*1 binding We the settlement was found HASKENHOFF, Appellee, Tina notwithstanding Iowa enforceable provi- other Code section 164.27 and Code observed, chapter
sions. “Because We first SOLUTIONS, HOMELAND ENERGY regulation 164 is a health within the state’s LLC, Appellant. police con- power, liberally is to be No. 15-0574 Id. strued.” 302. then held that We 164.27, section “if interpreted foster Supreme of Iowa. Court public objectives of chapter health 23, 2017 Filed June permits the settlement entered into in this view, case.” In our the section
only prohibited payments current cash $2500, not
once the fund fell below balance
binding agreements payments to make Id. at 304-05. years.
future regulatory
Courts must sensitive agencies should
overreach. Government
not issue a quarantine order affects legitimate
landowner’s livelihood without doing
medical scientific so. basis
Although.the parties strongly disagree as here,
to the need for the measures ordered conflicting pre- evidence scientific commission, "upheld
sented which order,
DNR’s order. district court’s opinion, today’s solely
like is based legal authority lack of due alleged
DNR’s reading I’m not a statute. crabbed science,
qualified to evaluate the but on the colleagues. I disagree my
law reasons, foregoing
For the I re- judicial
verse court’s review district decision of the
order and reinstate the
Natural Commission. Resource
Waterman, J., joins concurrence in
part part. and dissent *8 Stephenson Lisa A. J. Visser
Kevin PLC, Bergman Moyer Simmons Perrine appellant. Rapids, Cedar Con- Roxanne Barton Conlin Roxanne Associates, P.C., Moines, Des lin & Paige Brooke Timmer and Fiedler of Fied- Timmer, Johnston, P.L.L.C., ap- ler & pellee.
WATERMAN, Justice. decide appeal, we must whether correctly court em- district denied following trial ployer’s motion for new. *9 on plaintiff million for jury verdict $1.4 Rights Act claims under Iowa Civil (ICRA) employment for discrimination believes provided employee on who “[a]n sexual harassment direct based subject he or she has been harassment supervisor coemployees. employer The and prohibited by policy report this should argues by submit- court the district erred or their immediately supervisor incident negligence ting a direct claim instead Management of the Team.” The member for liability supervisor harass- vicarious any complaint of sexual policy stated jury on the ment and misinstructed any investigated harassment would be and proof, elements of causation standard may bring complaint employee “without retaliation, for adverse definition reprisal.” fear of action, and constructive dis- argues charge. employer The also a new repeatedly was harassed Haskenhoff misconduct, for required attorney trial is Howes, Kevin supervisor, her immediate expert testimony le- allowing errors in on operations manager. Howes re- HES’s standards, damages, and gal excessive peatedly made comments inappropriate million for future emo- which included $1 For presence. example, Haskenhoffs Finally, employer tional ar- distress. breasts Howes talked about Haskenhoffs by awarding gues the court erred district occasions, referring on at least three attorney $846,364, fees of the full excessive them as “them or twins.” puppies” “the amount claimed. body Haskenhoffs Howes discussed employees speculated other attire with below, For we explained the reasons out it would like to loud about what may bring a direct-lia workers hold to other sex with her. He insinuated bility claim the ICRA negligence Tina employees they get male could supervisor against- into He commented the attractive- bed. harassment, prove but the must job ap- ness or unattractiveness of female have known knew should spoke at plicants employees. He work and failed to take harassment occasions, multiple he strippers. about On action to prompt appropriate remedial objects body motions in engaged used prejudicial it. errors conclude that end We front of Haskenhoff to be- simulate sexual require in four a new jury instructions havior. in the trial. We find no abuse discretion expert testimony. coemployees engaged We also admission Haskenhoffs remaining inappropriate presence. issues need not decide the conduct her displayed One saver on his com- appeal. raised in screen puter young tongues. girls touching of two Background I. Facts and Proceed- photographed Another Haskenhoffs cleav-
ings. age company outing at a and showed photo to others. Haskenhoff received following The could find the facts pornographic yet an- unwanted video developed based on at trial. the record atmosphere employee. other Hasken- Solutions, (HES) Energy Homeland LLC hoff experienced plant HES operated plant forty-five an ethanol unseemly unprofessional. Lawler, employees February On Iowa.' Tina as a Haskenhoff told hired Haskenhoff November HES early to leave manager plant. day, lab at the That she Howes she needed work provided copy mammogram. Howes with a the HES She remembered handbook, “[Wjell, know, if sat pol responding, you you which included its icy parking you probably out in lot policy sexual harassment. The stat: could prohibited money.” interpreted ed sexual some She harassment was and make *10 mean, my put I to I car and Kevin had said to that reported “[I]f sat me uncomfortable, pay sign up guys grope making would to me.” me I and said he differed; And I I recalled did. think broke down at Howes’s recollection he that I point, and I go get he she said don’t want him to told Haskenhoff “could around this, you I fired over said copying the corner use machine know. to her knows, I’m now that sure he now that money.” and save herself some He it stated pointed him, surely has out to been he that he meant could “[u]se Haskenhoff stop. Anybody stop. machine, will copying photocopy make a her [of Q. Is that going you versus the doctor.” Howes what breast] believed would happen? A. acknowledged inap- that his comment was Yes. inci- reported the
propriate. you Haskenhoff Q. you Did tell ’em wanted plant manager, dent to the Kuhlers. Chad I dropped? A. said if it going were report Kuhlers Haskenhoffs point fired, forwarded getting come to the Kevin resources, Frein. head human Sarah I go—I want to didn’t didn’t want to day, officially go The next Howes came to Haskenhoffs further at all because I did spoke apologized office and with her. He him want fired over that. expressed
for his concern comment you Q. Did want them to do some- that him Kuhlers wanted fired because it? A. thing about Yes.
it. Haskenhoff said Howes her feel made request, At Haskenhoffs Frein took no “very Shortly inter- intimidated.” after her disciplinary against further action Howes Howes, Wendland, action with Walter time. that (CEO) HES, chief executive offiсer Wendland later removed Kuhlers as to come to office. asked Haskenhoff his plant manager promoted Howes to meeting, recalled at this She months, position. that For the next nine of, like, [Wendland] said—he kind complaints Haskenhoff made no to man- well, here, going what’s and he said about agement performance Howes. Her you really know wants [Kuhlers] Chad January review in that noted she met this, me to fire over I said I Kevin requirements in all exceeded areas. never to fire him. And then asked Chad However, the review noted that Hask- also well, say, I Walt went come [on]. enhoff had areas to on and work refer- thought family. we like a You don’t were dispute which enced an email Hasken- your family.
want to do hoff argumentative had become procedures. May, over lab subordinate December Frein called Haskenhoff On seeking began position she at John complaint. into her office to discuss her Deere. Grober, chief financial officer Jeff
(CFO), was also Frein’s office. present August On Haskenhoff walked At Frein’s indicate meeting, *11 inappropriate conduct] [of and concerns Haskenhoff left work tomorrow.”
