of the statute and the classifications in it, the law does not violate equal protection.   Generally, the “rational basis” test is a low bar.  A person does not have a fundamental right to public employment, nor is union membership or collective bargaining a suspect class subject to strict court scrutiny.   Therefore, even if a court disagrees with the purpose of the law or means of achieving it, they are supposed to defer to legislative judgment and not substitute its own.

But, that does not mean the courts will give this law a free pass.   The only stated reason I have seen or heard for including the public safety exemption is a political one; that is, public safety employees are viewed more favorably than other public employees, and granting them more rights will garner more support for law’s passage.    While many of us agree public safety is the most critical function of government, it does not necessarily follow that granting a certain segment of these employees favored bargaining rights promotes public safety.   The 30% bargaining unit threshold seems particularly arbitrary.    The biggest challenge facing the law’s proponents is coming up with a principled, rational reason for this classification.  Hopefully they have thought of one, and will at some point share it with the rest of us.

While there are very few Iowa Supreme Court decisions striking down legislation using the rational basis test, it is not unheard of.    The Court’s recent constitutional jurisprudence has tended to be unpredictable, especially when the issue is politically charged.   Thus, while I am not making a prediction, there is a legitimate risk the Court will rule that granting favored bargaining rights to a limited segment of public safety employees violates equal protection.  Unfortunately for the proponents of this law, it will be at least two years before that happens.  It is very possible the window of opportunity for this type of sweeping reform will have closed by then.

A divided panel of the Iowa Court of Appeals recently ruled that the rules of construction in the ADA as amended in 2008 apply to the Iowa Civil RIghts Act when determining what constitutes a disability (Knudsen v. Tiger Tots Community Child Care Center, No. 2-1011, 1/9/13). Although Knudsen is a public accommodation and not an employment case, the opinion is nonetheless very significant.   It shows at least one appellate panel’s willingness to adopt the ADA Amendments by judicial fiat. The Iowa legislature has not amended the ICRA to adopt the changes Congress made to the ADA in 2008 (effective January 1, 2009). 

The plaintiffs in Knudsen are parents of a child with a tree nut allergy. Their child was refused admission to a child care center because the center did not have sufficient staffing levels to deal with the extra care demands of a child with that kind of medical condition.  The trial court granted summary judgment to the defendants because the nut allergy was not a “disability” under the ICRA.

The court reversed the summary judgment because the trial judge had not evaluated whether an episodic condition like a tree nut allergy would substantially limit a major life activity when active.    Notably, coverage for episodic conditions has existed only since the ADAAA became effective January 1, 2009.   But the ICRA has never been amended.   In holding that the ADA amendments apply, the court relied upon several pre-2009 cases holding that a federal analytical framework applied to disability cases under the ICRA. 

Judge Vogel dissented from the majority’s decision. She argued the only reason the pre-2009 cases relied upon the federal disability framework is because of similarities between the ADA and ICRA that then existed. After the 2009 ADA amendments, however, the federal law was no longer similar in many respects.    Judge Vogel concluded that it is not the court’s role to change the definition of disability under the ICRA simply because federal law changed.   That is up to the legislature.

Fortunately, this panel’s opinion is not the end of the story.   A certified question is presently pending before the Iowa Supreme Court on this very issue.   In Stotler v. Delavan, Inc., U.S. District Judge Gritzner asked the Iowa Supreme Court to answer the following question:

In the absence of any applicable amendment to the Iowa Civil Rights Act (ICRA) regarding claims of disability discrimination, will the Iowa courts adopt the structure of the revised federal law enacted by Congress in the 2008 Americans with Disabilities Act Amendment Act (ADAAA), specifically 42 U.S.C. §§ 12101 and 12102, and federal regulations promulgated thereunder, when reviewing disability discrimination claims under the ICRA?

It would be tempting for the Iowa Supreme Court t to simply adopt the ADA Amendments (as the Court of Appeals did in Knudsen).    It would certainly make cases easier to litigate, particularly those that assert claims under both federal and state law.  Hopefully, the court will resist that temptation.   The ADA Amendment substantively changed the nature and extent of that law’s coverage.  The Iowa legislature has expressed no intention to expand the scope of the ICRA in a similar manner.  

