Linda Pippen, on Behalf of Themselves and All Others Similarly Situated v. State

X al., PIPPEN, et On Behalf of Linda and All

Themselves Others Simi

larly Situated, Appellants,

v. Iоwa, al., et and All Oth STATE of Similarly Agencies

er Situated Us

ing Hiring of Ad Promotion Services, Appellees.

ministrative

No. 12-0913.

Supreme Court of Iowa.

July 2014.

Rehearing Denied Oct.

Thomas A. Newkirk and Leonard E. Firm, P.L.C., Bates Newkirk Law Des Moines; Bryan J. Law Wood of Office of Wood, Illinois; Bryan J. Chicago, Goldman David H. and Michael J. Carroll Goldman, P.C., Moines, of Babich Des for appellants. Miller, General, J. Attorney

Thomas Jef- frey Thompson, Attorney S. Deputy Gen- eral, Tyler Smith, S. Kim M. and Julia General, Attorneys appellees. Assistant for Stratton, Gaulding Jill R. and Lisa C. St. Paul, Minnesota, and Mark D. Sherinian Firm, & Sherinian Hasso Law West Des Moines, for amicus curiae Gender Justice. 8A.411(1) Baltimore, Keenan, Iowa Code Maryland, employment.” Kim M. (2007). The directs that for Code further National Association amicus curiae posi appointments promotions People. “[a]ll of Colored the Advancement system merit covered the state tions II, Moines, for Lovell Des Russell E. of merit solely be made on the basis shall State Con- curiae amicus Iowa/Nebraska fitness, by examina to be ascertained ference NAACP. appropriate screening other meth tions or Sacramento, Cali- Thompson, P. Joshua 8A.411(3). §Id. ods.” D. fornia, Jay T. Oliver and and Aaron Department The Iowa of Administrative Hansen, Riley, & Grimes of McClintock (DAS) ensuring responsible Services Moines, amicus curiae Pacific Le- Des are made accor- decisions gal Foundation. system. See id. with the merit dance 8A.104(12)(“The § director shall APPEL, [of DAS] Justice. [ejxamine develop practices ... and best case, appeal from In this we consider operation government for the efficient lengthy a judgment a district court after encourage agencies adopt state to and and in a class plaintiffs trial adverse to the practices.”). these DAS is implement both the Federal brought action under providing depart- tasked with rules for the Rights Civil Act and Iowa Civil 8A.413(1) § to follow. See id. ments various against Act the State of Iowa and (DAS rules for the administration adopts departments. plain- executive branch system). merit DAS employment of the generally allege tiffs that the State Iowa com- collects statewide data and monitors unlawfully against discriminates African comply with the stat- pliance. order to the rea- employment. Americans in For goals system, ed of the merit DAS has a below, we affirm the deci- expressed sons including retaining range options, wide sion of the district court. Upon request, consultants.1 independent as human assigns personnel DAS officers I. Factual and Procedural Back- departments resource advisors to various ground. functions, such to assist with thirty-seven departments There providing training, help- as materials and within the branch of the State of executive tools, assisting ing develop screening and hiring Iowa. Each exercises its own au hiring. thority. employs hiring The State a merit positions, system, system Applicants which establishes “a of hu to executive branch employees applying man based on as well as current resource administration DAS, principles promotions, applications merit and scientific methods to submit coрy. either online or hard DAS main- govern appointment, compensation, welfare, transfer, promotion, development, every applicant tains electronic data on database, removal, in their layoff, discipline application and of its civil and BrassRing.2 The district court summa- employees, and other incidents of state subchap- subchapter 1. of the human-resources ance with this rules Violation Id. subchapter.” under chapter regula- orders ter of Iowa Code 8A or DAS’s 8A.453(1). simple tions Iowa Code misdemeanor. Further, § 8A.458. director insti- "[t]he any proceeding BrassRing system tute and maintain action or DAS converted to the be- this, equity law or in the director considers 2004 and 2006. Before the State tween appropriate compli- system. necessary or to secure used the AS-400 hiring system employing employment system. rized three con- (1) separate decision-making steps: “DAS tend that because of the State’s failure to job applications receives merit-covered statutory enforce extant regulatory applications for ba- posting, screens those policies, disproportionate number Afri- classification, sic eligibility job and can Americans were denied an equal op- de- eligible applicants refers portunity employment. They claim omitted) (referral); partment” (emphasis this was the natural conse- unintended (2) hiring department “the the re- screens quences of the State’s failure to follow job-title specific ferred for the applicants designed rules equal ensure opportunity requirements, determines candi- which in the workplace and was not inten- done (interview selection); dates to interview” tionally or with malice. (8) hiring department “the interviews Further, alleged that the selected candidates and decides which May of they provided the State of (hire job” or pro- candidate offer the Iowa with a document entitled “Initial Evi- motion). dentiary Report,” systemic alleging racial all Although departments follow the pattern bias and a of retaliation top general system, practices merit managers and officials the State of practices hiring process vary. their Iowa. The plaintiffs alleged further practices using These varied include: the State hired a study consultant to em- screen, second requiring résumé candi- ployment practices in late early 2006 or fully explain expe- dates to more how their produced report who a as known qualify specific job riences them for a Report. CPS The plaintiffs alleged that function, requiring typing or a Each test. Evidentiary Report the Initial and the department relating maintains data to put CPS Report the State on notice that each is applicant, paper which stored in hiring practices imposed of the State files, hiring unlike DAS system, data equal barriers to employment opportuni- which is electronic. Each paper hiring file ties for African Americаns. registration contains BrassRing a number 28, 2010, September On on stipulation of so a correlation a specific job between parties, the district court cer- ordered posting applicant’s performance and tification of the case as a class action. The screening devices interview rec- and/or class and definition class claim were: ords can be correlated. CLASS DEFINITION: All African case, In this fourteen3 African-American applicants American or employees who plaintiffs brought a lawsuit under both Ti- sought or appointment to held a merit- Rights tle VII Civil Act of as system amended, position with an Executive 2000e-2000e-17 U.S.C. (not (2006), Branch agency including Board of Rights and the Iowa Civil Act of amended, Regents) any point July as Iowa Code 216. from chapter through of Court’s decision re- [date petition, In plaintiffs alleged their garding liability]. Iowa, including State thir- Disparate CLASS or ty-seven Impact CLAIM: depart- different executive branch ments, Impact Adverse discrimination with re- engaged practices that resulted diverse, spect hiring in a a to promotion failure maintain nondis- and decisions criminatory workplace through unequal its merit and terms conditions and/or plaintiffs’ adding 3. The plaintiffs, lawsuit was filed in October total nine additional for a times, subsequently twenty-three plaintiffs. and amended three named variety perspectives, with those deci- data from employment associated ex- analytical his models could include or under and Iowa Civil sions Title VII subjective, Regarding Act from dis- clude different variables. arising hiring cretionary decision-making permitted by separability of the elements in the statutory process, Killingsworth testified: the State’s abdication obli- responsibilities regulatory being incapable not that it’s [I]t 's its own gations failure follow very separated, but I think there are and/or policies. it can questions serious about whether a differ reliably separated, which is trial on September The case came to ent could cer story. Mechanically, one offered plaintiffs 2011. evidence tainly separate [this] it. And I know State to doc- relating efforts have done experts State’s] because [the employment practices, expert its ument [it.] expert, testimony a statistical labor sci- Killingsworth,

economist Mark social evi- offered social science testimony psychology profes- ence from through psychology professors: dence two Anthony Cheryl sors Greenwald and Kai- Cheryl Kaiser. Anthony Greenwald and ser, testimony representatives from DAS study social implicit Greenwald’s field personnel, testimony anecdotal cognition, which introduced in phrase he various related their ex- According from article in coauthored Greenwald, perience government. bias, with state implicit also known as bias, person’s hidden or unconscious is a claims, support Kill- plaintiffs’ race over preference automatic one that based on his sta- ingsworth testified possible He аnother. asserted that it was employing tistical work conventional decision- implicit bias affected Iowa regression analysis4 probit pro- statistical case, in this he did not although makers cedures, African Americans were treated files, any any review nor differently disadvantageously and more specific employment relating decisions to the respect than whites with referral of He rule out any class members. could not by interviews, applications DAS for with other race-neutral causes for the statistical respect by for interviews selection system. in In hiring imbalance the State’s agencies departments, various and and scenario, opinion, his even in best case Further, respect hiring. with to ultimate unconsciously bias could still invade hired, he Ameri- opined once African hiring process. State’s given job cans have lower within a salaries preju- job pay stereotyping title or hired for titles that less Kaiser studies and others, differently decision-making. than were treated dice and their effects on and performance making in bias implicit evaluations. She testified that she viewed calculations, Killingsworth only pervasive people his ana- and all fall believed lyzed applicants by had been within on one spectrum explicit who deemed a with bias meet qualifications implicit DAS to the minimum end limited bias on the other. and job opined training for the She classification had been and accountabili- ty, referred to He means of departments. approached including recordkeeping, are changes might change upon 4. The district in court described the difference ble based probit regression independent between conventional and one or more variables. analysis as follows: probit analysis primarily differs in may only analysis dependent in regression value that context seeks to [conventional] predict dependent or forecast how a varia- one of two values. have and, (African step if more reducing implicit bias used view Americans were re- State, extensively by the would have a duced from 5.95% referred to 3.47% inter- positive reducing implicit effect on bias pool- viewed of the total applicant for fiscal combined) system. years in State 2004-2006 and the pro- cess between the step interview and the members, Additionally, several class re- (African hire decision Americans were re- ferring relating ap- to documents to their duced to 2.82% while whites increased to promotion, plications for hire or testified at 91.52%). According to the CPS Report, which, examples they trial and offered in personnel “The actual decisions cre- claim, the did hiring system not function as ate a rebuttable inference of adverse im- examples intended. These included: pact.” It recommended that DAS “insti- qualified applicant African-American who policy tute a of regular systematic and' DAS, department referred to a by ... oversight compliance ensure with incorrectly reporting ap- due DAS [required] policies and procedures.” The cases, in plicant qualified; was not some cautioned, however,' Report CPS that be- résumés of African Americans were application cause the State’s tracking sys- to highlight spelling grammat- marked track, (the tem BrassRing) did not individ- errors; ical and some files contained people, ual but rather applications, it was résumés, African-Americans’ but not the identify any difficult to certainty screening devices to score or used evaluate exact makeup of the applicant pool or the them. of applicants. actual number testimony buttressed The State offered evidence related to of their witnesses with CPS Report, in decision-making process gov- state hiring practices review of the State’s com- ernment. It also the testimony offered State, prepared by missioned hu- Miller, economist Robert who was tasked man resources response consultants with analyzing Killingsworth’s the State about expressed concerns racial discrimi- findings and examining nation state CPS employment. The outcomes Iowa state government to de- found, among Report things, other termine if African system- Americans were during 2004-2006, years fiscal qualified ically disadvantaged. found Miller Kill- minority applicants were interviewed less ingsworth’s reports incomplete to be frequently qualified than white applicants his conclusions not well-founded. He testi- (13.46% minorities 20.24% that, opinion, fied his there was no whites), figures the noted which authors statistically significant system evidence of “may support perception of discrimi- wide racial discrimination the merit em- natory Further, hiring practices.” the re- ployment system in State of Iowa. port noted that African while Americans possible Miller also testified that was six of the percent quali- constituted total plaintiffs aggregate to break down pool, they represented fied no more than analysis into more discrete consideration of the years 2.8% total hires for fiscal by department of employment decisions or By repre- 2004-2006. comparison, whites by other classifications. eighty-eight percent quali- sented of the applicants ninety-one percent fied of On April the district filed total Report fifty-six hires. The CPS noted and thoughtful page detailed that the statistical favor employ- difference decision in of the State. The district appeared regard ment from noted process arise court first that with to the step between the inter- first plaintiffs’ theory, assuming referral even issue, we will not interfere decision-making proof of components “the capable judgment are not of the trial court’s unless we process in this case Plaintiffs have failed being separated, party find the has carried its burden as a [the] Id.; authority concluding provide legal matter of law.” see Vincent v. Four (Iowa statutory regulatory of Paper Corp., ‘abdication M N.W.2d 1999). fail- responsibilities obligations рarty will conclude a has car- and/or “We particu- policies’ ure to follow its own only ried such a burden when evidence is Next, in employment practice.” lar re- overwhelming only one so reasonable theory, second gards plaintiffs’ to the critical inference on each fact issue can be court found the had not carried Falczynski, 533 drawn.” N.W.2d “demonstrating insepa- their burden by are not bound We trial court’s system compo- rability application legal principles or its conclu- analytical purposes.” nents for The court Fuller, sions of law. 576 N.W.2d at 328. theory concluded former as a “[t]he fail[ed] the trial court has errone- applied “When law; a matter of matter of the latter as materially which ous rules of law affected fact.” decision, Falczynski, its we will reverse.” at 230. N.W.2d

Alternatively, looking plaintiffs’ evidence, implicit statistical and bias Legal

district court noted that III. Overview of Framework prove failed to the causation element of Established Modern State and disparate impact plain- their claim. The Federal Civil Acts. appealed. tiffs Leg A. and Federal Context State islation. The issues raised in this case II. Standard Review. cannot be approached without consider appeal of a trial to the larger they ation of the context in which court, the standard of review on all issues legacy slavery arise. The and Jim is. for correction of errors at law and for past, Crow be in the but their effects findings supported fact not substan present. Specifical cast a shadow into the 6.907; tial R.App. evidence. Iowa P. Falc ly, African Americans continue to be un Co., zynski v. Amoco Oil 533 N.W.2d derrepresented many categories of em (Iowa 1995). “Evidence is substantial ployment. days Only While the of “Whites purposes sustaining finding of fact Apply” signage fortunately long Need accept when a reasonable mind would it as passed, equality institutional barriers to adequate Falczyn to reach a conclusion.” opportunity economic remain intractable. ski, 533 at 230. N.W.2d We view Sturm, See Susan Second Em Generation substantiality light of evidence in the most ployment A Discrimination: Structural upholding the trial favorable court’s Approach, Colum. L.Rev. 459-60 Id.; judgment. Dep’t Fuller v. Iowa (2001) (“Smoking guns sign on the —the (Iowa Servs., Human 576 N.W.2d door that need apply5 ‘Irish or the 1998). rejection explained by the comment that required Reversal is job largely when an er ‘this is no for a woman’—are bias, materially past.... ror of law or fact affects other things Cognitive findings rulings. or Falczynski, making, pat See 533 structures of decision at replaced N.W.2d 230. trial court terns of interaction have deliber “[W]hen following recovery a bench trial has denied ate racism and sexism as the frontier of party inequality.”); gen because a failed to sustain its burden much continued see also

9 Hart, Subjective by discriminatory Melissa Decision- she has been harmed erally Discrimination, making employer. 357, and Unconscious animus of the at See id. 97 1866, (2005); Lee, Audrey J. S.Ct. at 52 Proving 56 Ala. L.Rev. 741 L.Ed.2d at 429. Note, Theory discriminatory Em Unconscious Bias in animus is often difficult ployment Litigation, Discrimination 40 probing task as it involves subjective (2005). L.Rev. 481 of Harv. C.R.-C.L. motivations the decision-maker. Al- legis civil rights though exist, remedies afforded under cases of blatant racism still disparate impact analysis lation are a criti most discrimination is more subtle and component eliminating cal or barriers difficult to demonstrate. by African Americans in headwinds faced alternative, however, In the a civil employment marketplace. rights brought claim based of purposes both the Iowa Civil disparate impact. disparate In a Rights Act Rights Federal Civil case, subjective what matters is not the designed ongoing