be back get them writing, so we can addressed morning. that at 11:15 responded by appropriately.” Haskenhoff ex- email to Howes sent an Haskenhoff day, listing multi- to Frein the same email comment. disgust at his pressing her and inappropriate conduct ple incidents not meant to that he had replied Howes not all en- long the list was “but stating her to meet the next asked offend her and only compassing.” said the Haskenhoff the issue. Later office to discuss day his brought up she issues was that reason to an email sent night, that Howes up her Howes had threatened write for CFO, Wendland; then David CEO; immediately for- Frein insubordination. manager, Finke; commodities and the Finke, respond- email who warded email, In the Howes said Wubbena. Steve ed, anything think can “I don’t we discount for Haskenhoff discipline he wanted may of it be is mentioned below. that Some in front of subor- him calling expletives bit, just a but we cannot embellished still lab leaving for a employees,, dinate grain a stated take with Finke salt.” per- mess, leaving without and for work step first to look at was that pointed day. for the He out Hask- mission handbook, step the second only person sched- enhoff had been lab harassment, training for plant-wide sexual uled, completed, samples lab had been devising plan step and the third trial, they in the middle of a lab and were , the issue with Howes.. address leaving. off” a conference call she “blew - expressed also frustration at Hask- Howes prepared Howes a written day, The next attitude, frequent her smoke enhoffs leaving warning for conduct Haskenhoffs breaks, arrange, cover- and her failure early. provided He Frein also with work Finke age days for her on her shifts off. Au- during the statement of what occurred responded, a lot “We claim she does meeting. gust Wubbena forwarded things any of this poorly, do we later, dayA statement to Frein as well. documented and file?” he recounting Finke Frein emailed to be “OVERLY” told Howes he needed day, next met The Haskenhoff “ALL” of professional in his work-related office. Howes and Howes’s Wubbena Finke’s email moving forward. endeavors They day from the discussed conduct meantime, Frein, “In the I want told also before, apologized. Howes Howes also forming game you thinking to be about to refer used the term “insubordination” investigation for Tina’s claims.” plan [of] to his comment. Haskenhoffs reaction counsel, help of outside Frein enlisted replied using such Haskenhoff terms Gilliam, day. Frein asked Gil- James and “hostile en- “sexual harassment” work steps, questions about HES’s next liam to refer to conduct. vironment” Howes’s Haskenhoff, including whether could about other conduct then told Howes She leaving early disciplined for work without office, including coemployee in the about a against permission “plotting” having inappropriate saver and screen Howes. in the being nicknames used inappropriate responded meet- office. after their Howes investigated com- Haskenhoffs HES directing to cease
ing by employees, including by interviewing plaint employees, using nicknames remove During Haskenhoff and Howes. Hasken- screen saver. August hoffs Wendland interview week, present Frein following emailed and were reviewed Frein As to examples, incidents. several asking “facts, list Haskenhoffs Haskenhoff incidents, ninety-day ing performance improve- Hask- Wendland commented plan. did violate the the conduct ment enhoff policy off company’s and crossed them the *12 August pre- On Wendland and Finke n presence.
list in her sented Howes with a written staff-counsel- investigation ongoing, While form, ing which determined that Howes began drafting staff-counseling Howes unprofessional unaccepta- had “made and forms, perceived for write-ups, what he in the'workplace.” comments It stated ble leaving Haskenhoffs insubordination expected that HES Howes’s conduct early August plant 8. Howes indi- not, that if and improve it did would be he cated he wanted to terminate Haskenhoff action, subject to disciplinary including employees gather contacted other later, possible discharge. days Two Wend- of her more evidence insubordination. land and Finke met with Haskenhoff to repeatedly Howes also reminded other em- investigation. discuss the results professional to keep work and in- ployees They her that assured she be would n mandatory upcoming formed them of against retaliated and directed her to re- training., Gilliam and harassment Frein port any perceived to Finke or retaliation recommended that not be Haskenhoff dis- Then, Wendland. while Wendland ciplined tim- her “the for conduct because present, Finke still were Howes entered ing inappropriate.” Finke told Howes presented the room and Haskenhoff with a that he feel email did comfortable performance draft ad- improvement plan Haskenhoff, terminating stating, August dressing her conduct on 8. Hasken- honestly get- I feel I that Walt and are disagreed allegations hoff many with very ting to the bottom serious plan. The men her plan assured we it in doing situation be her redrafted reflect concerns. The me, goal manner. the end proper For day, reported next to HES for Haskenhoff proper an informed make conclusion a.m., work. At around she entered per policies Homeland’s and under the resigned, calling Finke’s office and guidance qualified legal counsel. day’s previous “bullshit.”1 events Six Nevertheless, drafted two Howes final later, began working weeks Haskenhoff staff-counseling forms regarding Hasken- John Deere. hoff, other entitled “#3” and the “#4.” one filed com- Haskenhoff an administrative forms to He emailed these Wendland and eight plaint later. months IGRA investiga- Form Finke. #3 discussed the release, receiving After an administrative tion and listed 'the “numerous harass- Haskenhoff filed a action Chicka- civil behavior claims” as ment/inappropriate Court, alleging saw County District sexual for disciplining one the reasons Hasken- harassment and retaliation hoff. Form #4 not mention did the investi- ICRA. trial commenced on Octo- The jury gation con- Haskenhoffs focused 1, 2014, ber and spanned three weeks. August leaving duct on work without limine, multiple . permission. he liked be- HES motions Howes said #4 filed being granted by were the dis- cause “it does not come across as several which prohibited trict An in limine Both forms recom- court. retaliatory nature.” order any making ref- giving Haskenhoffs counsel Haskenhoff written warn- mended notice, any enough posted days giving of Kevin's 1. Haskenhoff on social media two out had friend, vulgarity juvenile you bullshit behavior and later to wanted let "[J]ust your quit yesterday ... [I] LOL[.]” Homeland with- favoritism lead know followed objec- assault,” court “sexual or simi- The sustained defense “rape,” erence contrast, tions, percent. By or sixty-one inflammatory expressly larly terms and objected fifty-nine any counsel Haskenhoff making analogy between prohibited (fif- times, thirty of which were sustained De- complaint. rape and harassment counsel, percent). ty-one ruling, Haskenhoffs spite during her CEO examination HES’s motion The district court denied HES’s trial, question: asked testimony in limine to ex- exclude Dr, mean, you I it would Q. think pro- pert Fitzgerald, don’t witness Louise instance, if someone analogous, Illi- University fessor emeritus *13 of rape someone and then taught had accused Urbana-Champaign, nois who rape person they of accused Psychology Gender and Women’s and say to in and that’s defamation testimony able walk in- argued her Studies. HES saying rapist? for I’m a Dr. legal inadmissible conclusions. cluded objec- Fitzgerald over testified defense Objection; argu- this is MR. VISSER: about the of care tions standard ment, improper, it’s and violates policies pro- for and human resources field of orders. pretrial terms regarding sexual and cedures harassment argu- THE as to COURT: Sustained alleged to that stan- HES’s failure meet mentative. typi- dard. She also testified about victims’ limine Another Hasken- order forbade and cal to sexual reactions harassment testimony offering hoffs counsel from displayed stated Haskenhoff those reac- referring character to about or Howes’s argues jury tions. HES instructions chauvinistic, immature, “juvenile, him as shaped Fitzgerald’s to reflect were Dr. vindictive, grudge, holding capable of or evidence, testimony. of At the close retaliation,” pro- as such evidence was record on instructions. parties made a of bative truthfulness. Counsel for Hasken- Negligence A. Direct Vicari- Versus the following ques- nevertheless asked hoff Liability Supervisor ous Harass- jury: tions front of the on requested ment. HES an instruction Dutka, Q. employee Matthew of [To applied harassment different sexual on ob- knowing HES] based And liability on the depending standards [Howes], serving per- the kind he position company. harasser’s within the likely to people son to use coworker, HES’s by For harassment get what he wants? proposed it would be stated instruction if it should liable “knew or' have known Heideman, Q. employee of [To Wade or hostile conduct failed the abusive your about HES] Based observations prompt take and corrective action end Kevin, guy who would he be kind of If the harasser was harassment.” grudge? would hold supervisor, proposed did HES’s instruction require HES plaintiff prove Hansen, Q. [To Sherri or harass- knew should have known your working time HES] From with Mr. ment, prove, but as allowed HES to Howes, think you do he would have done defense, affirmative that it rea- “exercised everything power get in his rid of prevent correct sonable care Tina? promptly any sexually harassing behavior” objected “unreasonably failed Counsel for HES over times Haskenhoff trial, during according preventative to take advantage any Haskenhoff. opportunities provided corrective the occurrence of one or sexually more Energy or to harassing Homeland Solutions avoid incidents. commonly harm This is known otherwise.” Solutions, Energy 7.Homeland Faragher-Ellerth em defense to acted negligently creating L.L.C. ployer liability. Faragher City See continuing a work hostile environment. Raton, 775, 807,