Not following the federal ADA in this case would also open the door to re-evaluting whether federal precedent should be followed in other types of discrimination claims under the ICRA..  The courts have for years ignored the real substantive differences between federal and state discrimination laws, and it is time to revisit those decisions.

Never has a Iowa Supreme Court’s ruling in an employment dispute generated such strong reaction, not only locally, but internationally.   The case, of course, is Nelson v. Knight, the December 21, 2012 ruling involving the Fort Dodge dentist who was irresistibly attracted to one of his dental assistants. Dr. Knight’s wife, who also worked in his practice, found text messages between the two of them when he left his phone at home.   Most of the texting was benign, but the wife was concerned that if Dr. Knight continued to work with this particular assistant it could lead to a romantic relationship. She demanded the assistant be terminated for the sake of the marriage. Dr. Knight agreed. 

The dental assistant, Melissa Nelson, sued, alleging her firing was illegal sex discrimination under the Iowa Civil Rights Act.    Notably, she did not claim sexual harassment. There was no sexual relationship, no demands for sex, no offensive working environment.   There was no claim Dr. Knight favored male employees compared to female employees. So how did Dr. Knight discriminate against her?  Ms. Nelson’s theory was that Dr. Knight’s attraction to her was in and of itself a form of unlawful sex discrimination.   In other words, if she had been male, Dr. Knight would not have perceived Nelson as a threat to his marriage, and she would not have been fired.

While acknowledging that Nelson’s argument warranted serious consideration, the Iowa Supreme Court ultimately concluded Dr. Knight was not guilty of sex discrimination.   The law recognizes a distinction between an isolated employment decision based upon a particular relationship (or potential relationship), and a decision based upon gender per se, even if the relationship would not have existed if the employee was a hypothetical male. In other words, the Court reasoned, Dr. Knight’s decision to terminate Ms. Nelson was not based upon her gender as such, but was driven completely by his individual feelings regarding a specific person.     There was no evidence Dr. Knight was biased against female employees generally.

This opinion unleashed a firestorm of commentary, most of it critical.    It is notable, however, that virtually all the criticism of the Court’s ruling is based upon the unfairness of the result, and ignores the Court’s extensive discussion of applicable precedent and how it applied to the facts of this particular case.   It is true that Ms. Nelson worked for this dentist a long time, and did nothing wrong. It was not the employee’s fault her boss did not exercise self control such that his wife could not trust him. Even the Iowa Supreme Court acknowledged the termination was unfair (and chided the dentist for giving his fired assistant “a rather ungenerous one month’s severance”). 

I am certainly not defending Dr. Knight here. His conduct caused harm to his own family and his employee, and he put himself in the position of having to choose one over the other.   Unfortunately, Ms. Nelson is the person out of a job. But, the anti-discrimination laws don’t prohibit unfair decisions; or harsh ones; or those based upon an employee’s attractiveness or lack thereof, whether male or female.   If there is no harassment, no coercion, and no evidence of bias against female employees, there is no unlawful discrimination.     It is also important to note that, while this ruling obviously touched some sensitive cultural nerves, it is not a decision that is likely to have significant impact on sex discrimination litigation.    The Court expressly limited its ruling to the unique circumstances that existed in this particular situation.   This case involved a family business owner’s decision to favor his wife’s request over the interests of a particular female employee.   While perhaps unfair, it was not unreasonable for the Court to conclude the Iowa Civil Rights Act does not make such a decision unlawful. 

For some other thoughtful commentary on this decision, I recommend the following:

Rush, Nigut, at Rush on Business;

Thomas, Crane, San Antonio Employment Law Blog

Eric Meyer, at Employer Handbook Blog

Fox Rothchild’s California Employment Law

 

Earlier this week Iowa District Court Judge Robert Blink granted judgment for the State of Iowa in a high profile class action race discrimination lawsuit.   (Pippen v. State of Iowa, link here). The plaintiffs alleged that 37 departments in the State’s executive branch maintained hiring and promotion practices that had an adverse disparate impact on African Americans. The plaintiffs claimed the State favored white applicants and employees over equally or even better qualified black applicants and employees in hiring and promotion decisions.    The class included approximately 6,000 employees, former employees, and applicants, and sought over $70 million in damages.