Act are address these of employer, motivation but effects Supreme problems. The United States of Teal, an employment practice. See 457 primary pur- Court has declared 8, 8, U.S. at 447 n. 102 S.Ct. at 2531 n. 73 Act pose Rights of Title VII the Civil of L.Ed.2d at 137 n. (“Experts 8 familiar with “ equality 1964 is ‘to assure the subject now generally describe the opportunities and to eliminate those dis- problem ‘systems’ terms of and ‘effects’ criminatory practices and which devices simply rather than wrongs.” intentional racially job have fostered stratified envi- (Internal omitted.)); Int’l citations Bhd. of disadvantage minority ronments Teamsters, 15, 431 at U.S. 335 n. 97 S.Ct. ” citizens.’ Int’l Bhd. Teamsters v. Unit- 15, at 1854 n. 52 L.Ed.2d at 415 n. 15 States, 324, 348, 1843, ed 431 97 U.S. S.Ct. (“Proof discriminatory ... motive is not (1977) 1861, 396, 52 (quoting L.Ed.2d 423 required disparate-impact under a theo Green, Douglas v. 411 Corp. McDonnell Co., ry.”); v. Griggs Duke Power 401 U.S. 792, 800, 1817, 1823, 93 U.S. S.Ct. 36 424, 432, 849, 854, 158, 91 S.Ct. 28 L.Ed.2d 668, (1973)); L.Ed.2d 676 see Connecticut (1971) (noting 165 or “good intent absence Teal, 448-49, v. 457 U.S. 102 S.Ct. of discriminatory intent not redeem does 2525, 2531-32, 73 L.Ed.2d 137-38 employment procedures testing mecha (1982) (explaining VII’s purposes). Title operate nisms ‘built-in headwinds’ Similarly, the Iowa Civil Act was minority groups and are unrelated to “in parity enacted an effort to establish job measuring capability”). workplace opportunity market It disparate is sometimes asserted that Madison, all.” Vivian v. 601 N.W.2d impact analysis rights of civil claims (Iowa 1999). outside civil rights the “core” of statutes Development

B. Historical represents legal development. novel Disparate Impact. There are two distinct See Stewart J. Schwab & L. Steven Will burn, liability civil rights theories under laws Reasonable Accommodation Disabilities, namely, Mary in employment, Workplace discrimination &Wm. (2003) involving disparate (characterizing cases and L.Rev. treatment disparate impact. disparate impact cases involving See Int’l cases as “non-core cases Teamsters, VII”). n. of discrimination But Bhd. U.S. under Title misleading. n. S.Ct. 52 L.Ed.2d at n. is at least somewhat Con case, cern disparate equal treatment about institutional barriers to plaintiff showing opportunity bears the burden of he or civil employment predated law can be interpreting in state courts seen at the and can be

rights statutes and dis- analysis majority of by move enhanced rights civil of the modern beginning States Su- of the United senting opinions Roosevelt President example, ment. For preme in- June of Court. Exeсutive Order issued by 1941, discrimination prohibited which broad A unanimous court’s Griggs: 2. gov in engaged by employers private race the Federal Civil construction of created a Fair contracting and ernment States first decision United Act. The which Practices Commission Employment case considered a which Supreme Court trends, and ca pushed monitored broad Griggs, impact disparate based on industries, in the war joled employers 849, 424, 28 L.Ed.2d at at 91 S.Ct. at U.S. of over line in terms the bottom assessed con- Supreme Court Griggs, 158. In Carle, Susan D. How See progress. all alleging action sidered a class the Historical Goals Myth-Busting About education or high of a school requirement Illuminate Rights Activism Can Civil of intelligence general passing a standardized 167, Paths, 1 J. C.R. & C.L. Future Stan. violated as a condition test (2011); Order No. also Exec. 172-73 see 425-26, Id. at Rights Act. the Federal Civil 1941). (June 25, 8802, Fed.Reg. L.Ed.2d at 161. at 91 S.Ct. may complex claims Disparate impact that neither asserted Griggs, plaintiff they are not disfa complicated, but significantly to be shown [was] “standard vored. that both job performance,” related to African disqualify Disparate Impact operated standards Treatment C. substantially rate higher at a Analysis Americans Title VII of Civil Under jobs in by white applicants, than Rights Act of 1964 the United States filled previously had been question Supreme Court. long-standing only a result of whites Although federal law 1. Introduction. at Id. at 91 S.Ct. practice. questions, on state law controlling is not L.Ed.2d at 161. dispa- begin substantive discussion we found for Supreme unanimous Court A analysis with overview rate Justice plaintiffs. As noted Chief Supreme States Court. cases United “[Practices, tests procedures, or Burger, simple: in a series of The reason for this is face, and even neutral cases, neutral on their Supreme Court disparate impact intent, maintained if cannot be majority terms of in both developed has doctrine quo the status they operate to ‘freeze’ de- dissenting opinions considerable discriminatory employment prac- Further, prior the claims tail. one of 853, 28 91 S.Ct. at On tices.” Id. under federal law. brought case was quoted language, claim, course, at 163. In much the deci- L.Ed.2d law the federal that the Fed- Burger noted Supreme Court Chief Justice of the United States sions “proscribes only not Rights Act authority which we eral Civil binding constitute practices but also overt discrimination faithfully interpretation in our apply must form, discriminatory op- fair in but to the state respect federal law. With 91 S.Ct. at claim, eration.” Id. reasoning of the United law Further, Jus- the Chief L.Ed.2d at opinions, and the Supreme States Court intent or absence “good noted that persua- well be tice dissenting opinions, em- does not redeem discriminatory intent sive, certainly binding although it is mecha- testing result, procedures understanding ployment upon us. As a as ‘built-in headwinds’ operate nisms that for state interpretive options range

IX minority and are to an groups employer unrelated would be able to simply sub 432, job Id. at 91 measuring capability.” subjective stitute having criteria substan 854, Again, at 28 L.Ed.2d at 165. tiаlly 989, S.Ct. identical effects. Id. at 108 “Congress noted that 2786, 101 the Chief Justice at S.Ct. L.Ed.2d at 841 (plurality so, directed the thrust Federal Civil [the opinion). If Griggs would be a dead em- consequences hand, Act] letter. Id. On the other according to practices, not- motiva- ployment simply the defendants, recognizing á claim of dis omitted). (emphasis Id. tion.” parate in impact subjective selection pro make cess would the claims so impossibly Griggs clearly established that a civil difficult to defend employers that would be claim rights disparate could be based on adopt forced to quotas numerical in order without ani proving discriminatory 989, liability. to avoid Id. at 108 S.Ct. at or involving objec mus motivation in cases 2786, 101 L.Ed.2d at 842. cri tive standardized tests 436, 856, See id. 91 teria. at S.Ct. at 28 Justice O’Connor to agree seemed L.Ed.2d at 167. But what about a claim the arguments parties. both In section subjective that exercise of discretion of IIB opinion, joined of her which was all produced has ille supervisory employees Court, recognized members she that gal discrimination? Griggs largely “could be nullified if dispa- impact analysis rate applied only were Watson: 3. divided. practices.” standardized selection Supreme United Id. first States Court case to She further wrote that rights disparate impact analy- consider a federal civil claim based principle sis is in upon subjective applicable “no less decision-making process Trust, subjective employment was Watson v. Worth criteria than to Fort Bank & ob- 977, 2777, jective 990, U.S. or standardized Id. 487 108 S.Ct. 101 L.Ed.2d tests.” at (1988). 2786, case, at S.Ct. 101 L.Ed.2d an at 842. In African Amer addition, employee bank Justice alleged ican of a that she O’Connor observed that employer’s while rejected policy had been favor an appli leaving pro- of white motion decisions to supervisory positions cants four unchecked discretion of at supervisors bank. Id. at lower level should itself S.Ct. at raise Watson, conduct, discriminatory no inference of L.Ed.2d at 837. In all participat follow “supervisors does not ing Supreme members of whom Court held á claim this discretion is brought upon delegated always could be act based discretion, without subjective discriminatory the exercise of intent.” Id. In ad- but dition, split particular the court observation in- sharply the contours and case, terest in this Justice O’Connor scope disparate impact such a claim. noted 991-99, Compare discriminatory that even without overt in- id. at 2787- S.Ct. at tent, problem “the of subconscious L.Ed.2d at stereo- (plurality 843-48 opin ion), 1000-11, 108 types prejudices with id. at 2792- would remain.” Id. S.Ct. at (Blackmun, J., 108 S.Ct. at 101 L.Ed.2d L.Ed.2d at 849-56 concurring part concurring judg

ment). Justice O’Connor then turned to the Court,

Speaking for employer’s four members concern in parts IIC and IID Justice out the opinion. writing only O’Connor laid stark alter of her Now four presented parties. Court, pivoted natives Accord members she to ex- if ing plaintiffs, disparate impact press concerns about the use of “bare sta- analysis tests, objective were confined to in a subjective decision-making tistics” only they that rаise ... an inference ‍‌‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​​​‌​​​‌‌‌‌‌‍of causa- employer that an could rebut

case 995, 2789, showing necessity” a of “business tion.” Id. at 108 S.Ct. at 101 upon 991-93, footnote, at 108 L.Ed.2d at 845. In a Justice “job relatedness.” Id. 2787-88, lower courts have at 101 L.Ed.2d at 843-44 O’Connor noted S.Ct. (citations sometimes looked the EEOC’s Uniform quotation and internal marks omitted). Employee Guidelines on Selection Proce- expressed concern that em- She adopted dures and an enforcement rule ployers would find it difficult to validate that an inference of discrimination could subjective impossible selection criteria and particu- not be drawn unless of a and, result, members engage to defend as a would race, lar sex group or ethnic are selected system. at surreptitious quota Id. at a rate less than of the group four-fifths 992-93, 2787-88, at 101 L.Ed.2d 108 S.Ct. highest rating. with the selection Id. at 843-44. She observed that it would be at 3, 3, 995 n. 108 at 2789 n. 101 S.Ct. “completely unrealistic to assume that un- L.Ed.2d at 845 n. 3. Justice O’Connor not- lawful discrimination is the sole cause of provided ed that this method “has not people failing gravitate jobs and em- more than a rule of thumb for the courts.” ployers accord with laws of chance.” Id. 992, 2787, Id. at 108 S.Ct. at 101 L.Ed.2d

at 843. She further noted that would “[i]t Justice O’Connor next cautioned that equally suppose unrealistic to that em- plaintiffs’ courts should not assume “that eliminate, ..., ployers can or discover 996, statistical evidence is reliable.” Id. at myriad of innocent causes that lead 2790, 108 S.Ct. at 101 L.Ed.2d at 846. workplace. to statistical imbalances” O’Connor, According to Justice weakness- Id. es can include small or incomplete data sets, inadequate techniques, statistical impossible

To avoid defenses and sur- applicant pools “containing individuals quotas, Justice reptitious O’Connor went lacking qualifications.” minimal Id. at beyond question posed peti- well 996-97, 2790, 108 at 101 S.Ct. L.Ed.2d at tion writ certiorari5 to undertake 846. Justice O’Connor thus stressed that what she called a “fresh and somewhat cases, disparate impact employers have closer evidentiary examination” of the opportunity to attack quality apply standards that in disparate impact plaintiff’s statistical evidence and the infer- 994, 2788, Id. cases. at 108 S.Ct. at 101 ences that may be drawn from it. Id. at began by emphasiz- L.Ed.2d at 844. She 996-97, 2790, 108 S.Ct. at 101 L.Ed.2d at ing plaintiff identify “specific that a must 846-47. employment practice” challenged. 994, 2788, Id. at 108 S.Ct. at 101 L.Ed.2d Justice O’Connor next turned to the na at 845. She then necessity turned to causation. Id. ture of the business defense. Id. 994-95, 2789, 997-98, 2790-91, at 108 at L.Ed.2d S.Ct. 108 at 101 S.Ct. emphasized at 845. She Although Griggs statistical L.Ed.2d at 847. stated disparities “sufficiently must be substantial showing burden of business neces 2797, (Stevens, J., question posed 5. The in the Petition for Writ S.Ct. at 101 L.Ed.2d at 856 Stevens, racially concurring). separate of Certiorari was: "Is the adverse Justice in a employer’s practice simply opinion concurring judgment, with the con committing employment engage decisions to the un sidered it unwise for the court to in a supervisory interpretation prior light checked discretion a white "fresh” cases in corps subject Griggs question presented. to the test of v. Duke narrow See id. аt Co., 1011, 2797-98, Power U.S. S.Ct. 108 S.Ct. at L.Ed.2d at [91 (1971)?” L.Ed.2d 158] 487 U.S. at defendant, sity with the Justice tion.” Id. at 108 S.Ct. at rested (internal wrote proving O’Connor that the burden of L.Ed.2d at 853 quotation marks omitted). plain rests always discrimination with the Justice Blackmun asserted that “[allowing tiff an employer at all times. Id. 108 S.Ct. at to escape liability simply by According articulating vague, 101 L.Ed.2d at 847. inoffensive- O’Connor, subjective plaintiff sounding Justice criteria now had the would [do disservice to the showing burden federal goal other tests or selection statute]’s eradicating in devices discrimination employer’s legiti employment.” would serve the 1009, 2797, Id. at 998, 108 S.Ct. mate at 101 L.Ed.2d interest. Id. at 108 S.Ct. at at 855. 2790, 101 L.Ed.2d at 847. sum, In opinions Watson clearly Blackmun, joined by