Boca U.S. 118 S.Ct. you plaintiff, If find that Tina (1998); L.Ed.2d Bur Haskenhoff, prove any has failed Indus., Ellerth, lington Inc. v. 524 U.S. propositions, plaintiff these is not L.Ed.2d damages entitled to on her claim sex- (1998). ual harassment. If has proved all of propositions, these argued a single Haskenhoff marshal- plaintiff is to damages entitled in some ing negligence instruction theo- direct amount. ry encompassed harassment a su-
pervisor or The district court coworker. objected this marshaling HES in- agreed nearly gave an instruction struction, Foods, citing Inc. v. Farmland *14 proposed identical to instruc- Haskenhoffs Commission, on Dubuque Rights Human marshaling tion. court’s The instruction liability ap- sexual harassment and stated, plicability Faragher-Ellerth de- (Iowa 2003). NO. 14
INSTRUCTION fense. objected that negligence HES also COUNT I-SEXUAL HARASSMENT defined, incorrectly had standard been CLAIM stating, “Again, to the extent there is that damages In order to her recover harassment, co-worker standard—the harassment, plaintiff, claim sexual element is knew or should have known and Haskenhoff, prove all of the Tina must take appropriate prompt failed to re- following elements of her claim: proof was action”—an element medial Haskenhoff, plaintiff, The Tina 1. from the missing court’s instruction. subjected offensivе conduct B. Retaliation Instruction—Causa- employees, agents, or officers of Home- objected tion. HES to the court’s marshal- Solutions, Energy land L.L.C. em- while II, ing instruction on Count retaliation. ployed at its plant. ethanol requested an instruction re- HES 2. conduct unwelcome. Such prove quired protected Haskenhoff to a played Tina sex 3. Haskenhoffs activity “significant was a factor” motivat- part in such conduct. ing In con- employment action. adverse instruction, trast, proposed Haskenhoffs se- sufficiently
4. This conduct was part large which the district court pervasive per- vere or a reasonable adopted, provided protected activ- position son in Tina Haskenhoffs only ity “played part” a de- need work find her environment was hostile ac- decision to take the fendant’s adverse or offensive. marshaling tion. The instruction court’s 5. At the time this conduct occurred stated, conduct, Tina as result of this NO. 26 INSTRUCTION envi- Haskenhoff believed that work was hostile or abusive. ronment COUNT II-RETALIATION CLAIM Solutions, damages her Energy 6. In order to recover Homeland retaliation, L.L.C., plaintiff, or Tina knew should have claim known Haskenhoff, an all of actions such as termination prove must the follow- ment promote, any ac- employee, failure claim: ing elements her discourage tion a reasonable that would Haskenhoff, en- plaintiff, 1. The Tina complaint employee making a by complain- protected activity gaged per- Giving harassment. ing sexual harassment. about negative improvement plan formance defendant, Energy 2. The Homeland review not em- employment “adverse Solutions, L.L.C., took adverse action ployment they action” are later unless Tina Haskenhoff. against employee’s used as a basis alter activity protected played The terms or conditions Solutions, Energy part Homeland way. Both action its detrimental to take the adverse decision L.L.C.’s context must be examined. action. give The HES’s district court declined elaborated, No. Instruction gave proposed instruction and instead NO. INSTRUCTION instruction, Haskenhoffs listed which FACTOR-DEFINED examples of ac- more adverse activities complaints plaintiff’s harassment tion: those part in her treatment if played NO. 30 INSTRUCTION factor in defen- complaints were a ADVERSE ACTION-DEFINED her. employment actions toward dant’s any action” action “Adverse means However, complaints her harassment consequences which has material only reason need have been might employee. anything It dis- the defendant’s actions. *15 making person from suade reasonable instructions, stating objected to these HES or allegation an discrimi- supporting claim, as that the elements a retaliation nation harassment. or decisions, provide “all forth our set to, It but is not such limited includes is satisfied ... causal connection employment actions as constructive dis- was a showing protected activity that the repri- or charge, reprimands threats motivating factor the adverse significant mands, change in false opportunities, City HES employment action.” cited complaints, being or investi- accusations Rights Hampton Commis- v. Iowa Civil gated, being placed performance aon sion, (Iowa 1996), and improvement plan, placed pro- on being (Iowa Barrett, Hulme 480 N.W.2d bation, adversely or other actions which position affect or undermine the It employee. also includes an objected Adverse HES also Action. C. defining seeking negative out em-
to feedback an the court’s instruction “adverse condoning encouraging or oth- requested ployee, an or HES employment action.” complain er to You employees an em- about her. defined adverse instruction that judge whether action is suffi- should an ployment action as point ciently adverse view detrimentally action that an affects the po- person plaintiffs in the reasonable terms, conditions, privileges or of em- sition. working ployment. Changes in duties stating sig- objected, para- no the second materially that cause HES
conditions graph “misleading incomplete disadvantage employee to the nificant was and It not actions. statement of the law” because included adverse includes, to, reprimands other never employ- not limited matters found but is ployee obligation action. The court to to constitute adverse has be reason- able, objection. overruled not assume the worst and not jump conclusions; to will not conditions be Discharge. D. ob- Constructive HES unless the em- considered intolerable court’s on con- jected instruction ployer given been reasonable has chance discharge, adopted which structive was , problem.” resolve proposed in- verbatim from Haskenhoffs stated, struction E. Ruling. Following The Court’s ar- NO. 33 INSTRUCTION gument instructions, the jury each of CONSTRUCTIVE DISCHARGE-EX- provided, the court “Court will overrule all PLAINED objections exceptions to' the constructively An employee dis- they’re instructions. appro- Court believes charged if employer deliberately priate on the factual record based and the working makes her conditions intoler- law as court it.” The pro- views case employee reasonably so that able ceeded verdict. quit. feels The environ- forced work literally ment need be unbearable On returned October a ver- The em- intolerable under law. dict for on both-counts Haskenhoff ployer really the employ- need not want $1,400,- damages awarded the amount quit. ee to It sufficient that the em- $300,000 000—4100,000in backpay, past ployee’s reasonably was resignation a- distress, and'$1,000,000 emotional future '' n ' consequence working foreseeable emotional distress. or permitted by conditions created grounds for a trial on HES moved new employer. (1) of. forth errors set instructional , that she employee must show above, (2) evidentiary rulings erroneous subjected to sexual harassment retali- allowing testify Fitzgerald Dr. ation her there made believe [that] conclusions, (3) legal by Hask- misconduct no fair chance for Home- treatment counsel, (4) enhoffs excessive dam- land. ages. requesting a motion Haskenhoff filed An stay does need *16 $846,364 attorney expenses of fees and and as if employee reasonably she be- of, $240,000. equitable frontpay relief possibility lieves there is no the em- ployer enough fairly. will her It treat court The denied HES’s motion district if no within has recourse found, Specifically, for the court new trial. or employer’s organization reason- thoroughly “Jury instructions were briefed ably no for believes there is chance fair by length counsel and discussed at working treatment. The intolerable con- on court both and off the record.” may by ditions either the ac- be created court all of nearly also noted that HES’s or employer. inaction tion evidentiary errors based on asserted were objected HES instruction was upon by issues the court ruled already “incomplete misleading and statement during summary motion for judg HES’s subjective injected the law” it a because ment motions The court limine. objected specifically also standard. HES attorneys’ merely found to be conduct language product representation failure a of zealous court’s include suggested damages in its con- defendant excessive. The court were claim, discharge including attorney but in the frontpay structive awarded fees requested judg a statement that “the full limited em- amount and entered for a ‘the court exercised discretion [its] for Haskenhoff total ment $2,486,364. grounds clearly for reasons untenable ” clearly or to Id. an extent unreasonable.’ timely appeal a notice of HES filed (alteration original) (quoting State v. in its for on the issues raised motion based (Iowa 1997)). 1, Maghee, N.W.2d attorney trial and fees. We new excessive they are when un- Grounds untenable appeal. retained supported by substantial evidence based II. Standard Review. application on an of the law. Id. erroneous alleged errors “We review