Although the State won the case in the trial court, the plaintiffs plan to appeal. More importantly, it appears the plaintiffs’ lawyers in Pippen view the case as an opportunity to fundamentally reshape the landscape of discrimination litigation in this state. Indeed, Judge Blink noted in his opinion that one of the stated purposes of the plaintiff class was to “broaden the horizons of Iowa’s legal landscape premised on their belief in our state’s progressive stance on civil rights.”   

There are three novel aspects of the case that warrant close scrutiny during the appellate process because of the potential impact on future discrimination cases: 1) the scope of the class; 2) the nature of the challenged employment practices; and 3) the type of evidence the plaintiffs relief upon, most particularly the concept of so-called “implicit bias.” 

The first unique aspect of the case was its scope: it covered every executive branch department.    Each of the 37 departments exercises its own hiring authority. There are more than 700 diverse job classifications and 2000 supervisors that have authority in the hiring process. The sheer number of different hiring and evaluation processes within each department, and for each job, made the case unwieldy. 

The “glue” the plaintiffs relied upon to tie these various processes together was the State’s statutory merit based employment system. The goal of the merit system is to hire and promote employees solely on the basis of merit and fitness, as ascertained by examinations or other appropriate screening methods.    There is another agency, the Department of Administrative Services (DAS) which oversees the merit employment system for all executive branch departments.   In Wal-Mart v. Dukes, the famous employment class action case the U.S. Supreme Court decided last year, the Court ruled that a proposed class of millions of current and former employees at thousands of Wal-Mart Stores across the United States was too large and disparate to qualify as a class action.   Notably, Judge Blink had already ruled that the plaintiff class in Pippen satisfied the criteria to proceed as a class action, notwithstanding the Wal-Mart decision.

The second novel aspect was the nature of the employment practice the plaintiffs claimed was discriminatory.    Disparate impact is a form of unintentional discrimination.    The plaintiffs are required to prove that a particular employment practice that is racially neutral on its face—say a test–impacts African Americans more adversely than whites.    In this case the “particular” employment practice at issue was not particular at all.   The plaintiffs did not claim a single test, screening mechanism, or interview process had disparate impact.   Rather, they alleged a systemic failure within the executive branch to adequately enforce the state’s merit based employment system.   Specifically, the plaintiffs attacked the fact that lower level managers have discretion to make subjective judgments about an applicant’s qualifications.  In essence, Plaintiffs claim the State should have done more to ensure that individual managers were complying with the policies requiring equal opportunity. Unlike most discrimination cases that are based upon the commission of an act, Pippen was based upon the State’s alleged omissions.

The third and most troubling aspect of the case (from an employer’s perspective) was the type of evidence the plaintiffs relied upon to prove that the discretion afforded to supervisors resulted in a disparate racial outcome. That evidence was the concept of “implicit bias”.    Plaintiffs presented the testimony of Dr. Anthony Greenwald, a psychology professor at the University of Washington.    Dr. Greenwald coined the term “implicit bias”, which the court characterized as “a state of racial inclination which is manifested without the person’s slightest appreciation that they are acting on it.”   Dr. Greenwald apparently claims that even people who do not intend to discriminate are likely to have implicit bis, and “unthinkingly they may discriminate without recognizing they are doing that.”   Dr. Greenwald opined that most groups who have been tested “showed a 70 percent automatic preference for whites over blacks.”    His opinion is apparently based upon a test called the “Implicit Association Test”, a computer based test that requires a subject to associate a verbal or visual stimulus viewed on a monitor with either “pleasant” or “unpleasant” words. 