Justice two col proposition stood for the disparate that leagues, exception took to Justice O’Con- could, at least in some circum- nor’s notion that the burden of proof and stances, apply subjective employer deci- in production disparate impact cases re evenly court, An sion-making. divided plaintiff mained with the on the business however, had different scope visions of the 1002-03, necessity defense. Id. at of disparate and contour impact analysis (Black 2793, S.Ct. at 101 L.Ed.2d at 850 subjective on decision-making. plu- mun, J., concurring part in concurring rality, joining O’Connor, Justice pre- in the judgment). Justice Blackmun main pared modify proof burdens of in cases, tained in disparate impact that order ability to enhance the employ- an prima facie case is established showing er to disparate impact defend claims aris- significant disparity. statistical Id. at ing subjective from decision-making, while 1004, 108 2794, 101 at S.Ct. L.Ed.2d at 851. Justice Blackmun feared the modification employment practice Once an is shown to proposed by of law Justice O’Connorwould have discriminatory consequences, accord provide escape an for employers hatch Blackmun, ing to employer Justice an can potential from liability. escape liability if it only persuades the process that selection has “a 4. Wards Cove: Narrow construction relationship manifest in employment year prevails. A after was decid Watson (internal question.” quotation Id. ed, marks the Supreme Court decided Wards omitted). Even if relationship such a Atonio, Packing 642, Cove Co. v. 490 U.S. present, Blackmun, according to Justice 2115, (1989), 109 S.Ct. 104 L.Ed.2d 733 plaintiff may show that “other selec superseded by statute other grounds, tion processes that a lesser discrimi have 2000e-2(k), recognized U.S.C. in Wal- natory effect could also serve ... the em Stores, Dukes, U.S. -, Mart Inc. v. ployer’s [legitimate] 2541, 180 business needs.” Id. (2011). 131 S.Ct. L.Ed.2d 374 1005-06, at 108 S.Ct. at 101 L.Ed.2d case, Kennedy, Justice who did not at 852. Watson, participate tipped in the balance. Cove, In Wards Justice Kennedy joined Justice Blackmun was also concerned opinion by Justice which essentially White language about in opin- Justice O’Connor’s approach converted the plurality ion suggesting “[i]n the context of opinion of Justice in into O’Connor Watson subjective discretionary employment majority opinion Wards Cove. decisions, the employer will оften find it easier than the case of standardized Wards Cove dealt with employment produce tests to practices evidence of a manifest of two companies operated relationship ques- salmon canneries in remote areas Alas (plurality opinion), summer L.Ed.2d at 837-48 runs during the salmon ka Cove, 645-61, at 490 U.S. at 109 S.Ct. Id. at 109 S.Ct. months. Wards 2118-27, fell the canneries 744-54. The at 744. Jobs at 104 L.Ed.2d at L.Ed.2d at “cannery jobs” categories, views general into two of Justice O’Connor’s conversion 647, 109 “noncannery Id. at jobs.” drew a opinion precedent plurality from Most at 745. at 104 L.Ed.2d minority. S.Ct. rejoinder from the Jus sharp positions, cannery jobs were nonskilled outcome, Blackmun, de ruling tice while, noncannery jobs conversely, most majority “a bare of the Court clared that positions. Id. as skilled were classified major backwards takes three strides cannery jobs predominantly filed were against discrimination.” battle race nonwhites, noncannery jobs while Cove, at 490 U.S. at 109 S.Ct. Wards work with white predominantly were filled (Blackmun, J., 2127, 104 L.Ed.2d 2119-20, Id. at ers. 109 S.Ct. dissenting). questioned He “whether operated at 745. The canneries L.Ed.2d race discrimina majority still believes that mess separate separate dormitories and or, accurately, more race discrimina tion — noncannery cannery and halls for the in problem against tion nonwhites—is 2120, 104 647, 109 at workers. Id. at S.Ct. society, or even remembers that our found at 745. district court L.Ed.2d 662, 2127, at at ever was.” Id. 109 S.Ct. disparate all in favor of the defendants on at 755. Stevens’ dis 104 L.Ed.2d Justice claims, panel and a Court the federal courts emphasized sent role of affirmed, but Appeals for the Ninth Circuit in national agencies promoting and the the Ninth Circuit hearing an en banc “eliminating that define barriers goal ... plaintiff has “[o]nce held and opportunity by aptitude not economic by specific, caused disparate impact shown race, color, origin, ability but national or crite employment practices identifiable easily other traits that are identified and ria, employer.” the burden shifts utterly qualification irrelevant but to one’s 648, 2120, 104 L.Ed.2d Id. at at S.Ct. 662-63, job.” particular for a Id. at (internal omitted). On re at citations 2128, (Stevens, at 104 L.Ed.2d at 755 S.Ct. court held original panel, mand to the J., Ste dissenting). According to Justice prima made out a had vens, changes majority “The makes in disparate impact facie case of today, tipping the scales in favor of em noncannery posi both skilled unskilled are not faithful ployers, [established to the district tions and remanded the case at impact] principles.” Id. disparate employer could court to determine if the at 762. 109 S.Ct. at 104 L.Ed.2d neces showing meet its burden of business Court, Supreme Even for an often divided at sity. Id. at 109 S.Ct. only be holdings in Wards can Cove raised L.Ed.2d at 746. the case Because bitterly characterized as contested. evenly upon issues which the Court Watson, Supreme Court divided nothing in emphasized It should be 649-50, at granted certiorari. Id. language compelled Title VII 2121, 104 at L.Ed.2d at 747. S.Ct. position result in Wards Cove or the Instead, mentioned, dissents. аs one commentator majority previously As noted, proper interpre has the battle over opinion by Wards Cove Justice White of Title VII open-ended language tation of basically plu converted Justice O’Connor’s majority understandings was over about “whether rality opinion into a Watson Watson, happening” is still opinion. Compare U.S. discrimination 982-1000, 2782-92, it manifests workplace, 101 modern about “how S.Ct. itself,” society how should ad VII: The and about Need Third Reconstruc- tion, Speri Pol’y dress such concerns. See Sandra F. 8 Yale &L. Rev. 247-49 (1990). no, Revitalizing Employment State Dis Law, 20 Geo. Mason L.Rev. crimination In response, Congress passed legislation (2013) 545, 546 Revi Sperino, [hereinafter overruling Wards Cove and other 1989 Su talizing]. say fair to It seems preme rulings Court in the Civil Rights Supreme saw majority on the Court racial 1990; Act of (1990); S. Cong. 101st primarily discrimination in (1990) (state Cong. see 136 Rec. S991-01 past require a relic of the that does (“In ment of Kennedy) past Sen. year, measures, while the minor broad remedial however, Supreme Court has issued a ity saw more an racial discrimination like rulings series of that mark abrupt enduring part

intractable the Amer departure unfortunate from its historic landscape. ican vigilance protecting civil rights.... The Rights 1991: The Civil Aet Con- Civil Act of 1990 is intended to gress reacts to narrow construction the overturn Court these decisions and restore Supreme laws.”); Because it was decided strengthen Court. these basic see easy Runkel, ago, forget Note,. over two decades it is Philip also S. The Civil controversy engen- Rights that Wards Act A Cove 1991: Continuation rights were out- dered. Civil advocates Wards Cove Standard Business Neces raged by sity?, Mary 1177, 1177 the decision and other decisions 35 Wm. & L.Rev. n. 5, (1994)6 increasingly of what to be an hos- 1186 seemed [hereinafter Runkel] Supreme (“Against background, tile Court. The decision in Congress at compared tempted the Wards Cove to 1883 to overturn Cove with a Wards 1990.'”). Rights and was to foretell new bill in rights Civil Cases said President civil Bush, however, the end of the Second Reconstruction that vetoed the measure. 136 (1990) Cong. S16,562 commenced with Brown v. Board Edu- Rec. (recording Pres cation, veto). 483, 686, 74 347 U.S. S.Ct. 98 L.Ed. ident attempted Bush’s The Senate (1954), veto, passage 873 Civil to override the an effort which failed Belton, Rights Act 1964. See Robert to meet the two thirds vote required Dismantling the Griggs Disparate by S16, Senate one vote. Cong. 136 Rec. (1990) Impact Theory (recording tally and the Title Future 589 final of 66 to previous interpretation 6. Footnote 5 states: law federal re- garding ability challenge to workers rights Civil advocates to wanted overturn discriminatory seniority systems); Martin v. Supreme five that Court decisions worked Wilks, 755, 759, 2180, U.S. 109 S.Ct. [490 employees’ ability successfully to restrict to 2183, 835, (1989)] (ex- 104 L.Ed.2d 842 employers workplace sue over discrimina- panding ability not affected workers important Supreme tion. The most of these agreements challenge to discrimination Packing Court decisions was Wards Cove previously discriminatory made between Atonio, 642, 2115, Co. v. 490 U.S. S.Ct. 109 employers party); and the discriminated (1989).... impor- 104 733 Other L.Ed.2d Hopkins, [490 Price Waterhouse v. U.S. tant cases included: v. Patterson McLean 228, 258, 1775, 1795, Union, 109 S.Ct. [491 Credit 2363, U.S. 109 S.Ct. (1989)] (holding L.Ed.2d that (1989)] em- L.Ed.2d ployment decisions based on both discrimi- (holding perform- that discrimination in natory nondiscriminatory reasons employment pro- ance of contracts not employer existing proves if explicitly hibited valid would under federal law); Inc., Technologies, solely v. AT T have same based Lorance & made the decision 900, 911, 2261, 2268, factors). non-discriminatory [490 on the U.S. 109 S.Ct. Runkel, (1989)] (limiting Mary & L.Ed.2d 35 Wm. L.Rev. 1177 n. 5. employment 34). particular prac fication of very large margins both Although 105(a) (codified Cove, § at 42 tices. Id. U.S.C. overturn Wards to houses wished 2000e-2(k)(1)). Congress gener § While one vote. failed the effort identify par ally required plaintiff that a Rights Act of of the Civil provision One practices that cause ticular noteworthy for the dis- particularly 1990 is disparate impact, Congress provided also The vetoed bill ex- in this case. cussion decision-making could be process that the the situation where pressly addressed under certain cir challenged as a whole keep sufficient records employer fails Congress pro Specifically, cumstances. impact analysis. The disparate allow for vided: stated: provision relevant demonstrating that a respect With (iii) party shall be re- complaining causes a particular employment practice specific to demonstrate which quired complaining ... disparate impact practices responsible or are practice par- that each party shall demonstrate in all cases unless disparate impact practice challenged employment ticular (I) discovery the court finds after if disparate impact, except causes destroyed, concealed respondent has party can demonstrate complaining records produce existing or refused to that the elements of a re- to the court necessary showing, to make this spondent’s decisionmaking process are (II) keep respondent failed separation analysis, capable ... such records decisionmaking process may be ana- 4(k)(B)(iii). 2104, 101st § Cong. S. lyzed employment practice. as one Republican A Sena group of moderate 105(a) (codified § at 42 U.S.C. Id. tors, however, determined that notwith 2000e-2(k)(1)(B)(i)). override the Presi standing the failure to Act of language Civil veto, compromise dent’s could be struck specific language 1991 did not include the Congress between and the President. See regarding keeping present record that was Runkel, Mary & L.Rev. at 1198. Wm. Rights in the unsuccessful Civil Act end, period an In the after intense 1990, language used in the general but factions, diplomacy warring Con between Rights Act of 1991 to establish an Civil gress passed Rights the Civil Act 1991. exception particular to the identification of (1991) 102-166, Pub.L. No. 105 Stat. 1071 in terms employment practices was stated (codified § at 42 2000e to 2000e-16 U.S.C. where an enough broad to cover situations 1991)). (Supp. According III to the stat employer keep fails tо records. ute, codify Act “to purpose was again. divisions necessity’ Sharp of ‘business and 6. Wal-Mart: concepts Supreme States ‘job by Supreme significant related’ enunciated The last United Co., ... is Griggs regarding disparate in v. Duke Power Court case Court case, Supreme In this Supreme pri- and in other Court decisions Wal-Mart. nationwide class action Packing and to Court considered a or to Wards Cove Co.” by employees female on behalf of “respond brought to decisions of the Su recent female 1.5 million current and former preme by expanding scope some Court Wal-Mart, stores. employees to of Wal-Mart rights relevant civil statutes order 2547, at -, at 180 provide adequate to victims of 564 U.S. S.Ct. protection (4). 3(2), employees Act at 385. The claimed discrimination.” Id. L.Ed.2d managers exercised re that local Wal-Mart ruling also addressed the Cove Wards pay promotions and requirement of identi their discretion over garding general men, causing Ginsburg part in favor of Justice disproportionately dissented and disparate impact joined by Breyer, under the was Justices Sotomayor, an unlawful -, Kagan. and Id. Rights Act. Id. The district at at Federal Civil S.Ct. 2561, J., 180 L.Ed.2d at 400 (Ginsburg, the class and the Ninth court certified -, 131 part concurring dissenting in part). Circuit affirmed. Id. S.Ct. at at Ginsburg Justice 2549, 180 adopted the at framework L.Ed.2d embraced in the Civil Act of appeal, majority On a bare of the Su applied but that framework in a fashion preme opinion Court reversed. an different than the majority. to According Scalia, by majority held written Justice Ginsburg, Justice the district court had that the class should have been certi “systems identified ... in- promoting federal rules. applicable fied under employees sufficiently store that were -, 2556-57, Id. at 131 S.Ct. at 180 similar regions across stores con at The class L.Ed.2d 395-96. certification that the manner which these sys clude however, question, was intertwined with tems affect the class raises issues that are at -, the merits of case: Id. 131 common to all class members.” Id. at 2552, 180 at S.Ct. at L.Ed.2d 391. Justice -, at S.Ct. 180 L.Ed.2d at allowing Scalia stressed discretion (internal omitted). quotation marks is managers opposite local of uniform Ginsburg Justice wrote that prac “[t]he pattern provide practice would of delegating supervisors large tice dis commonality needed for class action. Id. decisions, personnel cretion to make un at -, 131 S.Ct. at 180 L.Ed.2d at standards, long controlled formal has 392. Justice Scalia noted that a com “[i]n been known have the potential pro pany geographic size and Wal-Mart’s disparate at -, duce effects.” Id. all scope, quite unbelievable that man at Citing S.Ct. 180 L.Ed.2d at 403. in a agers would exercise their discretion Cove, Ginsburg Watson Justice Wards way common without some common di ‍‌‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​​​‌​​​‌‌‌‌‌‍ “[ajware problem stressed that ‘the at -, rection.” Id. S.Ct. prejudices,’ stereotypes subconscious reject 180 L.Ed.2d at 393. Justice Scalia ‘employer’s undisciplined we held that the analysis” ed the “social framework as not subjective system decisionmaking’ offering a for finding sufficient bаsis com ‘may ‘employment practice’ be an at -, monality Id. across class. 131 alyzed disparate impact ap under 2554-55, S.Ct. at 180 L.Ed.2d at 393. Ac at -, proach.’” Id. S.Ct. Scalia, cording to than Justice “Other Watson, at (quoting 180 L.Ed.2d 404 487 discretion, of delegated bare existence re 990-91, 2777, at 101 U.S. S.Ct. at spondents have identified no em ‘specific 842-43). Ginsburg L.Ed.2d at Justice ployment practice’ less one that had noted offered statis —much together.” ties all their 1.5 million claims showed, tical evidence that after control -, 2555-56, at Id. at S.Ct. ling including “job perform factors According at L.Ed.2d 394. to Justice Sca- ance, with the length company, time lia, “Merely showing poli that Wal-Mart’s employee and the store where an cy worked,” an produced discretion has overall there was a sufficient statistical disparity sex-based does not suffice.” Id. give basis to rise to inference dis at -, -, at S.Ct. 180 L.Ed.2d at crimination. Id. at 131 S.Ct. 394. at 403. L.Ed.2d minority or the majority Do we follow the Disparate Im Treatment D. Or, do we or Wal-Mart? in Wards Cove the Iowa Civil Analysis pact Under path? follow a third occa only a few have had Rights Act. We the Iowa cases under sions to consider the Civil passed Congress While impact disparate Act when Rights Civil to Wards response 1991 in Rights Act of See, e.g., Hy-Vee presented. claims were Cove, been amendment has no similar Rights Stores, v. Iowa Civil Inc. Food Act. The Rights to the Iowa Civil made (1990); Comm’n, 517-19 453 N.W.2d legislative a Congress enacted fact that Griggs, 211 N.W.2d v.Co. Wilson-Sinclair binding majority in to a change response 1973). cases, (Iowa In those 133, 140-41 States of the United opinion Supreme law argue that state parties did in force persuasive nót háve Court does differently than fed interpreted be should Rights Iowa Civil interpretation Nonetheless, true generally it is eral law. adopted principles have not Act. We traditionally looked have courts that “Iowa construction of Wards Cove interpreting” in guidance federal law for not bound to Act and are Rights Iowa Civil v. Act. Pecenka Rights the Iowa Civil a specific reaction to Congressional do so. Inc., Stores, 672 N.W.2d Fareway States Su by the United case decided 2003). however, (Iowa are, “not bound We on the light not shed does preme Court law, utiliza despite consistent by federal there has been of state law when meaning analytical framework.” federal tion of the prece narrow state comparable no Barrett, 449 N.W.2d (citing Id. v. Hulme override. legislative to stimulate dent 1989)). (Iowa 629, 631 Disparate Literature on E. Academic however, not, adopted explicitly have Subjective We Setting Deci Impact in the teaching law either under state sion-Making. body of litera There is It true that is Cove or Wal-Mart. Wards theo disparate grappling ture in de- cited Wards Cove Hy-Vee, we subjective decision- ry in the context of discrimi- differences between scribing breaking article in ground In a making. discriminatory im- natory sug treatment Benjamin Oppenheimer David Hy-Vee, 453 N.W.2d theory might cases. See pact negligence gested not, however, adopt the theory. See dispаrate impact 518-19. We did basis for lock, stock, and Negligent Cove holdings Benjamin Oppenheimer, Wards David barrel, us party Discrimination, has a asked L.Rev. no case 141 U. Pa. minority opin- (1993) “psychological (examining to consider the merits approach or some other demon ion Wards Cove data on racism sociological [to] Hy- closely Act. In the Iowa is more why under Civil discrimination strate Vee, regarding the question there was no conduct than analogous negligent discriminatory conduct”). has particular of a This article presence intentional segregation of in the litera namely, offspring the sexual practice, spawned significant Tip See id. at Elizabeth positions. e.g., stocker and checker generally, ture. See Impli Vault: The Robbing a Barren pett, Cases Dukes v. Wal-Mart cations of Wal-Mart, we respect to Similarly, with Prac Employment Challenging Subjective whether no occasion to consider have had L.J. 433 tices, Emp. & 29 Hofstra Lab. 5-4 minority opinion majority the or (2012). persuasive power. the most decision has at least to believe that There is reason interpretive of thus have a number