jury instructions for correction errors Analysis. III. Rose, Inc., Raining DeBoom v. law.” question The first we must decide (Iowa 2009) (quoting Boyle N.W.2d Alum-Line, Haskenhoff could recover from Inc., whether 710 N.W.2d 2006)). (Iowa theory negligence dis HES on a Similarly, we review the direct give requested a trict court’s refusal supervisor, harassment her Howes. jury instruction for correction errors supervisor-harassment HES contends Int’l, Inc., Alcala v. law. Marriott liability theory requires action vicarious (Iowa 2016). “It is error N.W.2d instruction, and an affirmative-defense give a requested court refuse action only while a coworker-harassment ‘correctly instruction where it states direct-liability brought neg can be under a case, law, application has to the is not (direct negligence) theory. ligence Hasken- ” De in the stated elsewhere instructions.’ hoff plaintiff may contends a sue em Boom, (quoting Vaughan 5at 772 N.W.2d theory for ployer negligence a direct Must, Inc., (Iowa N.W.2d supervisor and harassment. both coworker 1996)). Instructional “does not merit error employers We can be held liable for hold prejudice.” unless results Id. reversal supervisor ICRA harassment under the v. Enter. Rent-A-Car Mid (quoting Wells However, negligence theory. direct (Iowa 2004)). west, Prej N.W.2d prove must failed instructions ma udicial error results when prompt appropriate take remedial ac terially misstate or have the law misled harassment, fighting tion fac to end jury. Jury instructions must be consid Id. tual trial. the district issue Because entirety” assessing “in their when ered marshaling court’s instruction omitted that Anderson prejudice. (quoting v. Web element, required. a new trial is Dist., 620 City Cmty. ster Sch. (Iowa 2000)). preju “We assume remaining We three next address the affirmatively unless the estab dice record instructional errors turn. We conclude *17 prejudice.” no Rivera lishes there was jury the on the was misinstructed causa- Ctr., 865 N.W.2d Res. Woodward retaliation, tion for on the defini- element 2015). (Iowa action, on employment tion of adverse and discharge. prejudicial constructive These trial a court’s deci “We review a new require errors also tri- instructional expert testimony or sion to admit exclude likely Finally, al. because issue is the for an abuse discretion.” Ranes v. remand, the recur on we address admissi- Labs., Inc., N.W.2d Adams bility testimony Fitzgerald’s of Dr. and 2010). (Iowa court rul We reverse district not conclude the district court did abuse ings admissibility expert opinion on the by allowing testimony. its testimony “only the shows discretion her record when permeated A. the Allow ‘discriminatory Does ICRA a intimi- Bring dation, ridicule, Negligence Plaintiff a Direct ... ‘sufficiently insult’ Against Employer Super pervasive to for severe or alter Claim conditions employment victim’s create an parties agree visor Harassment? The ” working abusive environment.’ Farmland plaintiff may employer a sue under a (alterations Foods, 672 at N.W.2d theory vicarious for liability supervisor original) (quoting Sys., Harris v. may bring negli harassment and a direct Forklift Inc., 17, 21, 367, 370, 510 U.S. 114 S.Ct. gence against employer claim for co (1993)). 126 L.Ed.2d When harassment worker The fighting harassment. issue is by is perpetrated nonsupervisory em- theory negligence whether the direct also ployee, employer will be liable if may supervisor be used for harassment. proves plaintiff employer “knew or supervisors employees Because should have known the harassment and recovery the caselaw has limited proper failed to take action.” remedial Id. liability, we a plaintiff vicarious conclude (quoting at Stuart v. Gen. Motors can employer supervisor elect to sue an for 2000)). Corp., 217 F.3d theory. harassment under either However, perpetrated when harassment begin with the text We employee, an supervisory 216.6(1) (2011) statute. Iowa section Code subject may liability. vicarious working forbids of a hostile creation defending vicarious liabili- environment, stating, ty may Faragher-Ellerth claim assert the discriminatory It shall or be an unfair affirmative defense practice any: for (1) by showing it: “exercised reasonable hire, accept, a. refuse to Person to prevent promptly care and correct classify, or register, employ- refer for behavior,” (2) any harassing ... ment, discharge any employee, or to plaintiff employee “that unreason- employment otherwise discriminate ably advantage preven- take failed against any or applicаnt opportunities provided tive or corrective any employee of the ... ... because sex employer or to harm avoid other- or applicant employee, such unless wise.” upon based the nature of the occupation. Faragher, n.2 (quoting Id. at U.S. To establish a hostile-work-environment 807, 118 2293). S.Ct. at ICRA, claim under the argues HES should have (1) must show: or he she liability, in been instructed vicarious (2) belongs protected group; to a he defense, cluding Faragher-Ellerth be subjected she was harass- unwelcome liability replaced negli cause vicarious ment; (3) the harassment was based gence supervisor standard harassment. (4) characteristic; protected argues vicarious liability Haskenhoff term, condition, harassment affected rather replace, sup standard did but privilege employment. plemented, negligence the direct standard. Boyle, (quoting Farm Because ICRA hostile-work-environ ment, Foods, land Harass modeled after its Title 672 N.W.2d claim VII *18 term, condition, ins privilege counterpart, ment or we federal law affects a consider Boyle, at 749-50 workplace “[w]hen the tructive.2 710 N.W.2d rights suggested rely Iowa civil 2. It has been that we should not on federal law because 572 action.” appropriate diate and corrective
(recognizing that Title VII hostile-work- J., 74, (Marshall, Id. at 106 at S.Ct. 2409 has the same elements environment claim concurring) (quoting 29 claim); DeBoom, C.F.R. also as ICRA see 772 (1985)). 1604.11(c),(d) (“When § interpreting at 7 discrimi- N.W.2d chapter claims nation under Iowa Code later, Lynch City Four Des years v. 216, law, including we turn to federal Title Moines, of a we held “maintenance Rights Civil United States VII through sexually hostile work environment .”)(cid:127) Accordingly, Act... we will review illegal sexual harassment is a form of sex development liability of these un- theories 454 [the ICRA].” discrimination under interplay and the der federal caselaw (Iowa 827, 1990). 833 We deter N.W.2d our prece- court’s those decisions required prove mined plaintiff dents. “the or known employer knew should have to take the harassment failed Supreme
The United Court first States prompt appropriate remedial action.” recognized sexu- hostile-work-environment Although Lynch Id. a coworker- as actionable discrimination al harassment case, subsequent rec harassment decisions Bank, Vinson, Savings in Meritor FSB v. ognized su applied this standard both 57, 66, 2399, 2405, 106 91 477 U.S. S.Ct. pervisor coworker harassment under (1986), notably 49 a supervisor- L.Ed.2d Greenland ICRA. See v. Fairtron Although harassment de- case. Court 36, 1993) (cit (Iowa Corp., 500 38 N.W.2d adopt a rule clined to definitive for sexual- ing supervisor for harass same standard liability, rejected harassment expressly it ment); Inc., Ag Vaughn Processing, 459 always notion that “employers au- (Iowa (en banc) 627, 1990) N.W.2d 634 tomatically for liable sexual harassment (applying supervisor same standard 72, supervisors.” at their at 106 S.Ct. harassment); Mercy Hosp., Edmunds v. Instead, “agency 2408. Court looked (Iowa 1993) 877, 503 App. Ct. N.W.2d guidance” for principles setting liability standard for (noting supervisor same four-justice A standards. Id. concurrence harassment). predominant noted at standard 1998, for liability: time Supreme coworker-harassment In United States recognized employer will be liable it liabil- when Court vicarious Ellerth, ity “knows con- for supervisor should known harassment. have duct, it The Court unless can U.S. at 118 S.Ct. 2267. show that took imme- case, appropriate were statutes enacted before Title VII. The framework however, legislature, Chauffeurs, expressly Iowa did N.W.2d at ICRA. (holding provision include a union liable when members harassed hostile-work-environment 216.6(1). epithets § in the ICRA. man See Iowa Code Rath- African-American with racial actions). er, Savings developed through threatening claim has been our Meritor caselaw, Bank, Vinson, beginning Supreme also expressly FSB v. Court based precedent. adopt recognized on Title VII We first on the framework relied Henson to VII claim for hostile-work-environment for sex dis- Title hostile-work-environment claim Moines, 57, 66-67, City Lynch sex discrimination. crimination in Des U.S. 1990), 2399, 2405, (1986). (Iowa relying Hen- N.W.2d L.Ed.2d 49 Chauffeurs, Helpers, employer responsi- & son that to hold Teamsters Local Union states Commission, Rights "creating condoning en- hostile]
No. 238 v. ble for [a Iowa Civil (Iowa workplace,” Chauffeurs, in vironment turn, among employ- prove, things, other the elements hos- must "the delineated racial claim, er harassment re- knew or should known the harass- tile-work-environment Dundee, prompt lying City question ment and failed take Henson v. 682 F.2d 1982), VII action.” 682 F.2d Federal Title remedial *19 (Second) relied the of would be vicariously Restatement liable unless could states, Agency, show which (a) that [it] exercised reasonable care to (2) subject A for liability master is not prevent promptly any and correct sexu- acting
the torts of his servants
outside
ally
behavior,
(b)
harassing
that the
employment,
of
scope
their
unless:
plaintiff employee unreasonably
failed
any preventive
take advantage of
or cor-
(b)
negligent
master
reck-
opportunities provided
rective
by the
less, or
employer or to avoid harm otherwise.