Judge Blink rejected Dr. Greenwald’s opinion that implicit bias of supervisors tainted most of the subjective discretionary employment decisions in the State’s executive branch.  It is not clear whether the State challenged the admissibility of Dr. Greenwald’s opinions, and given that the trial was to the court and not a jury such challenge may have been fruitless anyway.   But, this is not the last time employers will see attempts to use so-called implicit bias to prove discrimination, both in class actions and otherwise.    Novel expert testimony is often rejected when it is first tried, but if plaintiff’s lawyers keep trying, they ultimately may find a court that will admit such evidence.   This type of testimony could be particulary damaging in a jury trial.  If employers can be held liable for discrimination based upon the subconscious thoughts of their managers, that the managers themselves don’t know exist, it will turn discrimination litigation completely on its head.  

Implicit bias was really the heart of the plaintiffs’ claim in Pippen, and it will be important for defendants to vigorously oppose the admission of this type of expert testimony in future cases.  Judge Blink’s opinion provides a road map for doing just that.

For additional commentary and analysis of the Pippen case, I recommend the following:

Workplace Class Action Blog

Stephanie Thomas, The Proactive Employer

Nyemaster Blog

Boston Employment Discrimination Blog

Des Moines Register

Almost twenty-five years ago, the Iowa Supreme Court recognized a new cause of action for the benefit of terminated employees: wrongful discharge in violation of public policy. (See Springer v. Weeks & Leo Co.).   What it means is that an employee cannot be terminated if the employer is motivated by reasons that would frustrate a well-recognized public policy.    Springer involved an employee who was terminated because she sought workers’ compensation benefits for an on-the-job injury.   The rationale is that terminating an employee because of work injury would deter employees from pursuing legitimate workers’ compensation claims, and thereby frustrate the public policy underlying the workers’ compensation laws.

Since Springer, the Iowa Supreme Court has recognized myriad other types of employee conduct that is protected by public policy.    Despite the many court decisions addressing the subject, however, the concept of what is and is not protected by public policy remains vague. Courts can look to the Iowa Constitution, statutes, and regulations as a basis for public policy claims, regardless whether the law or regulation in question was intended to give employees the right to sue.    Given the countless number of laws and regulations that govern this state, public policy “exceptions” have the potential to swallow the general rule of at-will employment.   Some might say that has already occurred.

Another practical concern is that the Court’s approach to these cases has encouraged more litigation. Even an employer that is careful to comply with known employment laws and rules can be sued for wrongful discharge based upon conduct that has not yet been recognized as unlawful.   Most of the time, defendants settle these cases to avoid the costs, risk, and uncertainties associated with litigation, which in turn encourages even more claims. 

Given the trend of expanding public policy claims, the Iowa Supreme Court’s decision last week in Berry v. Liberty Holdings, Inc. was a refreshing exception. Berry claimed he was terminated because he filed a personal injury lawsuit against Premier Concrete Holdings, Inc., which was owned by the same person as his employer, Liberty Holdings, Inc. Berry had been involved in a motor vehicle collision with one of Premiere’s concrete pumping trucks.   He ultimately settled the case with Premiere’s insurance carrier, but soon after was terminated by Liberty Holdings. 

The trial court dismissed the wrongful termination case on the grounds that suing a sister company of your employer was not conduct protected by public policy.    However, in a 2010 decision, the Iowa Court of Appeals reversed the dismissal, holding that Iowa’s Comparative Fault Statute (Chapter 668) “does codify the state’s expressed policy that its citizens may seek legal redress for an injury caused by another’s negligence.”

The employer sought further review in the Iowa Supreme Court, and in a decision issued September 9, 2011, the Court reversed the judgment of the Court of Appeals and dismissed the suit.   The supreme court rejected the court of appeals’ view that Iowa’s Comparative Fault Act contained a policy supporting an employee’s right to seek compensation for injuries. Rather, the court concluded Chapter 668 simply created a framework courts and juries use to allocate fault to one or more parties claimed to have caused a person’s injuries.   

While Berry represents a victory for employers, it does little to stem the tide of more lawsuits based upon violations of public policy. The supreme court was careful to decide the case on narrow grounds.  In a footnote, the court made clear it decided only whether Chapter 668 supported an employee’s protection from discharge if he files a lawsuit.    The court specifically left unanswered the question whether the Iowa Constitution, other statutes, rules, or precedent would support Berry’s wrongful discharge claim.