We States Su- of the United some members Rights Act. under the Iowa Civil options negli- plaintiffs point be interested in The preme might Court out DAS is re- theory subjective sponsible in the context of for the of gence oversight merit and oral decision-making. argument Yet, At affirmative action in employment. ac- matter, Kennedy Justice cording plaintiffs, Wal-Mart the information questions by asked about Justice Roberts maintained DAS did not contain data was a “no- to plaintiff advancing whether the sufficient allow of analysis specific em- namely, that theory,” employer ployment practices. tice plaintiffs The note discriminatory of its aware that the district correctly found that subjective practices may data, be liable under “DAS retains no computerized or otherwise, the Federal Civil Act. See Deborah one to see allows how a Weiss, Grudging A M. Wal- certain was person screened scored and/or Defense of Dukes, Mart v. 24 Yale J.L. & Feminism compared applicant to another by (2012). plaintiffs’ ap- Thus, The lawyer department.” the information main- away parently theory. walked from the DAS by tained was not capable separa- id. at notice (advocating analysis you See 167-68 tion for because could not liability approach employer when an the compare applicant treatment of one problems and does fashion an any objective way, aware not another in a necessary appropriate remedy). in aggregate foundation statistical analysis. plaintiffs The then turn to the underly- Specific Employ-

IV. Discussion ing, copy by hard records maintained Incapable ment Practice departments. plaintiffs The note that un- Analysis Separation for Issues. applicable regulations, der administrative agencies required A. Positions of the Parties. keep required by records as the director plaintiffs. plaintiffs gener- shall, minimum, ... at a [which] include ally claim that the district court erred tracking of composition applicant

finding that show plaintiffs failed to their groups, through steps movement job that the State’s selection process hiring processes, the impact of capable Ac- separation personnel group actions on various cording to the issue plaintiffs, primary members when are not records other- appeal is “whether Defendants’ common wise available in centralized information system and promotion permitted systems. analy- perform statistical [the Plaintiffs] 68.2(3). protection sis of methods or [selection Iowa Admin. Code r. 11 — practices] decision-making.” or elements Yet, that the assert record

In support argument, plain- department of their the underlying shows that rec- tiffs claim that inadequate defendants failed three ords are reasons. First, use properly many record the or lack of use of of the underlying any specific employment practices applied missing files have simply documents. Sec- by any thirty-seven ond, many underlying executive files reveal departments, agencies branch thus making a statis- did not create documents analysis any separate place why tical im- first showing employees element possible. The after plaintiffs challenge having both were chosen not chosen of aggregate being lack DAS been data maintained screened DAS and minimal- ly documentation in de- for the underlying qualified position. Finally, the partment hiring agencies files. assert that did not scoring questions, nearly standards when interview one five did

apply common notes, applicants. not include interview and over twen- were used to evaluate systems ty-five percent did not include interview their claim that the de- support In scoring matrix. inadequate records were to al- partmental plaintiffs recognize aggre- The analysis by specific a separation low gate data can be divided into smaller employment practice, plaintiffs cite two parts. plaintiffs The concede that it is First, types of evidence the record. possible by Employ- to sort the data Equal in the record plaintiffs point to admissions (EEO) job Opportunity category, by ment agents. or con- by employees state When year, by step hiring in the process. of state sultant CPS conducted review plaintiffs But the maintain that such divi- the State in hiring practices for sion of the into not data smaller units does noted that files it reviewed “were not com- analysis anchor the statistical in specific why appli- some plete and did not indicate employment practices, simply but lessens cants were interviewed and others were sample analy- the size of the for statistical that its con- not.” CPS declared studies sis. persons firmed that the selection of minimally words, interviews from DAS lists of In other stacking documents qualified apрlicants created “a rebuttable year help employment does not focus on an impact” inference of adverse but noted practice stacking nor does documents that inconsistencies in the State’s records job category step hiring EEO in the department within the prevented process. slicing same The main effect of such dicing more detailed DAS at- is to lessen the When size tempted pursu- sample, thereby reducing power ag- to do an audit gregate analysis ant to Executive Order No. DAS offi- statistical without achiev- ing any they increase focus. cials indicated that found more lack of documentation than Exec. CPS. See Order short, plaintiffs they claim did the (2007), No. 4 at http://www. available they best could with the available data and statelibraryofiowa.org/services/collections/ aggregate analysis of disparate law-library/govexecorders/copy_of_exec specific was “as as the choices the Further, ordculver. while Executive Or- employer permitted.” ag- Based on the 4, among things, required der No. other data, they gregate point out that the racial agencies to the impact screening assess disparity hiring of applicants employee groups methods on in the selec- qualified job by deemed for the DAS was id., official, tion process, see when DAS statistically significant and that the likeli- incapable complying asked if DAS was occurring hood of the result in a race- with responded, Executive Order No. neutral environment was as much as two “Right. needed to We do more.” Ulti- one, depending billion to on the data set mately, DAS abandoned effort to its con- Further, used. assert duct an audit in compliance Executive the record showed that African Americans Order No. 4. forty percent would have a better chance being promoted they hired or if were

Second, plaintiffs analyzed the 667 white. produced by files the State in dis- covery. assert that an anal- plaintiffs point to Port Authority ysis fifty percent files reveals that Society Police Asian v. Port Authori- Jade did not include résumé screening ty, review support argument. their (S.D.N.Y.2010). devices, over one in ten F.Supp.2d did include In that case, identify particular district court held that because a employment prac- the records, an failed maintain tice the employer system promotion “[w]here is step be deter- pervaded “the role of each cannot criteria, a lack of uniform mined, the cannot be examined steps subjective [and] criteria that are as well vari- as separately particular able, to discover whether a discretionary placements pro- step disparate impact.” motions, causes a Id. at the failure to follow set proce- plaintiffs further connect the 464. dures and the absence written policies disparate impact shown their statistics or justifications for promotional decisions.” in accountability with the lack оf the Id. at 335. system. They point out personnel State’s In support of its opinion, the Stender experts

that their testified that accounta- Seidman, court cited Allen v. 881 F.2d 375 bility aspect integrated an important is (7th Cir.1989). Stender, 803 F.Supp. at employment working prevent standards Seidman, 335. In the court a considered invalid decision-making. biased or challenge Title brought by VII black bank Finally, to lack record addition employed by examiners the FDIC. subjec- note keeping, F.2d at The plaintiffs challenged 378. a tive manner which State makes its test, program thirty- evaluation which only personnel prevents separation decisions nine percent can- African American analysis specific personnel of more passed compared didates to eighty-four Watson, 989-90, practices. See atU.S. percent the white candidates. No Id. at S.Ct. 101 L.Ed.2d at 841-42. regression analysis performed. was Id. at The plaintiffs proposi- cite for the Watson 380. Judge Posner wrote that the statis- system employment tion that where an alone, tics any proof, without further es- features, objective subjective combines prima tablished a facie case. Id. He noted subjective should be in na- considered trial, that where “there has been full ripple subjec- ture because effect out, prima drops issue of facie case and the practices. According tive See id. question becomes judge whether Watson, plaintiffs, subjective under fea- chal- persuaded test other analyzed tures can be as one practice un- lenged practice is discriminatory because it impact analysis. der disparate impact unjustified by has a disparate legitimate defendant’s business needs.” In of its decision- support assertion that Id. 379. making processes objective that combine and subjective decision-making should be In Lufkin, the district considered n employment practice considered as one un- class case issue of certification law, der federal cite Stender employ where Americans sued an African Inc., Stores, F.Supp. v. Lucky impact theory. Lufkin, er on a disparate (N.D.Cal.1992) 335-36 and McClain v. Candidly 187 F.R.D. at 272. characteriz Inc., Industries, 187 F.R.D.

Lufkin convoluted,” ing “complex law (ED.Tex.1999). the district court canvassed the law on Stender,

In disparate impact the district court considered Id. at 272- claims. brought by respect a class action African American With the identification employees practices, and female working ap- recog the district proximately 150 to retail within nized Act of stores that under Civil Lucky’s required Northern Food Divi- plaintiff California demon challenged F.Supp. particular sion. 803 267. The Sten- ‘“each strate plaintiff employment practice der court declared that the need a disparate causes ” event, the State digital any format. employer’s deci except where impact’ in- provided maintains that it substantial capable is “‘not of sion-making process ” in digital BrassRing formation in form the (quot Id. at 272 analysis.’ for separation 2(k)(1)(B)(i)). Infor- system, and the Human Resource § ing 42 U.S.C. 2000e — (HRIS) which System system, data under Lufkin’s mation noted that Lufkin short, by DAS. In the array of were maintained broad employment process, “[a] plaintiffs that the were not ... sub State claims rest on employment practices ... analysis engage system-wide in both in central forced making” jective decision decision-making process of the was within each division because administration and case, analysis, ,As capable separation of for but 273. not Id. at in company. the sys- simply engage chose to a through a cen instead are channeled applicants challenge. tem-wide department resources tralized human objective meet the who where candidates emphasized plaintiffs The State that thé jobs are for forwarded minimum criteria showing of that had the affirmative burden un employees approval for management of process capable separation was not See id. guided by any objective standards. analysis. emphasizes for The State noted that “[t]he court further district inquiry. factual nature of the The State decision-making pro subjective pervasive plaintiffs further claims that at trial the facially neutral cess interacts with other testimony did not offer that decision- disadvantage to the employment conditions separa- of making process capable was not through ripple ef of African-Americans” tion for The State asserts that Concluding “Lufkin’s at 274. fect. Id. analyze plaintiffs sepa- never tried to in subjective employment practices [were] processes, simply or but practices rate intertwined,” the district court extricably system-wide on a ba- preferred proceed respondent’s de held that elements of highlights staggering The State sis. capable were not of cision-making process presented of information that was amount analysis purposes for of class separation BrassRing in the files and plaintiffs certification. Id. at 275. system. data The State notes the HRIS Killingsworth engaged analysis begins The State its dis- The State. category, by year, the data EEO and by asserting that whether cussion hiring process. decision-making process capable by step is State’s analysis question for is a separation Analysis Specific Employment B. plaintiffs’ fact. The State asserts-that Separation Incapable of Practice decision-making was process claim that the Analysis VII, Under Title as Amend separation fails because the capable Rights Act of 1991. Un ed the Civil attempted to make such an plaintiffs never plaintiff der the Civil Act of analysis they received volumi- because identify a disparate impact in a case must files. nous data amounts practice” being “particular employment alternative, or, in the demon challenged The State claims that the evidence dem- why decision-making plaintiffs employer’s that the never tried to strate onstrates capable separation “not identify аnalyze any particular process em- 2000e-2(k)(1)(B)(i). analysis.” ployment practice decision-making pro- U.S.C. plaintiffs suggests The district court held example, cess. For State hiring prac the State’s attempt did not to ana- failed to show that plaintiffs capable separation for anal lyze departments hard documents in the tice was not ysis. they because were not a convenient And, do not sented yield

On claim little value. appeal, the mere particular employment they identified fact that a days trial lasted seventeen does Instead, practice. contend not mean there must be substantial evi- that because the record demonstrates key dence supporting findings of fact. State, poor keeping record We put must the conclusory rhetoric subjective and because use of crite- consider, first, aside and what does it im- departments, ria in the various mean for an employer’s decision-making to possible engage in a focused anal- more incapable separation be of analysis? ysis of the practices State Then, once we understand meaning the of it beyond presented what in the case. Al- the statutory phrase, we must examine the though plaintiffs’ the evidence shows no- record to determine if the plaintiffs have potential disparate tice to the State of met their in burden this case. arising out of employment pro- its cesses, plaintiffs, plaintiffs like the On. the of issue what is meant a Wal-Mart, pursue notice/negli- did not process decision-making incapable that is gence-type theory. of separation analysis, parties pro- vide guidance. us with little No one dis- preliminary

A few matters should putes plaintiffs that the bear- First, the burden of be fact that discussed. mere proof on the But it issue. what does mean departments class involves number of to be “incapable” “separation” of for “anal- positions period and different over a ysis”? years by employer necessari one does not ly demonstrate that the State’s decision- begin We key with review of the three making process capable separation is statutory incapable, separation, words: relevant, analysis. To extent the class analysis. statutorily None are de- compact is much more than in case incapable fined.' The word generally re- Wal-Mart, employees where 1.5 million fers to something that cannot be done. fifty

were located 8400 stores all See Collegiate Merriam-Webster’s Dictio- at -, states. id. at See 131 S.Ct. ed.2002). (10th nary 585 Separation has 180 at 395. Many L.Ed.2d lower federal several different but meanings, related in- distinguished courts have Wal-Mart line, cluding “a or point, means divi- ground being challenged classes sion,” or intervening space.” “an Id. at compact.7 were more (“separate” 1064 used as a verb means to Nor fact State does the flooded or keep apart, set to remove from a mix- plaintiffs cоmputerized data and isolate). ture or to dispa- the context of documents There decide case. is no impact, analysis rate we believe the term question provided State databases analysis. must mean statistical contain thousands and Conclusory understanding thousands of bits of data. While of these three lawyers statutory helpful, statements witnesses re- is need terms we still information garding statutory the nature of the pre- probe the context. kind What See, Ass'n, kers, Meyer e.g., 7. cry v. U.S. Tennis 297 a far from Wal-Mart’s class 1.5 (S.D.N.Y.2013) (distinguishing F.R.D. million); Corp., Costco Ellis v. Wholesale class in' nationwide Wal-Mart from narrow (N.D.Cal.2012) (noting F.R.D. Open umpires); class of hundreds U.S. proposed class which was much Pierce, McReynolds Smith, Inc., Lynch, v. Merrill Fenner & employees smaller than the 1.5 million who (7th Cir.2012) 672 F.3d Wal-Mart). sought to be certified in (noting claim was limited to about 700 bro nation, Separated impact significantly adverse in is sufficient? separation context, 329-30, at from what? In seems creased. U.S. S.Ct.