765,
Id. at
at
118 S. Ct.
2270. The Court
liability
echoed this
(d)
vicarious
for
standard
purported
servant
act or
supervisor liability
Faragher,
another
speak on
of the principal
behalf
supervisor-harassment case decided on the
upon apparent
there was reliance
au-
day.
same
acter, sense, (b) (d) supervisor possible and in this Subsections always agency grounds imposing employer liability aided relation.” El lerth, supervisor’s S.Ct. at 2269. on account U.S. acts and Thus, must considered. Under subsection Court held
574 that in which
(b),
“[i]n
the tort Vance notes
cases
employer
an
is liable when
‘supervisor’ ... different
harasser
is a
employer’s own
to the
is attributable
simply
apply,”
rules
reiterates
Thus, although
supervi-
a
negligence.
liability
imposed only
is
for su
vicarious
is
harassment
outside
sor’s sexual
harassment,
pervisor
not
harassment
for
con-
scope
because the
Id. at
nonsupervisory coemployee.
a
motives,
em-
personal
for
duct was
-, 133
at 2439.
S.Ct.
nonetheless,
liable,
where
ployer can be
a
negligence
own
is
cause
its
appeals
circuit
Several
courts of
federal
is
employer
negligent
harassment. An
Faragher
after
have held that
Ellerth and
if it
respect
sexual harassment
be
supervisor
can
suits for
harassment
or
have known about the
knew
should
or
brought
liability
either
under
vicarious
stop Negligence
it.
conduct and failed
v.
Sharp
negligence
direct
theories.
Houston,
for employer
a
City
sets minimum standard
the United
Court
States
VII;
liability
Title
Ellerth
Fifth
Appeals
recognized
under
but
for the
Circuit
supervisor
a
stan-
claim for
harassment
stringent
the more
seeks
invoke
a
or
proceed
negligence
could
on
“knew
liability.
dard
vicarious
theory
should have known”
because
758-59,
Ellerth,
at
524
at
U.S.
negligence
supervisor
for
harass
standard
(citation omitted).
added)
(emphasis
Faragher
ment was
disturbed
“not
theory
liability
conclude the vicarious
We
(5th
Cir.
F.3d
[Ellerth].”
supplement,
replace,
intended to
although the
The court noted that
theory for
negligence
supervisor
direct
negligence
applied
was typically
standard
harassment.
harassment,
concept of
to coworker
“[t]he
Supreme
Court’s decision
a
stan
negligence
imposes
‘minimum
thus
University,
U.S.
Ball State
Vance
employer liability—direct
for
liabili
dard’
-,
133 S.Ct.
186 L.Ed.2d
VII,
ty—under
a
title
standard
(2013),
contrary.
At
issue
supplemented by
agency-based
stan
employee
a
was whether
certain
Vance
liability
dards for vicarious
as articulated
merely
coworker, for which
em
(citation
Faragher
Id.
[Ellerth].”
liable
ployer
only
could
be held
omitted);
Mercy
Debord
Health
see also
standard,
supervisor,
negligence
or a
for
Kan., Inc.,
642, 650-53
Sys.
737 F.3d
employer
could also face vicari
which
(10th
2013) (analyzing employer
Cir.
liabili
at -,
liability.
id.
ous
See
133 S.Ct.
ty for
under both
supervisor harassment
The Court stated that “Ellerth and
negligence
liability
vicarious
stan
Faragher
two situations
identified
in which dards); Dees v. Johnson Controls World
aided-in-the-accomplishment
rule war Servs.,
(11th
Inc.,
F.3d
Cir.
employer liability
rants
even in the ab
1999) (“[A]n
directly
employer can
held
at -,
negligence.”
sence
133 S.Ct.
when
supervisor’s
liable
harassment
for
added).
That
(emphasis
sentence
intended,
negligent
employer
either
nonnegligent
simply
confirms a
to oc
ly permitted,
the tortious conduct
vicariously
Coll.,
for its supervisor’s
cur.”);
can be
liable
v. Tulsa Junior
Wilson
at -,
1998)
harassment.
id.
133 S.Ct.
(recog
See
540 n.4
F.3d
(“[A]n
liability
employer’s
negli
nizing
“continuing validity
such
may depend
gence
separate
harassment
status
as a
basis
added.)).
liability”
al
(Emphasis
the harasser.”
We
which
action
harassment).
nothing
precludes
leged
al
HES cites
supervisor
read
in Vance that
holds a
cannot
negligence theory.
no decision that
lowing
direct
While
bring
negligence
trast,
against
claim,
direct
claim
negligence
direct
*21
harassment,
supervisor
employer for
and
must
plaintiff
prove
employer
“the
...
we have found none.
take prompt
appropriate
failed to
and
re-
Lynch,
medial action.”