isolated If the separated be out for 53 L.Ed.2d various clear that what must practices cannot be employment isolated analysis employers from the decision-mak- independently, they and considered are not particular employment ing process capable separate analysis. separation particular as the practices, practices is what the statute employment Third, employer the failure of the ordinarily requires. must keep adequate records can make an separate out em- they spin show cannot incapable separa decision larger from the whole ployment practices analysis. tion for See Port Auth. Police capable that are of statistical Soc., F.Supp.2d Asian Jade at 464. It their statutory Given these terms and Rights is true that the Act of 1991 Civil definitions, common sense it seems that a did not contain the more specific language incapable decision-making process proposed Act of 1990 Civil analysis under at separation of for least (which, above, provided as noted that a First, three the substan- circumstances. lack of records could excuse the particular tive the decision-making pro- features of ity requirement), adoption but the of the such that the cess itself be decision- general more of language Rights the Civil making incapable of process separation is certainly Act of 1991 is enough broad analysis specific employment for into prac- encompass approach such an and plainly That the teaching tices. is of Stender. If, preclude does not it. the example, F.Supp. (finding employee’s See 803 departments employer various of an do not “subjective ambiguous decision-mak- criteria, maintain records of interview in ing processes” incapable separation of cluding the manner in the which interview instance, analysis). wholly subjec- For scored, is by the scores awarded the decentralized, prоcess, tive even if would interview, employer based on the it is diffi be incapable separation of because of a plaintiff engage cult to see how a could lack objective of criteria. See Ronald D. analysis separate disparate impact. of A Rotunda, Act 1991: A Civil contrary result would be an incentive for of Introductory Analysis the Con- employers to keep adequate refuse to rec Brief of gressional Response to Interpre- Judicial ords of their employment processes. tation, 68 Notre Dame L.Rev. 934 Thus, employer who keep declines to (1993) (noting “hiring that are processes employment particular records from which complicated, often with ill-defined or ill- employment practices capable are sepa guidelines”). followed analysis may ration for face a lawsuit system-as-a-whole-disparate based on im Second, even well-defined employment pact. practices may be so intertwined as not

capable meaningful analysis separately. clear, Although point always the is not The classic Dothard v. example appeal is Rawlin on in this case not do son, argument solely 433 U.S. 97 S.Ct. 53 make an upon based one (1977). Dothard, Instead, height L.Ed.2d 786 plain- above scenarios. weight requirements hybrid for correctional tiffs argument, offered based positions counselor in the Alabama upon state a combination of the above factors. penitentiary system, if considered sepa plaintiffs argue that a combination of (1) (2) rately, had relatively impacts mild adverse ill-defined in- subjective practices, women, but when considered in of decision-making, combi tertwined elements (3) adequate keeping always lack of record be divided into countless different from employer prevented piles. key question them identi- But the is not whether specific employment practices for fying the massive data can up be divided into analysis. disparate impact purposes piles, the is question whether the any resulting piles demonstrated that discussion, Based on above might be do particular formed not reveal analysis district some employment practices capable that are separation appears on the issue off separation analysis. for statistical example, For de mark. the district court analysis clared that following hypothetical. Consider “job on the practice process focused a class of African Suppose Americans chal- specific” necessarily level. But this is not lenged system a state of thirty-seven merit plaintiff A is not required true. focus departments which hired thousands of per- job can specific on a level if it be shown ten-year over a period many sons over any potential job specific employment categories jobs. Suppose EEO further practices capable separation State admittеd that Indeed, such a contention is decisions were made at the unfettered dis- system-as-a-whole antithetical attacks managers cretion individual in each de- permitted statutory that are under partment. facts, Assuming no other exception U.S.C. 2000e- plaintiffs would be to bring entitled their 2(k)(1)(B)(i). Thus, the mere fact action class under Title because VII there data be down EE 0-4 could broken cate particular would no identifiable employ- instance, gories, for the does not mean practices ment capable that were of sepa- a plaintiff proceed system-as-a- cannot on (statistical) analysis. rate theory. whole hypothetical the Take above and add the Similarly, language there is in the provided fact that the plaintiff State the ruling suggesting district court the with a number of databases with hundreds existence of separate departments within points. Suppose thousands of data fur- employer prevented an the plaintiffs from ther that these documents included numer- proceeding a deeision-making-as-a- on résumés, job many ous miscellaneous de- theory. whole The mere fact that there job scriptions positions, the dates the departments within employer, an how conducted, interviews were and the names ever, does not in itself mean that a plaintiff managers who made the decisions. the decision-making pro cannot show that barrage plain- Would data mean the analy not capable separation cess is proceeding tiff from on sys- was barred demonstrate, plaintiff sis. If the can tem-as-a-whole basis? instance, departments do op separate erate under and identifiable em might The answer be Even if no. the practices, or ployment that the records are data thousands or even millions of contains alleged department prac so deficient the information, may the plaintiff bits of show separately analyzed, tices cannot be then provide the data does not basis for a plaintiff proceed be able may to identify particular to plaintiff employment theory. decision-making process as a whole decision-making practices employer’s (sta- short, subject process separate In that are plaintiffs fact were tistical) short, In provided analysis. with that can the amount lots data me- chanically produced be information is irrelevant. It is sliced diced numerous ways proves nothing; key. quality massive data can the of the information that is but these are not procedural steps, cal or change hypothetical us now

Let employment practice of an equivalent the data further that Assume somewhat. subject that is more substantive with sufficient definition contained dump in fact Further, analysis. Killings- pro- statistical decision-making information on the really two could not step of worth testified data was a collection Suppose cess. three, files, the final deci- separated step from employment imperfect individual The dis- sion-making step process. specific job relat- many of which contained finding specific not make a criteria, scoring inter- trict court did or matrices ed sepa- step from whether two could be scoring resulting regarding viewees and step three. interviews, ma- rated or isolated from significant and other such Now, hiring process. under terial on the Nonetheless, point- as the district court hypothetical, plain- could the this modified out, prob- further plaintiffs have a ed identify specific employment practices tiff central parties utilized lem. While (statisti- subject separate that could be what the maintained DAS for databases cal) analysis? “slicing and accurately called district data, Nonetheless, the databas- dicing” does of the statistical the above discussion may inadequate engage have been prevail. must Un es not mean the Wal-Mart, policies for plain analysis specific employment der Wards Cove by department or other specific disparate impact show there were not tiffs still must so, Even employment practices nonsystem-wide approaches. within the universe maintained hard system departments merit themselves employment of the state employment records that aggregate they copies sufficient numbers that file have included more information than was separated meaningful could be out for sta Wal-Mart, question available on the database. tistical See U.S. at -, 2555-56, plaintiffs adequately 131 S.Ct. at 180 L.Ed.2d arises whether Cove, 394; at this information could not have proved Wards U.S. separate been utilized to out S.Ct. at 104 L.Ed.2d practices by departments have the various prevail, order to would separa- job agencies capable to show that the vast universe of selec that would be smaller, analysis. the tion could not be divided into bet tion for While data in the hard files specific employment hiring ter defined subsets of claim the incomplete, question the remains whether practices points with sufficient decision information in the hir- capable analysis. of statistical there was sufficient meaningful data- ing files construct The court seems to have found district analyze specific employment prac- base to inadvertently plaintiffs may that the have tices. just plaintiffs’ expert done that. The findings The district court made related Killingsworth Mark testified he could sta- analyze underlying documents. It declared tistically disparate impact the to the permit a parties step hiring what the called two of the that “the files themselves screening of the ‍‌‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​​​‌​​​‌‌‌‌‌‍different de- analysis, namely, stage at the where DAS focused view referral, inter- practices and vices and minimally qualified applicants cleared view, any given passed depart- applicants them onto the individual Further, But, job departments.” for an interview. between the ments for selection that “one can fo- step employment prac- we doubt two is an the district court stated employment of discrete “capable separation analysis.” any tice cus on number individual, separate, dis- employment chronologi- All have decisions made as processes times employment practices” provided incomplete, and district crete court on the examples, including a “second résumé record before it could conclude 'that the “spelling grammar and a screen” plaintiffs failed to show the negative, screen.” namely, that employment practices could not be extracted from the underlying docu- support

Read a fashion to the district analyzed ments and in a statistically signif- verdict, findings court’s these demonstrate issue, icant manner. On this the district district that employment court found result, court got right. As a under could be extracted from the un practices law, applicable federal the State was enti- derlying documentary statistically files and tled to summary judgment on the record analyzed is, in a meaningful way. There developed in the plain- district court on the however, no requirement defendants tiffs’ claim under Title VII of the Civil prove capa practices Rights Act of 1964. separation meaningful ble statistical precise issue is wheth legal Specific V. Employ- Discussion of er met burden in their show Incapable ment Practice particular employment prac ing Separation Analysis Under could separated analyzed tices not be Rights Iowa Civil Act. the documentary from files maintained § the State. See 42 U.S.C. 2000e-2 question We now turn to the of whether (k)(1)(B)(i). short, In at least under the the defendant was entitled to summary theory litigated by par case as judgment Rights under the Iowa Civil Act. ties, the plaintiffs prov have burden of See Iowa Code 216.6. Although it is of ing negative. said rights ten state civil acts were correctly conclude the district court patterned We after the Federal Rights Civil Act, adversely plain- resolved the issue twenty fact more than state civil finding supported tiffs that such a rights acts predated Federal Act. See by substantial Bonfield, evidence record. Arthur E. State Rights Civil Killingsworth underly- did not review Proposals, Statutes: Some 49 Iowa L.Rev. ing documentary (1964) files and offered no tes- states). (listing & n. 140 timony indicating specific employment an important advocating pas article practices could not be from extracted Act, sage of the-Iowa Civil Bonfield underlying analysis files for statistical extensively relied state pro models in notwithstanding the flaws some of the legislative in Iowa. posing action See id. at Miller, expert, suggest- files. State’s (discussing states’ antidiscrimination laws). ed the were underlying capa- documents Thus, the Iowa though Rights Civil separation ble of Dr. for Green- year Act was enacted in the following the characterized wald files as “a Act, Rights enactment of the Federal Civil gold analyzed.” mine that hasn’t been Iowa Act Rights Civil draws on sub underlying it is While true the files were legislative stantial state as federal as well flawed, incomplete often that does not (review See at 1095-1123 precedent. id. necessarily mean employment practices ing states’ antidiscrimination laws pro not be statistically Iowa). could identified and an- posing statutes for way. in a alyzed meaningful The substantive of the provisions Iowa line, Rights bottom on the record Civil Act and Title VII Civil us, Rights before is that while the dem Act of are often similar recordkeeping though respect onstrated was some- not identical. With to dis (internal employment, precedent crimination in the Iowa Civil from federal quotation omitted)). Rights provides Act shall be an marks An Iowa court faced “[i]t discriminatory any practice competing legal interpretations unfair or Rights ... to refuse to hire” or “other Iowa Act must [plerson keep Civil mind in employment against legislative broadly wise discriminate direction of inter any applicant employment any preting em the Act when choosing among ... ployee plausible legal Any because of race.” Iowa Code alternatives. state 216.6(1)(a). § The parallel provision adopts un court decision that a narrow con Rights provides Act by der Federal Civil struction of Title VII the United States be an unlawful Supreme confronting shall Court without the re “[i]t ... practice employer quirement for an to fail or in Iowa law that the Iowa Civil Rights refuse to hire ... or otherwise discrimi interpreted broadly Act be misses against any nate individual because of ... an essential difference in state and federal 2000e-2(a)(1). § race.” 42 U.S.C. civil rights laws. are, however,

There differences Even language where in a federal rights between state and acts. For state civil statute parallel is instance, legislature Act, the Iowa has Rights declared Federal Civil a state court is Rights that the Iowa Civil Act “shall be obligation prece under no to follow federal broadly construed pur effectuate its dent. Supreme As noted the Vermont 216.18(1). Court, poses.” Iowa There rights Code federal civil decisions no language persuasive, similar the Federal they only Civil but are not and, indeed, Rights Act persuasive case can be sources of authority on the in made that the recent cases of the terpretation United of state civil rights statutes. Court, Co., States Supreme particularly Lavalley Whiting Wards v. E.B. & A.C. Wal-Mart, (1997). 205, 367, Cove and tend to construe the Vt. 692 A.2d Federal counterpart narrowly. federal Other state court decisions under the Federal Civil courts have interpreted legislative courts, similar binding Act are not on state directions to mean that the remedies af are free persuasive to consider other which rights forded the state civil authority statutes independent come to conclu require See, the “widest constitutional applica e.g., sions. Brown v. F.L. Roberts & Co., tion.” Emp’t 1279, Fair Practices v. Comm’n 452 Mass. 896 N.E.2d (2008) Ctr., Rush-Presbyterian-St. (noting Luke’s Med. “frequently” the court does 41 Ill.App.3d 354 N.E.2d reasoning 600 not follow the prece of federal (1976); see Mktg. also Frieler v. Carlson dent in interpreting rights the statе civil Inc., (Minn. (internal Grp., quotation N.W.2d 571-73 statute marks omit 2008) (reviewing ted)); Co., interpreta various courts’ Elezovic v. Ford Motor “supervisor” (2005) tions of the term and conclud Mich. 697 N.W.2d ing purposes (finding supervisor sexual harassment liable for sexual law, claim under state the court would Michigan harassment under civil rights adopt statute, a broader view because state law noting compelled that “we are not (in required “liberal construction its to follow ... interpretations” federal terms”); Inc., omitted)); Frieler, Genaro v. Transp., quotation Cent. 84 ternal marks (1999) 293, 782, Ohio St.3d 703 N.E.2d 785 751 (considering varying N.W.2d at 571-73 (citing language that chapter interpretations the state supervisor term “shall be liberally harassment); construed for the accom claims of sexual Grimwood plishment Sound, Inc., of purposes” departing its v. Puget Univ. 110 Wash.2d of

29 (1988) 517, 355, (noting legislation response 520 753 P.2d decision. See 2000e-2(k). § are of federal cases a source 42 Congress these U.S.C. “[w]hile recent- they bear in mind that guidance, ly we overrode the restrictive United States adopt binding that we are free to not Supreme Court cases of v. Sutton United and rationale which best Lines, those theories Inc., 471, Air 527 U.S. 119 S.Ct. mandates of our purposes further the 2139, (1999), 144 450 Toyota L.Ed.2d statute”); Goodyear Tire & Rubber state Manufacturing, Kentucky, Motor Inc. v. Indus., 56, 273 Dep’t Co. v. 87 Wis.2d Williams, 184, 681, 122 U.S. of S.Ct. 786, (Wis.Ct.App.1978) (noting N.W.2d (2002), L.Ed.2d 615 through the ADA Wisconsin “must construe courts Wiscon 2008, Amendments Act of Pub.L. No. 110- as it believed the sin statutes Wisconsin 325, 2(b)(2)-(5), 122 Stat. 3553. Similar- intended, legislature regardless of how Congress ly, response acted in to Ledbetter Congress comparable have intended Goodyear by v. Tire & Rubber Co. enact- Baldon, statutes”); State v. cf. 618, ing legislation. curative 550 U.S. (Iowa 2013) 785, J., 811-16 (Appel, N.W.2d 2162, (2007), S.Ct. 167 L.Ed.2d 982 super- alia, (noting, concurring specially) inter statute, by Lilly seded Fair Pay Ledbetter provisions that state constitutional need 2009, 111-2, Act of Pub.L. No. 123 Stat. 5. uniformly be with interpreted federal frequent narrow construction civil parallel caselaw under federal constitution laws rights by Supreme the United States provisions). generally al See Alex B. Court, by congressional followed interven- Long, Jump the Train Should “If tion, has been as a ground cited de- Divergent Interpretations Track ... creased deference to United States Su- Employment State and Federal Discrimi preme Court decisions state courts. Statutes, 469, nation 40 Ga. L.Rev. 482-83 See Sperino, Revitalizing, 20 Geo. Mason (2006) (finding parallel indepen between (“To at 564-68 L.Rev. extent that the interpretation dent state constitutional [employment federal development independent state interpretation depends frameworks on discrimination] statutes). state discrimination statutory references to languages and its Recognition independent charac- time, development historical over reading rights ter of state civil is particu- statutes state statutes accordance these larly important Congress passes leg- when highly suspect.”); federal frameworks is designed islation to overcome decisions of Sperino, Diminishing F. Sandra Defer- Supreme the United States Court narrow- Leаrning Recent ence: Lessons Con- from ly civil interpreting rights statutes. For gressional Rejection Supreme instance, Supreme when United States Interpretation Court’s Discrimination Court held in General v. Gil- Electric Co. Statutes, 40, Rutgers L. Rec. 42-43 pregnan- bert that discrimination based on (2009) (arguing “repeated Congres- discrimination, cy Congress was not sex rejection Supreme [the sional Court’s 125, overrode the decision. 429 U.S. 138- interpretations rights of civil stat- narrow 401, 409-10, 50 L.Ed.2d S.Ct. suggests] regimes that state should utes] (1976), statute, superseded Preg- may likely not be so beholden what nancy Discrimination Act Pub.L. faulty interpretation part 95-555, recognized No. 92 Stat. Court”). Supreme Inc., Lines, v. Air Shaw Delta 463 U.S. (1983). legislature of the Iowa 103 S.Ct. 77 L.Ed.2d 490 failure Supreme legislation, After the to enact similar curative howev United States Court er, Cove, Congress particular decided enacted is of no moment when there Wards construing in judicial interpretations con to federal no similar narrow has been Rights by Rights Act Act but are not bound of the Iowa Civil Iowa Civil struction And, at 803. in binding by cases are not them. 672 N.W.2d court. Federal holding supervisor may personal- that a be law and thus there is questions of state through ly them state liable for harassment under section need to override no 216.6(1) Act, Rights of the Iowa Civil we As noted Ver legislative action. Court, favorably cited a New York case constru- legislature a state is Supreme mont Vivian, every federal law. See 601 N.W.2d at required ing not to “react state 877-78. interpreting Title VII or risk decision interpreted as an en

its inaction will be line that the Iowa The bottom is the federal decision.” Laval dorsement of indepen of law Rights Civil Act is source at 370. ley, 692 A.2d In Rights dent of the Federal Act. Civil with principles are consistent above Act, look to federal construing may we in v. example, our caselaw. For Hubbard none of which precedent, and state court State, noted that we binding, may persuade but which us in [although interpretations decisions and interpretation of the Iowa statute. may be illustrative and of federal courts the Iowa making choices under Civil in construing instructive to state courts Act, Rights we must mindful patterned after those enacted statutes legislative direction that the Act be broad great by Congress and entitled to ly interpreted purposes. to effectuate its weight determining 216.18(1). in construction to be Iowa See Code subsequently in given phrase the same however, brief, in their do plaintiffs statutes, they enacted are neither state explicitly interpret not invite us to compulsory, especially conclusive nor Rights Iowa Civil Act a fashion different substan- appears when it earlier statutes Rights than Title of the Federal Civil VII tially similar have also been enacted “generally plaintiffs Act. The declare other states. speaking,” burden-shifting ap- the same (Iowa 1969) (emphasis 163 N.W.2d proach applied is under the Iowa Civil added). Here, Rights the Iowa Civil Act Act Title Rights applied as is under VII only year after the Feder- was enacted one Rights the Federal Act. But Civil preexisting al Act and thus there was little go They even further. seem to “great caselaw that would be entitled to take the view that the criteria established weight” under Hubbard. See id. Fur- Rights apply Act of 1991 also Civil ther, Rights at the time the Iowa Civil Act Act even under Iowa Civil statutory were state passed, there also though comparable statutory there was no may provide helpful which counterparts, simply amendment. Plaintiffs state that (“Where precedents. id. the lan- See law,” identify must plaintiff under “the guage has been borrowed from the stat- specific employment practice or show that light of a we go utes sister state would capable decision-making process not ... of construing decisions Thus, separate analysis. state.”). make the substantive appear do Hubbard, argument we look to that Iowa law should embark on Consistent caselaw, path federal and the caselaw of other a different than reflected Wards amendments to rights subsequent states under their state civil stat- Cove and the utes, or from persuasive guidance. adopted Congress For exam- Title VII Pecenka, ple, we noted that we look Wal-Mart.

31 See, today. State, a question e.g., King We thus must confront alive v. 818 1, (Iowa 2012) private ap J., A law preservation. narrow N.W.2d 47 n. 52 (Appel, suggest narrowly would that we proach dissenting) (reserving question of whether only advanced questions IX, 1, decide article section division 12 of the Eisenberg, Melvin Aron Par parties. See provides Iowa Constitution enforceable- and the ticipation, Responsiveness, Con rights education); public to a State v. Essay sultative Process: An Lon Lowe, 554, (Iowa 812 593 n. N.W.2d 23 for Fuller, 410, (1978) 92 Harv. 413 L.Rev. 2012) J., (Appel, concurring part in and (advocating strong responsiveness to the dissenting part) (reserving in the question as the parties arguments parties “insofar of whether Iowa should abandon the multi- contemplate that the will settle their court factor Schneckloth v. Bustamonte test in on the basis of the issues as the dispute the search and seizure context in favor of a them”). hand, see other parties On the consent); requiring knowing voluntary dealing public questions, law Ct., 513, State v. 801 Iowa Dist. N.W.2d responsibility has a for the develop (Iowa 2011) 518 n. (reserving question of of law cannot generally ment allow participation whether sex offender advocacy of private parties dictate requiring treatment program offender to development. generally See Abram legal past admit crimes violated due process Judge in Chayes, The Role Public constitution); under the state State v. Eff Litigation, 89 L.Rev. -1281 Law Harv. 880, 890, (Iowa ler, 769 N.W.2d 895-97 (1976). question was ex preservation 2009) (re J., (Appel, concurring specially) plored depth at some in the context of serving important question of whether law in Feld v. Bor development common should reject majority we view ex kowski, (Iowa 2010) 790 N.W.2d 82-86 States, pressed Davis v. United U.S. J., concurring part and dissent (Appel, S.Ct. L.Ed.2d 362 part). ing in (1994), in dissenting position). favor of the context, In the constitutional we have adopt approach We could a similar on an party stated when a raises both federal statutory issue of of parallel construction claims, state constitutional but does statute. establish a substantive different stan- case, struc between the state and federal consti- dard litigation tured the and advanced argu tutions, we assume the federal standard solely upon ments federal law based stan right apply but reserve applies, Had dards. advanced an in a from standard fashion different feder- argument law Edouard, departing under state from al courts. See v. State 2014) (Iowa federal J., precedent, example, that a (Appel, N.W.2d 452-54 practice particular employment is not a concurring specially). Using this ap- requirement Iowa we under the Civil proach, day have reserved another Act8—a very important might some constitutional issues different factual record that, have been at trial. developed Specifical under the Iowa instead Constitution earlier, being very ly, attempt the State to present decided remain much did not employees identify] troubling apparent specific "Also is the Court’s re- isolat[e] allegedly employees’ proof employment practices burden of that are definition of the re- Cove, sponsible any dispari- disparate-impact in a Wards observed statistical case.” (internal omitted). quotation 109 S.Ct. 104 L.Ed.2d at ties." Id. marks U.S. (Stevens, J., prima proof requirement dissenting). "No facie “This additional is unwar- declares, made, will be unless the ranted.” Id. case upon necessity, based business uploads/2012/05/Pippen-Ruling.pdf. defense majority’s discussion of the law includes plaintiffs’ response and the State’s unnecessary dicta to ex- holding. its For If, damage quite claim was limited. for majority gratuitously the ample, under- plaintiff was example, the State knew long-standing mines our court’s practice law, theory of relying upon a different relying interpret on federal decisions to might develop- have affected the factual equivalent provisions of the Iowa Civil ment at trial. Under these circum- Yet, Rights majority’s Act. analysis of stances, arguments we decline to address the dispositive cursory. issue is Given the by that were not the plaintiffs advanced case, importance of this I offer a more at trial. analysis of the to complete grounds affirm Nonetheless, parties even when the have judgment the dicta to respond argued princi- not for different substantive guide help cases to follow. we ples, apply principles still ad- Plaintiffs are a certified class of over vocated parties a fashion differ- 5000 members defined as African “[a]ll Edouard, ent than the federal courts. See applicants employees American who J., (Appel, at 452-54 concur- N.W.2d sought appointment to or held a merit- Yet, ring specially). we no find basis to do system position with an Executive Branch so in this case. Under the framework (not agency including Regents) Board of court, presented to the district which for 1, 2003, any point July from through April purposes adopt, of this case we They brought disparate 2012.” impact plaintiffs failed to underly- show that the racial discrimination claims under Title ing provide documents did not sufficient Rights VII Civil Act of 1964 and the information to allow practices (ICRA). Rights Iowa Civil Act of 1965 separated meaningful to be statistical rights These civil laws were enacted to result, a given posture As discriminatory eliminate practices, provide case, we affirm the decision of the discrimination, remedies and allow district court under the Iowa Civil equal opportunities in employment. De- Act. fendants are the State of Iowa and its thirty-seven executive branch depart- VI. Conclusion. ments. There are over types of em- reasons, For the above the district court ployment positions within the executive judgment is affirmed. AFFIRMED. During period, branch. the relevant near- 500,000 ly applications were submitted All justices except concur 100,000 20,000 applicants openings. WATERMAN, MANSFIELD, and Approximately supervisors within the ZAGER, JJ., who concur specially. executive branch authority have in the hir- WATERMAN, (concurring spe- Justice ing process. sought prove Plaintiffs cially). trial that the hiring system State’s overall during period the relevant time discrimi- I respectfully only. concur in the result nated on the basis race. I am unable join majority opinion’s affirmance of the thorough, district court’s Disparate impact generally requires law well-reasoned decision on the merits in prove particular employment State, favor of defendants. See Pippen v. practice a disparate impact. caused LACL107038, No. 05771 2012 WL 1388902 majority fails to purpose discuss the of this (Iowa 17, 2012), April Dist. proof Ct. available at requirement, which is to enable the http://www.iowaappeals.com/wp-content/ district remedy court to fashion a correct- ing discriminatory practice light without af- trial evidence in the most favorable to fecting other that are not dis- practices the judgment. Falczynski v. Amoco Oil Congress criminatory. enacted narrow Co., (Iowa 1995). N.W.2d I exception general requirement. to this will expert elaborate testimony dis- prove do have to Specifically, plaintiffs cussed by majority opinion. particular employment practice had a notes, As majority plaintiffs present- if discriminatory they prove the hiring process incapable State’s ed testimony from expert three witnesses. See “separation analysis.” for U.S.C. Anthony Cheryl Greenwald and Kaiser 2000e-2(k)(l)(B)(i) (2006). event, In that regarding testified the social science of law them of burden of relieves implicit-bias stereotyping how implicit and attributing particu- the discrimination to a biases affect Kaiser decision-making. ex- Here, employment practice. plain- lar plained explicit the difference between and sought proceed excep- tiffs to under implicit explicit “conscious, bias: is bias tion. deliberate, animosity,” controlled whereas trial, Following month-long bench implicit bias is due to negative unconscious employ- district court found the State’s stereotypes—that people associations — decision-making process capable ment have over developed Implicit-bias time.9 separation of for For the rea- theory helps explain how dispar- statistical below, explained sons I conclude the “ca- ities can result without intentional discrim- of pable separation” finding supported ination: implicit individuals act on biases dispositive. substantial evidence and is without recognizing they doing so. agree judg- I therefore district court Greenwald testified unconscious bias leads ment must be affirmed. to particularly subjective discrimination Background I. Additional Facts and decision-making and that test groups most Proceedings. seventy demonstrate percent uncon- preference scious over whites blacks.10 required As our of under standard re- role, And, appellate customary view our we review the as is in a disparate impact process 9. Research more into of socialization callbacks than résumés with "black names”); Bennett, development Judge. and of social led [has] norms to see also W. Mark understanding development an Unraveling Implicit the Gordian Knot Bias stereotypes consequent prej- biases and Jury Judge-Do- Selection: The Problems —and Dire, udices —is not a function of an aberrational minated Voir Failed Promise Bat- mind, cog- son, but instead outcome of normal Solutions, Proposed and Harv. L. & processes simplifying nitive associated with (2010) Pol'y (discussing Rev. 151-158 storing overwhelming and information implicit-bias jury research as it to relates se- quantity complexity people and encoun- lection); Richardson, Song L. Arrest Efficien- daily. ter Amendment, cy and the Fourth Minn. (2011) Hart, (discussing implications Subjective L.Rev.2035 Decisionmaking Melissa and Discrimination, implicit police-citizen bias interactions Unconscious Ala. L.Rev. (internal (2005) jurisprudence, and Fourth Amendment quotation marks omitted). proposing "debiasing police Implicit-bias ap- strategies" research its departments). plication legal thoroughly theories has been legal scholarship. Jerry reviewed in See Race, Trojan Notably, Kang, Greenwald is an inventor of the Horses 118 Harv. Test, (2005) widely Implicit used meth- (providing L.Rev. & n. 122 Association measuring summary implicit Project od of See employment-related implicit-bias bias. studies, Us, including experiment Implicit, https://www.projectimpli where About résumés (last 10, 2014). July fifty percent with "white names” received visited cit.net/about.html differently in employees were treated testimony can case, presented Killingsworth economist evaluations. expert, performance labor a statistical from findings any particu- connect his Killingsworth.11 Mark did not practice.13 lar State analysis limit his chose to Killingsworth by DAS to the applications referred Miller, labor economist Robert another (thus effectively excluding ap- depаrtments per- also expert, the State’s statistical satisfy qual- minimum did not plicants who analyses. regard regression With formed review).12 Killings- from his ifications he found no sta- wages promotion, years for the system-wide review worth’s between tistically significant differences African- 2008 showed that through experience into account taking races after statistically were less applicants American job for which the pay grade and the inter- applicants white to be likely than Killings- He criticized applied. individual every year. For ex- viewed and hired inadequate as because regressions worth’s percent nine of African- ample, in adjust for these other fac- they failed to interviewed, were applicants American tors. twenty percent appli- of white compared hiring, Miller subdivided regard With year, 1.8% of African- cants. That same steps three that the State his work into the hired, were as com- applicants American Thus, get to its actual hire. followed to Over- pared applicants. to 4.2% of white only considered Killingsworth, unlike who all, minimally showed that a analysis his them, and combined steps two and three forty qualified person percent white had one, separately steps Miller considered mini- being chance of hired than a greater i.e., two, three, step and three. At what American. mally qualified Split- African an in- applicant granted occurs after the analysis department, Killings- ting by his interview, statisti- Miller found no person statistically worth testified there was difference between whites cally significant significant disparity percent- between the being in their success in hired. blacks applicants hired age of African-American one, statistically Miller found no step At applicants of white percentage and the significant difference between white though many departments, hired in getting a referral. On applicants further testified black Killingsworth not all. basis, that, hired, though, African per application once white and African-Ameri- applicants Notably, study by the actual number of because the CPS mentioned regression analyses tracking system did not track individu- majority perform did not State’s people, applications. rather Both the possible variables that al but excluded other acknowledged plaintiffs' experts reported. State's and could account for the differences disparity applicants applied on aver- pointing After between refer- African-American out interviews, age jobs applicants. acknowledged, for 1.6 more than white rals and CPS short, parties agreed very legitimate both that African- “There could be ... reasons average, applicants, followed a why percentage African Americans is American strategy casting job search dramatically a wider State reduced so between referral applicants. acknowledged than white interview” and that "the team net reason(s) a definitive was unable to determine for these outсomes.” 13.Killingsworth acknowledged he result,” any only not total ”[t]he looked employment practice other than Killingsworth expert, particular 12. Both and the State’s Miller, any "hiring” not offer applications opposed as a whole. He did Robert used —as disparities he were opinions that the observed applicants their unit of As —as noted, objective subjective opposed to study identify the result of the CPS it is difficult to hiring practices. makeup applicant pool the exact or the Americans were less successful than tentially available for possessing various However, skills, in getting computer whites a referral. five points available for (or data also showed that being African-American a veteran ten for being a dis- applicants, veteran), on average, applica- filed more abled points five available for tions than (approximately “ability whites 5.9 ver- to follow resume and cover letter sus 4.3 per applicant multiyear over a submission peri- directions.” These files were difference). thirty-eight od—a percent provided to or reviewed Killings- it, worth. As Killingsworth put “I don’t step At two—referral to interview—Mil- any have access or haven’t any had findings ler’s were more nuanced. On the files.” whole, he found that African Americans statistically

were likely less to receive a Miller testified that the data were “abso- department job interview after appli- their lutely” capable of separation for analysis, cation was referred Probing DAS. more fact, and in separated he them to the deeply, he only found this was true for extent noted. about one-third of State departments. It Analysis. II.

was not true for remaining two-thirds departments. explained, As Miller On appeal, plaintiffs argue do not overall