That liable for negligence proposi- their is not a own new B. Whether District Court (Second) tion. Em- The Restatement Correctly Jury Instructed the on the Di 4.02, (2015), Law, ployment section at 134 Negligence Theory. rect nextWe address Liability “Employer’s entitled Direct to correctly whether the was instructed Conduct,” Employees for Its Own provides negligence theory. the direct The dis subject liability that “an to in employer essentially trict court adopted Hasken- tort to an for in harm caused instruction, proposed marshaling hoffs course of employment the tortious con- which omitted an she element was re duct employer controlling quired prove—that to HES “failed to take added.) (Emphasis Similarly, owner.” appropriate prompt and remedial action.” (Third) Restatement of Agency, section objected Id. HES the omission that 7.03, (2006), provides princi- at 151 that a element, and we conclude the district court pal is liable for its “se- negligence own prejudicially by overruling objec erred lecting, supervising, or control- otherwise giving tion 14 Instruction No. without ling agent” to any in addition vicarious that language. took Whether fact HES liability may be imposed via the “prompt appropriate action” was agent’s actions. fighting issue at jury question. trial and a plaintiffs We hold as a Haskenhoff did establish matter may proceed against employer ICRA prompt that HES failed to take law negligence on either a direct vicarious action. appropriate liability supervisor theory harassmеnt requiring standard in a hostile-work-environment case. The prove employer’s failure defense, Faragher-Ellerth affirmative “places prompt take remedial a rea action ap on the proof employer, burden of duty on an who is sonable aware plies only to liability. claims vicarious workplace discrimination take Ellerth, 524 at 118 at 2270 U.S. S.Ct. steps remedy Vaughn, it.” reasonable (adopting “in affirmative defense order to 459 634. Whether the agency principle vi accommodate duty question met this is a fact and liability carious mis harm caused harm, gravity “the turns on supervisory authority” (emphasis use of environment, nature of work and the added)); Faragher, 524 accord U.S. employer.” resources available to the 2292; see v. also Johnson Shinseki, F.Supp.2d complained n.2 time The first Haskenhoff (D.D.C. 2011) harassment, (holding court about management because the Howes’s standard, applied negligence management “the Far- met with promptly senior her agher verbally inapplicable”); defense Howes confront- Swinton and Howes. was (9th Corp., Potomac F.3d Cir. in a manner that led him and others to ed 2001) (stating apolo- apply did not believe he faced termination. Howes defense Haskenhoff, standard); Haskenhoff, negligence gized Gen. be- Lintz Am. Fin., (D. resolved, Inc., F.Supp.2d lieving the harassment issue was 1999) Faragher-Ellerth Kan. de no be taken at (rejecting further action asked action). By con- negligence fense See Nurse “BE" v. direct time. Columbia outside tigation launched with counsel. 490 F.3d P’ship, Hosp. Ltd. Palms W. 2007) if man (holding that HES interviewed. Witnesses were harassing be to con agement coemployees [the not want employee “did admonished upon, then or acted reported [the professionally havior] and take themselves duct placed been not have employer] would saver. Sexual the offensive screen down (altera of the harassment” notice proper scheduled. Howes training was harassment v. Lowe’s (quoting Olson original) tions apologized. See Wil disciplined Ctrs., Inc., Fed.Appx. Home son, may (jury consider 164 F.3d at *22 2005))). (11th made Haskenhoff Cir. n.21 employer’s of effectiveness availability and management dur complaints to no further to HES was entitled complaint procedure). manage months. HES ing nine the next jury whether Haskenhoff have the decide reasonably prior assume its ment could prompt to it take proved that had failed An adequate. See v. efforts were remedial action. appropriate 667, Cal., Fed.Appx. 94 Regents of Univ. of argues im 2004) Haskenhoff Vance (10th (determining employer 676 Cir. negli employer an is poses liability to when complaint initial limited not liable when occur, employee allowing feel un to re gent made in harassment one comment that comfortable, employee made no fur subsequent then or corrective gardless of notice management and assured complaint ther on Haskenhoff relies disagree. action. We com things “okay” until second were “As an initial mat sentence Vance: plaint). ter, always be liable will' when employer an or con to the creation negligence its leads of complained next Haskenhoff
When
environment.”
of a hostile work
2011,
tinuation
August of
took
HES
harassment
at -,
133
at 2452.3 How-
570
S.Ct.
A formal
U.S.
action.
inves-
immediate remedial
charged
steps
if it
to discov
takes
suggested
created
‘reasonable
been
that Vance
It has
rectify
by its
of sexual harassment
liability, negligence in
er and
acts
negligence
types of
two
”
omitted)
(citation
Perry
negli
employees,’
(quoting
failing
prevent
the harassment
to
Inc.,
Chernin,
1013
126 F.3d
v.
gence
failing
remedy it.
the standard
Harris
to
But
Va.,
1997)));
(7th
Spicer
neg
Cir.
v. Commw.
705,
negligent
prevent
for
failure to
both
(4th
Corr.,
Dep’t
F.3d
Cir.
remedy
an em
ligent
is the same:
failure to
1995) ("On
establishing
for
element
fourth
only
if he knows or should
ployer is
liable
repeatedly
employer liability, we have
held
to
known of the harassment and
have
failed
See,
for
employer
be held liable
e.g.,
that an
cannot
rectify it.
prompt
to
take
measures
Prods., Inc.,
employees
its
unless the
remarks of
isolated
335 F.3d
v. Scollon
Ocheltree
(4th
2003) (“[T]he
known of the
employer
or
have
employer may
‘knew should
Cir.
harassment,
took no effectual action to
negligence
if
knew or should
be
it
liable
”
Dole,
(quoting
correct the situation.’
Katz
the harassment
have known about
failed
(4th
1983)); Adler v.
(Emphasis
F.2d
stop
Cir.
action
it."
take effective
Stores, Inc.,
(10th
("An
added.));
F.3d
Sharp,
employ
filed would
relevant.”
suggested
It
been
has
that the
need
requirement
at 2453. Removing
not be
employer’s
instructed
regarding
prove
management,
remedial efforts
negligent-
if
neglected to take
action
corrective
harassment,
ly
took no
unaware
action.
impose
liability
strict
automatic
That
this. case.
two
Haskenhoff
employer whenever
harassment
supervisor
complained
management
occasions
tangible
without a
em
occurred
adverse
about Howes’s
On
occa-
harassment.
both
*23
action,
ployment
position
sions,
a
our court has
management
stop
took
to
the
action
adopted
Supreme
never
and the
Court has
harassment.
for
jury
It
the
deter-
was
to
mine,
expressly
adopt.
See Faragher,
instructions,
declined
under proper
whether
“
adequate
(quot
prompt
plaints
supervisors,
and
remedial action.'
harasser’s conduct
Inc.,
USAIR,
552,
ing
remedied”);
v.
830
558
F.2d
not
Killis
"was
v.
Swentek
Cabela’s Retail
(4th
1987)
added))),
II, Inc.,
6532,
(emphasis
128098,
Cir.
vacated
No. 13 C
WL
2015
at
(4th
part
grounds,
(N.D.
2015)
Cir.