[t]he conclusion with respect to the State’s failure to follow equal- its own step two is that a common factor could employment-opportunity policies constitut- not or appear does not to be operating ed a discrete employment practice. In- departments across all the stead, same plaintiffs challenge the district way, because our results show that there court’s determination that the State’s over- are clear departmental differences. all process was capable separa- tion Plaintiffs argue the hir- specific For jobs that the thirteen ing process analyzed could not be plaintiffs for, terms applied named had Miller of separate practices. Plaintiffs also as- found that African Americans were not appeal sert on that the district court erred statistically likely less get to interviews in determining they failed prove to causa- than whites. tion. Because the district correctly paper reviewed hiring files issue, decided the dispositive separation produced by the State for 667 separate we need not reach the causation issue. I positions that were filled. Based on the provide will an overview of the governing record, examples in the these files con- place law to the separation issue into con- résumés, tained items such as applicant text. reviews, score sheets for résumé score interviews, sheets for asking Disparate Impact letters A. Law. Title VII of (and decision) for authority justifying the the 1964 Rights Civil Act’s “central statu- to hire the successful applicant. For in- tory purposes eradicating [are] discrimina- stance, for the position of workforce advis- tion throughout economy making or in unemployment insurance service persons whole injuries suffered center, Iowa Development Workforce through past used discrimination.” Albemarle a résumé review 405, worksheet that awarded a Paper 421, v. 422 Moody, Co. U.S. 95 fifty-nine maximum of points. 2362, 2373, There were 280, S.Ct. 45 L.Ed.2d 299 (1975). a twenty maximum of points potentially end, To that Title VII seeks “to education, available for ten points poten- eliminate those discriminatory practices tially unemployment available for insur- and devices which have fostered racially experience, ance claims points fourteen po- job stratified environments to. the disad- 36 merely in the sense of the fabled offer of minority citizens.” McDonnell

vantage of Green, 792, 800, 411 milk to the stork and the fox” is insuffi- U.S. Douglas Corp. v. VII). 668, 1817, 1823, 36 L.Ed.2d 676 cient under Title 93 S.Ct. (1973). was modeled after “The ICRA three-step burden-shifting A framework and enacted to serve the same Title VII” applies disparate impact to claims. in an passed it “was purposes: case, stage, prima first to establish facie parity workplace effort to establish plaintiff employer a “ must show for all.” v. opportunity and market Vivian particular employment practice ‘uses a (Iowa

Madison, 872, 873 601 N.W.2d disparate impact’ that causes a on one of 1999). prohibited City bases.” Lewis v. 205, 212, 2191, provide Chicago, and the ICRA each 560 U.S. 130 S.Ct. Title VII (2010) 967, prove employment (empha 176 L.Ed.2d principal ways two omitted) § impact (quoting sis 2000e- disparate discrimination: dis- U.S.C. 2(k)(1)(A)(i)). Stores, parate Hy-Vee “Identifying specific prac treatment. Food Comm’n, 453 tice is not a trivial burden....” Meacham Inc. v. Iowa Civil (Iowa 1990). Lab., The funda- v. Knolls Atomic Power N.W.2d U.S. 2395, 2406, mental difference between the two theories 171 L.Ed.2d S.Ct. (2008). Second, disparate theory plaintiff is that “the treatment if the makes motivation; employer’s prima showing, focuses on the facie the burden shifts disparate impact theory focuses employer prove the chal consequences employer’s lenged employment practice conduct.” reflects a requires necessity. Disparate plaintiff Id. treatment business See U.S.C. (k)(1)(A)(i). Third, prove plaintiff intentional discrimination. Id. 2000e-2 the employer’s rebut business-neces theory Disparate impact, sity by demonstrating evidence there are trial, presented presents an avenue for “other reasonable alternatives that would addressing inequalities in the absence of have less adverse impact,” Hy-Vee, 453 In a disparate intentional discrimination. and the defendant “refuses N.W.2d case, what matters is not the sub- adopt such alternative jective employer, motivation of the but the 2000e-2(k)(1)(A)(ii). § practice,” 42 U.S.C. practice. effects of an employment Griggs Only stage the first is at issue in this Co., 424, 432, v. Duke Power 401 91 U.S. appeal because the district court held that (1971). 849, 854, 158, 28 L.Ed.2d S.Ct. 165 failed to prove prima their facie Disparate impact prohibits employer prac- case. facially tices “that are neutral in then- groups particular employ- treatment of different but that in The identification of a harshly group fact fall more on one ment practice stage helps than first remedy another.” Int’l Bhd. Teamsters v. court ascertain and Unit- the cause of of States, 324, 15, disparities. par- ed 431 U.S. 335 n. 97 S.Ct. racial Proof focused on a 1843, 15, 396, employment practice 1854 n. 52 L.Ed.2d 415 n. 15 ticular enables the (1977). comparison “qualified Meant to remove barriers to em- relevant between ployment promotion that are persons per- unrelated the labor market and the job to performance, disparate holding jobs.” the focus of sons at-issue Wards Cove Atonio, 642, impact theory 650, in operation— Packing is on fairness v. 490 Co. U.S. 2115, 2121, 733, not fairness in Griggs, form. 401 U.S. at 109 S.Ct. 104 L.Ed.2d 747 431, 853, (1989), 91 at 28 at 164 on other superseded S.Ct. L.Ed.2d statute 2000e-2(k), (commenting “equality opportunity grounds, recog- 42 U.S.C.

37 Stores, Dukes, nized in Inc. v. The particularity requirement Wal-Mart allows the U.S.-, 2541, 564 181 180 S.Ct. L.Ed.2d to fashion an appropriate remedy: if (2011). 874 particular a employer practice is identified as causing discriminatory impact, the court States Supreme United Court cau can order employer to correct it. Title using tioned that overbroad statistics to VII the courts equitable “arm[s] with full prove disparate claim “would re powers” in order to address violations. sult in employers being potentially liable Albemarle, 418, 422 U.S. at 95 S.Ct. at myriad ‘the innocent causes that 2372, 45 L.Ed.2d at 297. A court must be lead to statistical imbalances ” able to determine the cause of discrimina- composition their work forces.’ Id. at tion effectively ‍‌‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​​​‌​​​‌‌‌‌‌‍equitable exercise these 2125,104 at S.Ct. L.Ed.2d at 751- powers. As Supreme the United States 52 (quoting v. Fort Bank & Watson Worth Court has long recognized, the usefulness Trust, 977, 992, 487 U.S. 108 S.Ct. “depends statistics on all sur- (1988)). 101 L.Ed.2d “Title rounding facts and circumstances.” Int’l guarantees VII the opportu [individuals] Teamsters, Bhd. at U.S. nity compete equally white work 1856-57, S.Ct. at L.Ed.2d at It is criteria,” job-related ers on the basis vital to particular determine the employ- guarantee but does equal not outcomes. practice ment causing the disparate impact Teal, 440, 451, Connecticut v. 457 U.S. problem. order to fix the 2525, 2532-33, S.Ct. 73 L.Ed.2d (1982). For example, the As the ex record shows that Af- Wards Cove Court rican plained, actually Americans comprise high- if allowed use er percentage of the aggregated prove statistics alone State executive dispa branch they workforce than impact, rate it is difficult do in Court to Iowa Yet, workforce as a whole. determine if racial it would be composition hires wrong to is at conclude from that odds with relevant labor overall num- qualified 650-52, ber that discriminating market. U.S. the State 109 S.Ct. at 2121-22, 104 the basis of race. One L.Ed.2d at 747-48. has to focus on practices. actual employment highlighted

Wards Cove that racial dis- While Congress generally required that parities in aggregated revealed statistics plaintiff identify particular employment justified by times could be a closer practices disparate impact, that cause Con- qualified examination labor pool. gress provided also that the decision-mak- disparities Similarly, shown statistics ing process could be as a challenged whole aggregated departmental at the level may under certain Specifically, circumstances. be explained by the specific Congress provided: practices given department. of a See Wal- Mart, at-, 2555, 564 demonstrating U.S. 131 S.Ct. at With to respect that a (“[I]nformation 180 at 394 particular L.Ed.2d employment practice about causes a disparities the regional disparate and national lev- ... impact complaining el does not establish the of dis- party par- existence shall demonstrate each that stores, parities at challenged employment practice individual let alone raise ticular that company-wide policy except inference a causes disparate impact, a that if of implemented by discrimination is the complaining party discre- can demonstrate tionary decisions at the store and district to the that of court the elements a re- (Internal quotation level.” spondent’s marks omit- are decisionmaking process ted.)). not capable separation analysis, for court, relying of this merous decisions may be ana- decisionmaking process interpret equivalent to federal decisions practice. on one

lyzed as majority, The a in the ICRA. provisions 2000e-2(k)(l)(B)(i). This law 42 U.S.C. holding, dis- unrelated to its discussion requirement exception an codifies itself from federal decisions. tances em- identify particular plaintiff that a thereby ensuring that ployment practice, v. majority, relying on Hubbard dispa- liability avoid cannot employers (Iowa 1969), State, 904, 909 163 N.W.2d making it difficult simply by rate of Title interpretations suggests federal analyze the separately plaintiff for a to interpretations if those only useful VII See v. decision-making elements. Griffin the Iowa stat- the enactment of preceded (11th Carlin, Cir. 755 F.2d disagree. Hubbard was decided ute. I 1985). statutory exception balances This the Iowa century ago interpreted half could evade employers the concern (ITCA), Act not the ICRA. Tort Claims particularity need for liability against the Hubbard, our court id. at 905. Since See first demon- plaintiff requiring subsequent on feder- repeatedly has relied incapable is employer’s process strate of the Federal Tort interpretations al majority As the acknowl- separation. construe the ITCA. See Act to Claims was on edges, the burden State, 548, 569 v. 801 N.W.2d Wаlker decision-making process the State’s prove (col- 2011) (Iowa (Mansfield, J., dissenting) analysis separation for be- incapable rely federal opinions Iowa lecting as a proceeding process fore to attack enactment). cases decided after the ITCA’s Nash- whole. See Grant v. Metro. Gov’t Indeed, has cited Hubbard as our court (6th ville, Fed.Appx. Cir. support proposition “[inter- 2011). act are instruc- pretations of the federal that observation to limiting tive”—without counterpart does not have a ICRA the enactment of the amendment.14 cases decided before congressional to the 1991 State, Annear v. 419 N.W.2d here —and did not ITCA. argue Plaintiffs do not (Iowa 1988); see also Meier v. their burden to estab- argue below—that Sulhoff (McCor- (Iowa 1985) case under the ICRA 360 N.W.2d prima lish a facie mick, J., dissenting) (citing Hubbard and under Title was lower than their burden “[bjecause stating Occupational Iowa [the I therefore focus on law VII. will federal Health is based on the Safety Act] the State’s question and on the of whether model, interpreta- federal the federal employment practices capable were “not But, authority for analysis.” persuasive tions constitute separation purposes first, to our stat- respond majori- giving interpretation I to dicta in the a similar must ute”); v. Mount Pleasant Bank & by omission and Adam ty opinion that misleads (Iowa 1983) Co., silentio, 340 N.W.2d thereby unfairly sub Trust disparages, (“Because on the fed- in nu- our statute is based long-standing practice, our followed guise exception Congress amending into the ICRA An act Title VII such judicial interpretation. Ackelson v. requires See not amend the ICRA. The ICRA does Direct, L.L.C., Manley Toy specific employment 832 N.W.2d plaintiff prove 2013) (Iowa (declining reinterpret the practice disparate impact. Hy- caused the Vee, light punitive damages in legislature to allow The Iowa ICRA 453 N.W.2d damages disallowing punitive precedent provision the ICRAto add a has not amended acquiescence). to create Hy-Vee legislative Whether response in decision in or the to our policy exception in ICRA is a congressional an amendment to Title VII over such by legislature. ago. to be made twenty-three years I would not read choice

39 Act, we assume our as the legis- similarity terminology eral Tort in Claims of the lature intended it have the same mean- Moreover, statutes. have we looked to the Hubbard, ing as the federal statute. 163 ADA and regulations federal implementing N.W.2d at 911. decisions inter- Federal in developing [A]ct standards under preting the federal act therefore enti- disability ICRA for discrimination 909.”). great any tled to Id. at weight. (Citations omitted.)); claims.” Hulme v. event, court, today, our has never before Barrett, 629, (Iowa 1989) 449 631 N.W.2d interpret relied on Hubbard to the ICRA. (“Our court has that civil rights ruled The Iowa bench and bar has long under- cases brought under chapter ^[216] will be provide stood guidance federal authorities guided by federal law and federal cases.” to interpret predict- This lends ICRA. (Internal quotation omitted.)); marks Pro law, ability important to an area of the Comm’n, basco v. Iowa Rights Civil 420 particularly legislature when has long 1988) (“On 432, (Iowa N.W.2d 435 several interpretations acquiesced in our of the occasions, our courts have looked to the interpretations ICRA based on federal system federal in guidance construing the counterpart statutory federal lan- legislation. our similar civil rights em We guage. v. Manley Toy See Ackelson Di- ploy approach today because, this again rect, (Iowa L.L.C., 678, 832 688-89 N.W.2d below, demonstrated the civil rights legis 2013) (discussing acquiescence). legislative lation implementing rules involved in Remarkably, majority fails to acknowl- adopted case mirror those the fed edge many that our court decided cases (Citations omitted.)); eral level.” Iowa relying interpretations on federal of equiv- Fairgrounds State v. Sec. Iowa Civil statutory alent in the civil language rights Comm’n, Rights 293, 322 N.W.2d 296 See, Stores, acts. e.g., Casey’s Gen. Inc. v. (Iowa 1982) (“The parties assume we will (Iowa Blackford, 661 N.W.2d find federal persuasive selecting cases 2003) (“[W]e have looked corre- analytical deciding framework for dis sponding help federal statutes to establish crimination cases under Iowa civil analyze the framework claims and oth- rights assumption statute. This is war [ICRA].”); apply erwise Schlitzer v. Univ. decisions.”); prior ranted our Wilson- Clinics, Iowa Hosps. & N.W.2d Griggs, Sinclair Co. v. N.W.2d (Iowa 2002) (“The goals common (Iowa 1973) similarity “the (noting rights Federal ADA civil and our act have language” of Title and the ICRA and VII encouraged us to look the federal statu- relying on “numerous relevant federal de tory and regulatory applying standards cisions”); Local Iron No. 67 v. Workers Vivian, statute.”); our 601 N.W.2d at 873 (Iowa Hart, 1971) N.W.2d (“The ICRA was modeled after Title VII (recognizing the ICRA contains “[a]nalo- the United Act. States Civil Iowa gous language” to Title VII “is anoth traditionally courts therefore turn to fed- er manifestation of massive national eral law guidance evaluating right wrongs prevailing drive to in our ICRA.”); Paper Corp., Vincent v. Four M (1999) (“[W]e social and economic structures for more 589 N.W.2d have 59-60 century”).15 than a recognized None these cases purposes the common interpreting [F]ederal ... and ICRA as well limited consider [ADA] ICRA ignored interpreting majority nearly 15. The same has identical search-and- even longer adhering provision seizure Iowa line of cases our court’s Constitution. Short, (Iowa long-standing practice relying on federal See State v. 851 N.W.2d 2014) (Waterman, J., dissenting). decisions under the Amendment when Fourth rejected ation of federal authorities to those decid district court all three the- enactment of the Iowa statute. ed before ories based on the factual record devel- oped put at trial. To the district court’s view, if majority’s In the it does not like dispositive finding legal factual into its decided, it can how federal decisions were context, I operative statutory construe the freely disregard them. cost language. The “each phrase particular stability approach predict- new is the challenged employment practice” in 42 Short, State v. ability of our law. See (k)(l)(B)(i) U.S.C. 2000e-2 indicates that (Iowa 2014) (Waterman, N.W.2d particular employment practice is dis- J., dissenting). today, After it is at best decision-making tinct from a A process. weight litigants unclear what and district particular employment practice is consid- judges appeals or the court of should an larger ered element within the decision- give divining federal cases when how our making process. Congress’s choice to use equivalent provisions court will construe form, singular combined with the A the ICRA. This is unfortunate. more “particular” and words “each” demon- majority restrained would have deferred challenged practice strates that the must pronouncements its until a case in which individually syntax identified. “This they made a difference to outcome. if a strange plaintiff would be could bundle Sup B. Does Substantial Evidence steps a number of discrete of a multi-phase port Finding the District Court’s hiring process together, based on a com- Decision-Making the State’s Process mon characteristic.” Davis v. Cintas Capable Separation Analysis? Was (6th Cir.2013) 476, 496, Corp., 717 F.3d specifically The district court found the (holding plaintiff identify “did not a ‘partic- decision-making process capa State’s was employment practice’ ular within the ble of separation analysis. agree I meaning by pointing of Title VII to all of majority with the question this is a subjective elements in [employer’s See, Indus., e.g., fact. v. McClain Lufkin hiring system]”). Inc., (5th Cir.2008). 519 F.3d We are bound the district court’s factual plaintiffs’ I first consider re- contentions finding supported by if it is substantial garding subjective decision-making. How Schlitzer, evidence. 641 N.W.2d at 529. subjective decision-making plays into hir- argue appeal Plaintiffs there was no ing promotion depends type on the substantial evidence supporting this find Thus, job process and the used to fill it. ing proved and that their as a evidence subjective conduct “par- serve as the matter of law that the State’s decision- ticular employment practice” underlying a making process incapable separa was disparate impact claim if can tion for I disagree. prove operates uniformly that the conduct Plaintiffs assert that the State’s throughout employer’s decision-making record- keeping practices precluded separate process anal- disparate impact. to cause a For Davis, ysis decision-making process example, reject- be- the Sixth Circuit (1) subjective cause assessments pervaded plaintiffs argument ed the defen- (2) the decision-making process; subjective decision-making process incapa- dant’s effect,” “ripple assessments have a where- separation ble of when “not all of the discriminatory system’s subjective accumulates elements are the applicants through move the hiring pro- same.” Id. at 497. The court noted (3) cess; and the State did not retain ... spe- some different interview has a “[e]ach regarding applicant manag- records evaluations. cific guide, interview different