8,
on other
rating, F.3d Cir. 654, (D.C. 1999); Swinton, see also 1999). Employers are better deterred (“It might 270 F.3d at reasonably if allowing harassment to continue their argued, fact, that employers are ‘better prompt corrective action avoid will liabili context, off in negligence where the Ellerth, ty. See U.S. 118 S.Ct. plaintiff required prove both the em- (“Limiting at 2261 employer liability is also ployer’s (or knowledge of the harassment purpose consistent with Title ATI’s to the known) it should have encourage extent it creation and failed to take reasonable corrective ac- policies use of antiharassment griev tion.”). The district court erred omitting procedures.”). ance proof that element of from Instruction No. 14. This error harmless. Finally, allowing marshaling one in- required jury Reversal is when struction on direct negligence—requiring instructions contain a “material misstate prove knew misleading or law” ment should have known the harassment Rivera, confusing. N.W.2d take prompt appropriate failed to convey When instruction fails cen coemployee remedial action—for both principle liability, tral this warrants a supervisor harassment confusing avoids Thomas, new trial. See Benn v. jury differing instructions with standards. (Iowa (remand 1994) 539-40 It also avoids issues a par- over whether ing for new trial when instruction on supervisor. Mixing ticular is a proximate adequately “failed to con cause authority employees different levels of law”); vey existing Hemming Law v. problem “presents negligence no for the sen, 825-26, 249 Iowa 89 N.W.2d Vance, -, standard.” U.S. (1958) (determining to in refusal S.Ct. at 2452. struct principle negli on well-settled *25 gence very “at heart of case” the the was Haskenhoff is the master of her error). a central The instruction omitted by deciding pleadings. pursue own But to plaintiffs element the claim—to show supervisor negligence theory direct employer the failure of the to take prompt harassment, rather than liability, vicarious and appropriate remedial action. Omission proving she assumed the burden of not of this was a element material misstate only that have HES knew should known ment and entitles HES to a new law harassment, of Howes’s also that it but Pearson, trial. See State 804 N.W.2d prompt failed to action take to remedial (Iowa 2011) (holding n.1 omission stop Lynch, it. 833-34. N.W.2d at jury in the of of instruction element While the of an reasonableness em- Law, trial”); “requires fense a new ployer’s response to sexual harassment (re 825-26, 89 Iowa at at N.W.2d 390-91 standards, is at issue under both it versing was court because error for to higher must clear a hurdle un- negligence). to refuse combined instruct standard, negligence der the where she establishing bears prejudice the burden of her em- “We assume unless ployer’s negligence, affirmatively than under the vi- record establishes standard, Rivera, liability prejudice.” carious there no where bur- was prove prejudice den shifts to to No its results when N.W.2d in- marshaling the flaw legal cure omits arguably “one instruction read as the instructions are subsequent struction when included requirement nowhere told Hask- jury The the in- a whole. was ground that on the instructions prove failed burden to HES Id. enhoff to as a whole.” had are be read structions appropriate remedial however, prompt to “When, inadequate instruction take goes to recovery action harassment.6 relating right to the end it is not res- very ‘the heart case/ holding no case cites Haskenhoff instructions elsewhere.” by abstract cued instruc- marshaling omission fatal Law, 249 Iowa (quoting during sum- counsel tion be cured could have here. That is what we contrary, Haskenhoffs To the mation.7 in- separate gave jury court of the flawed advantage The district took counsel action, struction, argument. which She closing No. remedial in her instruction stated, plaintiff’s say it burden did was prompt remedial prove HES failed take or should knows
Once action, argued but instead harassment, known sexual remedial rea- prompt action must take remedial talks about action. Number conduct. sonably calculated end or should know employer knows Once an duty to take employer has harassment, it must the sexual about employee if an asks action remedial even reasonably prompt remedial action take anything. employer not to do The em- to end the conduct. calculated duty to take this remedial omitted.) ployer has a instruction This (Emphasis em- if an asks the in- action even marshaling in the not cross-referenced nothing. ployer do and does any other instruction struction added.) This instruction allowed (Emphasis plaintiff's proof burden of ad- 6. Nor jury find for if HES Haskenhoff "Exis- No. entitled in Instruction dressed any respects, negligent in of the above even Policies—Explained,” which if tence of Official jury employer in fact found the took they wheth- could "consider told the prompt appropriate remedial action care reasonable er the defendant exercised end the harassment. to" Corp. is not to the con- v. Avco 7. Hillrichs workplace; Monitor the [a] 1991), (Iowa trary. N.W.2d 70 overruled making complaints; system for Provide a [b] Corp., Chrysler grounds by Reed v. on other they Encourage employees who believe [c] (Iowa 1992), 224, 230 overruled 494 N.W.2d being complain; harassed Co., Hyundai 773 N.W.2d Jahn v. Motor thorough impartial prompt, Conduct [A] (Iowa 2009)). There, deter- we investigations any potential sexual into *26 ordinary jury uniform mined a instruction they of, it harassment become aware whether legal adequately conveyed proper the care through complaint is or observation care concept jury it referred to to the because hearsay; reasonably person use careful would that "a any person Reasonably who assure that [e] We Id. at 74. similar circumstances." under reports will not suffer sexual harassment similar the words “under circum- noted that retaliation; "adjustf] to the standard to stances” allowed policy their [f] Communicate harassment to of the actor the circum- both the status and employees employees will so understand contin- that the actor faces.” Id. We stances ued, they may may what and not do the work- may ade- be "These are matters place; jury by quately the evidence conveyed to the workforce, [g] especially mem- Educate in- argument the of under by counsel the and management, appropriate gave.” bers with the Id. Hillrichs struction that court training committing of an element to harass- not involve the omission avoid sexual did marshaling proof from the instruction. ... ment. added.) This is We (Emphasis not a case like therefore determine HES State v. in which counsel’s clos Rivera, Thorndike is entitled a new trial.8 ing argument effectively cured the instruc at 892 (“Prejudice occurs and re N.W.2d conceding improper tional error is if required jury versal instructions have apply did evi not under instruction. , jury, misled the or if the court district (Iowa dence. N.W.2d 316 law.”). materially misstates the C. Whether the District Erred Court given by There no instruction Instructing “Motivating on a Factor” argue plain court HES allowed Retaliatory Discharge. Standard tiff proving could recover without it court erroneously district argues HES prompt to take action. remedial failed adopted “motivating the lower factor” cau- arguments Closing lengthy, were extend discriminatory sation standard used dis- morning ing until p.m. 2:30 (Iowa charge claims section Code encompassing 130.pages the trial tran 216.6(l)(a)), higher “signif- rather than the Closing “generally script. arguments carry factor” icant causation standard used jury weight less than instruc with do (Iowa retaliatory discharge claims Code Boyde California, tions from the v. court.” 216.11(2)). section argues Haskenhoff 370, 384, 1190, 1200, 110 S.Ct. U.S. (1) DeBoom, 12-13, (1990).“The former are L.Ed.2d usual the correct causation standard for all ly billed advance as matters test, motivating-factor ICRA claims evidence, argument, likely and are (2) law, unlike federal lower causa- advocates; viewed as statements tion standard retaliation should be used latter ... are viewed as definitive and (cita the ICRA is a binding because unified statements law.” statute omitted). broadly tion be read should effectuate its remand, Sharp, may clarify Because arise we lem” must be notified. at 930 F.3d Inc., prove Electrospace Haskenhoff cannot that HES (quoting Sys., "knew Nash (5th to take reme- 1993); should known” and failed F.3d Cir. see Sando also showing only dial action that Howes Indus., Inc., Bldg. val Maint. 578 F.3d Am. doing” "knew what he was when he behaved 2009) ("An employer has inappropriately For toward Haskenhoff. ex- actual notice harassment when sufficient following exchange place ample, took be- information either to the comes attention tween Wendland and Haskenhoff’s counsel power has someone who terminate regarding alleged harassment: harassment, or it can comes to someone who Q. regardless somebody So whether reasonably expected report or refer a complains, commenting if men on anoth- are complaint put to someone who can an end to er in the workplace, female’s breasts it.”). inquiry focus must on whether policy? be a violation A. Homeland’s authority discipline with Howes someone Absolutely. brought If my it was attention remedial action to take knew of anybody compa- and I knew it or in the about Sharp, failed to address conduct. 164 F.3d it, ny knew about we it imme- address .would ("In harassment, of sexual context diately. persons power such those remedial Q. plant Including manager? A. In- harasser.”). Alternatively, over the Hasken- plant manager. cluding the knowledge by may prove hoff constructive Q. your obviously plant manager And if *27 showing so.open perva harassment was making the comments a about woman’s that, care, sive the in exercise of reasonable it breast, that; doing yes? he knows he’s by management- been should have discovered perpetrator It is not sufficient the himself employees. level See Des v. Moines doing, super- he Alvarez knows what is even if he is a Inc., Rather, notice, Supply, Bolt 626 422 placed visor. to be F.3d actual authority prob- someone "with address 2010). 582 Inc., Xpress, goals. Smithway Iowa Smith Motor remedial See Code
broad
1990)).
(Iowa
464
216.18(1).
a
686
§
note
was not
N.W.2d
We
DeBoom
our retaliation
apply
retaliation case
separate provision,
A
section
Iowa Code
require
higher
causation
decisions
216.6(l)(a),
discriminatory dis
forbids
at 13.
standard. 772 N.W.2d
i.e.,
discharge because
discrimi
charge,
on a protected
nation based
characteristic.
analysis begins
the text of the
Our
different; it
Retaliatory discharge
pro
is
ICRA,
Code section
statute. The
Iowa
discharge or
discrimination based
hibits
216.11(2),
it an
or
makes
unfair
discrimina-
employee’s engaging
protected
in
tory practice
216.11(2). Though
§
activity. See id.
against
to ...
an-
[a]ny person
retaliate
related,
concepts
they
two
are
not the
rights
in
any
pro-
other person
same; one prohibits status-based discrimi
against
discrimination
this
tected
discharge,
natory
prohibits
the other
while
chapter
has
person
because such
lawful-
in
discharge
protected activity
based on a
any practice
ly opposed
forbidden under
engage.