41 stages broad, ers interviews at different to managers’ subjective conduct mitted local Likewise, at-, Id. in Bennett process.” discretion. Id. 131 S.Ct. at Corp., Eighth However, v. con- Nucor Circuit 180 L.Ed.2d at 385. plaintiffs compo- where alleged cluded “this is not a case that a strong and uniform corpo- employer’s process nents of the selection rate culture led that discretion to exer- cised, F.Bd incapable separation.” subconsciously, were of against even the hir- Cir.2011). (8th pointed ing The court and advancement of Id. women. at employer’s -, de- to the fact that the “five 131 S.Ct. at 180 L.Ed.2d at variety Yet, partments used a of measures to 386. held “[respondents Court promotion, includ- identif[y] evaluate candidates for not common [did] mode of ex- ing objective experience, criteria ercising pervades like train- discretion that the entire scores, at-, ing, history, and test disciplinary company.” Id. 131 S.Ct. at 2554- and criteria such as subjective interview 180 L.Ed.2d at 393. The district court performance opinion and the the candi- observed Wal-Mart “highlights both the 817-18; supervisor.” date’s current Id. at identify need to a particular employment Grant, (“The Fed.Appx. see at practice, pertinence also of discretionary however, problem, decisionmaking is that Plaintiffs make in employment pro- cess, any no effort isolate these [decision- and interconnection with statisti- making] or to examine their indi- cal practices proof.” promotions process.”).

vidual effects on the The district court here found that “[t]he Authority good system Port is a objective Chin v. exam- State’s has both and sub- ple subjective process incapa- jective of a that was components” which are so “not con- purposes analysis. ble of ... separation prevent fused as to Plaintiffs from (2d Cir.2012). 685 F.3d 154-55 in on honing particular one case, the plaintiffs passed practice.” finding had exams This is supported placed eligibility and had example, been lists For record. the DAS screen one, promotions sergeant but had re- step that occurred at the résumé ceived at promotions. part Id. 142-43. score sheets that step were two departments, proved the decisions as some résumé second promoted whom would be from the eligible spelling grammar screens screens list based on essentially subjective part step depart- were that were two in some by commanding ments, recommendations officers and the interview sheets that score subjective super- part step depart- final decisions were three in some Id. process objective intendent. at 154-55. The were components ments entirely discretionary, was analyzed. and the final have been This separately could person decision rested with one su- a purely subjective process. was not —the perintendent. See id. Furthermore, undoubtedly while there

Wal-Mart, shortly filеd before case subjectivity this and—as the trial, There, went credibly implicit is instructive. bias demonstrated — Supreme during Court decertified a State multiple hiring nationwide decisions period, cry class of 1.5 million current and time far former relevant case is a Chin, employees alleging decision-making Wal-Mart from gender which Wal-Mart, single discrimination. process ultimately U.S. came down to a -, -, 2547, 2561, here, By S.Ct. individual’s discretion. contrast Pay promotion L.Ed.2d at State’s decisions were generally department managers. decisions at Wal-Mart were com- hands numerous separated Branch em- cess could be Executive The State of Iowa job court noted that Greenwald con- range diverse district ploys a far more employment process any of the defendants ceded the State’s categories than individually analyze to separated decision-mak- could be subjective the in which cases attacking process for and commented step served as a basis each of ing has as a whole. one determine whether or not decision-making process “that ‘could cor- working indepen- for the State include there was bias at each one of Those ” officers, officers, registered hiring process.’ Kaiser parole stages dent rections workers, nurses, power plant in-per- discussed how written résumés food service trigger implicit road- can racial troopers, and DOT son interviews engineers, state members, name a differently. crew biases State’s statistical maintenance court, “The by Killingsworth, regression noted the district utilized a expert, few. As analysis hiring pro- dissected into numer- evaluate the State’s system State can be among stages numer- from different decision-making stages using ous cess data agencies process departments. of the executive and different independent ous branch,” “inconsistency in re- summarized: and there is The district court among agencies.” the numerous Mil- sults Killingsworth capable sepa- Dr. was that, two, African step ler showed at rating stage, data for the referral had a lower statistical likeli- Americans hiring stage and the for stage, interview in getting hood of an interview some de- compared African Americans as These out- partments but not others. period years. whites over a His work objective either comes could be due to analyze the permits a fact finder to de- considerations, way subjective but either partments of the executive branch in the existence of a they suggest do not years each of those at each of those (even one) practice subjective common charting of State data al- stages. This relief. justify that would class-wide See compare a fact finder to the various lows Wal-Mart, at-, 564 U.S. 181 S.Ct. at departments important and draw conclu- 2555-56, (noting 180 L.Ed.2d at 393 depart- sions as to how the individual exercised different discretion when compare ments to each other ways is not in itself managers different nоt to stages. various While he elected employment practice). analysis application begin his stage, permit the data available would affirmatively testified the No witness it could be used to track this. And process incapable separation was for stage from that first applicant flow analysis. contrary, To the State’s ex- applicant specif- for the Miller, one pert, “emphatically” testified that job any given depart- ic opening hiring system capable the State’s including progress of each separation analysis. ap- Plaintiffs on ment— applicant through stages the various peal challenge admissibility do not examining particular screening-de- testimony testimony. Miller’s His alone vices used. supporting constitutes substantial evidence Furthermore, finding. the district court’s Further, “could limit his Killingsworth Miller actually separate process did or incumbent applicants models new into of his steps purposes the three employees, pay, perform- State initial analysis. However, he did not ance evaluations.” any findings particular of his to a Additionally, plaintiffs’ experts own tes- correlate decision-making pro- screening tified that the device. State’s performed, separate Miller ... Significantly, subjective career intersects a decision- But, analyses by department on the making process”). statistical here fact, steps hiring process. three have not this is proven such a case. below, relies very point regression as I discuss the NAACP analysis to al analysis pursuing an alternative low of particular isolation elements and Furthermore, Kill- argument reversal. determine whether there is a ef “ripple above, ingsworth, quoted with fect.” agreed sepa- the three steps Miller that could Finally, substantial evidence supports purposes

rated for Additional- the district court’s finding that the plain- separabili- ly, pages findings in four on tiffs failed to show the condition the ty, repeatedly the district court referred to paper separate files precluded analysis of testimony stages expert that indicated the specific employment practices within the could process separated. of the be process. hiring State’s nev- Killingsworth This does not foreclose the er possibility hiring looked at the Significantly, files. separation, notes, court majority as the district as the the district court further example, For the revealed hiring found. record found “the files permit themselves a employment practices potential- other with focused view the different screening- ly discriminatory referral, effects such as résumé devices and practices interview sepa- screens could have been and or hiring applicants isolated any given job event, But, rately analyzed. any in' the between departments.” the Plaintiffs supports' the finding record district court’s make much the missing from documents plaintiffs files, did not bur- eighty-six meet their percent but files attempt den. Plaintiffs did not еven questions, included interview eighty-one notes, challenge employment practice percent actual seventy- had interview and argued simply percent provided and that the “total result” three an interview scor- (to Killingsworth’s phrase) was ing use dis- Half of matrix. the files had reference criminatory. Eighty-four percent checks. of the files also contained an application, individual’s response to plaintiffs’ In effect” “ripple résumé, and cover letter. majority As the argument, district court found “the commented, recognizes, Greenwald “The practice compounds fact that one errant of the State gold files are a mine problem process at a later stage of the analyzed.” that is no hasn’t been There prevent of either investigation does evidence that took even one or later separate stage prac the earlier objective of the em- standards the State agree. Though tice.” I of a dis use ployed and tried determine whether criminatory may criterion at one im stage disparate using had a the available pact throughout decision- applicants records. process, making “ripple such a effect” preclude separate argue does not sizes sample Plaintiffs cases, subjective objective get reliability some crite would and smaller statistical prevent be so may ria intertwined as to would decline as one tries to analyze See separation. practice only McClain v. In effect of a that was employed Lufkin (E.D.Tex. dus., Inc., 187 F.R.D. certain areas certain times. This 1999) correct, (finding an employer’s insep may actions but does not excuse analysis disparate arable for when try. permit failure to statute does not “[t]he impacts begin day on the hired and aggregate one is courts to collection of different potentially magnified one’s hiring practices each time across different times just applicants to increase the size of better than white at certain

departments worse, stages; they in others fared even sample. suggests much worse. This that the dif- support cite in only case screening processes ferent used that a lack of records can argument their departments may have had different im- prevent separate analysis is the district on pacts applicant success. As the district Notably, opinion court Chin. Second noted, these outcomes “[vjarying be- appeal relied on a different ra Circuit departments stages tween the i.e., the district tionale from court — process scrutiny.” localized invite[ ] basically subjec process entirely example, For based on the record in this rested one tive and the final decision case, I concerns have about the various Chin, at 154-55. person. Step 685 F.3d screening résumé devices used State looking with the ping back Chin at the level. It departments step-two opinions, benefit of both the laсk of rec certainly possible inappropriate subjectivity process ords and screening devices have been used two sides of the same coin: appear to be departments some of the in which Miller why No one documented someone received statistically found a significant disparity there promotion nothing a because to step between blacks and whites at two. document. Port Police Asian Auth. Jade But, just possibility it is and not an Auth., Soc. & N.J. Inc. v. Port of N.Y. aspect plaintiffs of the case that the chose (S.D.N.Y. 456, 460-61, F.Supp.2d 464-65 pursue. to 2010) (finding decision-making process separated could not be “both because rec Here, the district court observed that every do not for be step ords exist and hiring permit “the files themselves a fo- step cause the causal role of each is called cused view of the different screening-de- exist”). by into the records that doubt do referral, practices vices and interview or Here, contrast, by it is undeniable that the hiring applicants any job given be- incomplete, equally records were but irre tween the departments.” example, For analyze futable that no one who tried to out, pointed the court DAS system- has a the records was unable to do so. As the manual, applicant wide screening found, district court analysis could have been performed based State’s data —its recordkeeping— [t]he on the manner in which DAS instructs not perfect, managers while was sufficient for both on the use of the manual. Killingsworth Dr. Dr. and Miller to con- The district court went on to comment analyses. presence duct their The any that “one can focus on number of of their opinions record models and employment discrete decisions made as in- dispels argument the State’s dividual, separable, particular identifiable recordkeeping precludes is such that it employment practices” gave and then two anything “systemic but a employment examples: more practice.” example separability One I supports conclude substantial evidence is the process “second résumé screen” findings regarding district court’s by that had been utilized depart- some State’s keeping. record particular employment ments. It was a importance evaluated,

I reiterate the of separately practice that was determined analyzing the different processes by inappropriate, used to be and curtailed at the departments. the various In some depart- suggestion of DAS. Similar refinement ments, applicants hiring process by African-American fared focusing on the gram- inappropriate “spelling use also do not know which representative example mar is another screening” plaintiffs any applied jobs —if — having particular DAS em- And, addressed departments. those the remedies ployment practice. The record reflects sought by plaintiffs would apply not only ability on these focus only dеpartments to those but to the State particular practices but employment as a whole. separate re- agencies when and which focus, Instead of narrowing their plain- sponded suggested changes brought tiffs alleging class action a com- DAS. pattern mon discrimination the en- why has con- foregoing shown I am tire government. state executive branch right

fident the court reached the conclu- brought case, Having large such a it was went methodically sion. district toup then to undertake the record, through appropriately focused considerable work required prove it. testimony on the statistical experts law, Under the prevailing this included side, employ- each and identified various analysis specific practices practices sepa- ment that could have been impact. their Plaintiffs did not meet their rately analyzed, including steps the three burden. practice an- (separately Miller) Second, I alyzed by prac- downplay do not specific more what steps. within those case shown. according Miller, tices has Even appears African Americans on the whole reasons, For all these I sub- conclude disadvantaged were getting job inter- supports stantial evidence the district agencies, views from some including some finding court’s failed large departments department like the employment practices show State’s department human services and the capable not separation purposes conclusion, transportation. This from a I with close three observations. expert, disturbing defense is although in- First, NAACP, significant it is court, conclusive. The in my district view brief, in a well-argued amicus relies on correctly, questioned why “given all this plaintiffs some the same data that dis- State, data held it did not on a Thus, miss as inadequate. the NAACP it, regular basis review did as these ex- findings asserts that Miller’s there show perts, eye an measuring toward im- an step eight adverse two in pact.” departments employed approximately fifty-eight percent the State workforce. Third, it emphasis bears that the defeat basis, On that asks us to reverse the person of this class action does not bar a district court. who believes he or she was victim of view, In my the NAACP’s brief raises discrimination from bringing individual questions against serious as to State his or whether the lawsuit on her own the State committed unlawful discrimination. The for new acts of discrimination. What is problem argument with this is not prove, that it clear here is that failed to they the case the elected pursue. ultimately try because did not instance, For prac- we do know what prove, engaged that the State of Iowa eight depart- tices were followed those specific practices that had dis- ments during step criminatory two. This like a against seems effects African-Ameri- relatively straightforward applicants inquiry job can and that would allow for could have been pursued discovery. We class-wide relief. reasons, agree I foregoing

For the be affirmed. judgment must

district court’s - ZAGER, JJ., join MANSFIELD n special concurrence. L.L.C., GROUP,

GREENBRIAR

Plaintiff-Appellant,

v.

Timothy HAINES, Defendant-Appellee, ‍‌‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​​​‌​​​‌‌‌‌‌‍Inc., Properties, and Indian Har-

Elkco Company subrogee Insurance

bor Inc., Third-Party Properties, Elkco

Defendants-Appellants.

No. 13-0569. Appeals of Iowa.

Court

Jan. 2014. Aug.

As Amended

Case Details

Case Name: Linda Pippen, on Behalf of Themselves and All Others Similarly Situated v. State

Court Name: Supreme Court of Iowa

Date Published: Jul 18, 2014

Citation: 854 N.W.2d 1

Docket Number: 12–0913

Court Abbreviation: Iowa