See
employee
which an
chooses
obeys
chapter,
provisions
this
of this
Nassar,
Univ. Tex. Sw.
Ctr.
570
Med.
chapter,
complaint,
or has
testi-
filed
U.S. -, -,
2532, 186
133 S.Ct.
fied,
in any proceeding under
or assisted
(2013) (explaining
the differ
L.Ed.2d
chapter.
ence
claims
re
betwеen status-based
retaliatory
to recover for
order
dis-
claims).
discriminatory
taliation
Under
charge,
prove
must
statute,
discharge
show
an
must
(1)
engaged
statutorily
he
she was
on a
discrimination based
characteristic—
(2)
activity,
protected
took
in a
engaging
protected activity—con
not
employment
against
action
him
adverse
“motivating
stituted a
factor” in the ad
(3)
her,
con-
DeBoom,
there was
causal
employer.
verse action of the
participation
or her
nection between his
a “mo
N.W.2d
12-13. Discrimination is
at
protected activity
the adverse
if
tivating factor”
adverse action
employment action taken.
pro
employee’s status
a member of a
as
“played part” in
employ
tected class
Boyle,
N.W.2d
at 750.
causation
omitted).
(emphasis
er’s
decision.
retaliatory discharge
has
standard
cases
This
than the
lower causation standard
high
City
characterized as “a
one.”
been
significant-factor
applied in retal
standard
Hampton,
(quoting
at 535
N.W.2d
iatory discharge
ICRA
cases under the
Hulme,
42).
N.W.2d at
The causal
and the common law.9
‘significant
connection “must be a
factor’
motivating-
motivating
the adverse
deci
DeBoom clarified
Hulme,
(quoting
discriminatory
test
dis-
applied
sion.” Id.
factor
N.W.2d
DeBoom,
A
significant
charge
if the
cases.
factor
reason
See
N.W.2d
“
way
‘tips
decisively one
or the
13. But it
not
even
the scales
did
alter—or
reference
other,’
section—retaliatory
if it is
predominate
not the
name or Code
dis-
even
Rather, DeBoom,
employer’s
charge
reason
decision.”
claims. Id.
behind
we
Dist.,
Cmty.
be-
City
Teachout v. Forest
careful to note the difference
Sch.
were
(Iowa 1998)
discriminatory discharge
causa-
(quoting
tween
so—if,
speak,
require
does
so
This standard
retaliation
have done
cause;
retaliatory
may
back.”
the sole
the straw that broke
camel's
motive
U.S. -, -,
States,
produce
Burrage
other
combine with
factors to
v. United
(2014).
881, 888,
long
result
583
tion
“higher”
standard and the
discriminatory
causation
and not
discharge under
216.6(l)(a),
standard of claims such as tortious dis
section
should have
charge.
compared
frequently
Id.
have
been
We
instructed
the correct causation
discharge
tortious
under common law and
standard—requiring
prove
Haskenhoff to
ICRA,
discharge
retaliatory
protected
as
her
a significant
conduct was
See,
possessed
simi
traditionally
e.g.,
two have
factor.
French v. Cummins Fil-
tration,
Inc.,
lar elements
causation
C11-3024-MWB,
standards. See
No.
2012
Teachout,
(N.D.
(stating
Papa John’s found different sections exactly almost sion of the ICRA mirrors Congress inserted the amend had VII, of Title which provision the retaliation only into part. ment one Id. The Court also states, increasing of retal pointed out the number employment
It shall
an unlawful
be
at -,
being
claims
filed. Id.
iation
employer to
practice for an
discriminate
Lowering the
at 2531.
causation stan
S.Ct.
... be-
against any
employees
of his
dard,
explained,
increase
Court
could
any practice
cause
made
opposed
he has
the number
claims:
unfounded
by this
employment practice
an unlawful
lessening
In addition
the causation
or
subchapter,
because he has made
could also contribute
standard
testified, assisted,
participat-
charge,
or
claims,
filing
which would
frivolous
investigation,
any
manner
ed
em-
siphon resources
efforts
hearing
or
this sub-
proceeding,
under
agencies,
ployees], administrative
chapter.
workplace
courts
combat
harassment.
(Iowa 2004)
(quoting
679 N.W.2d
regard
of an
Consider
case
(2004)).
§
2000e-3
“Title VII
U.S.C.A
employee
or
who knows
he
she is
designed
equal opportunity
ensure
was
performance,
poor
to be
for
about
fired
all,
sex.
regardless
for
grade,
just
given
pay
a lower
or even
VII,
modeled
Title
The ICRA
after
assignment
transferred to
or
a different
consistently em-
and therefore we
action,
To
location.
forestall that
analysis
interpreting
lawful
ployed
when
federal
(citation omit-
might
tempted
Id. at
he or she
be
to make an
the ICRA.”
677-78
ted).
for es-
Finally,
racial, sexual,
the ICRA’s elements
charge
unfounded
tablishing
prima facie
case
retaliation
discrimination; then,
religious
when
in-
“from federal
derived
decisions
were
comes,
employment action
unrelated
of Title
volving comparable provisions
VII
allege that it is retalia-
could
Hulme,
Rights Act of 1964.”
of the Civil
employer
if the
tion ....
Even
could
42 (citing
at
42 U.S.C.
480 N.W.2d
trial,
escape judgment
after
lessened
2000e-2000e-3).
§§
causation
would make it far
standard
provides
higher
VII
causation
Title
more
claims
difficult
dismiss dubious
for
than dis
retaliation claims
standard
judgment
stage.
It
summary
at
Nassar,
discharge
criminatory
actions. See
would be
with the structure
inconsistent
-,
U.S.
at
S.Ct.
operation of
so
Title VII
raise the
Nassar,
brought
retaliation case
costs,
reputational,
both
financial and
VII,
Supreme
explained
Court
Title
not in
actions were
whose
codifying the 1991 Amendment
that in
any
fact
discriminatory
the result
Act,
Rights
the Civil
Congress did
retaliatory
there
intent. Yet
intend to
causation
lower the
standard
if
significant
consequence
of that
risk
discharge cases,
un
retaliatory
although
respondent’s position
adopted
were
here.
discriminatory
dis
questionably
so
did
at -,
(citations
Id.
at -,
133 S.Ct.
charge.
2528-30.
S.Ct. at
Id.
omitted).
provi-
Court
the two
reasoned
’’
at -,
act,’
(quot
cisión.’
tween
Next,
Employment
verse
we ad-
Action.”
employers
it easier for
makes
*31
the court’s instruction de-
dress whether
and bar to
the law.
apply
follow
bench
fining
employment
action was
adverse
in-
the district court’s
conclude
We
argues
re-
erroneous. HES
the instruction
motivating-factor
applying
struction
law
flected an inaccurate statement
erroneous.
causation standard was
following
examples
because it listed
as
II,
marshaling
for Count
re-
instruction
action:
adverse
court
taliatory discharge,
the district
reprimands
reprimands,
or
that
threats of
should have
instructed
...
be-
protected
complaints,
ac-
false accusations or
prove
Haskenhoff must
lawfully
any practice
improper
reason
an "essential
opposed
has
must be
forbidden
Act,
ingredient”
provisions
discharge (quoting
in
obeys
this
of this
First
under
testified,
Act,
Zarebidaki,
complaint,
Prop. Mgmt. Corp.
or
S.W.2d
or has filed a
v.
867
Act”),
185,
1994)));
any proceeding
(Ky.
under
this
United Parcel
assisted
187
Goree v.
1964,
Serv., Inc.,
413,
(Term.
Rights
88-
Ct.
Civil
Act of
Pub. L. No.
490 S.W.3d
439
352,
(codified
704(a),
241,
2015) (stating
§
App.
258
78 Stat.
that Tennessee Act did
2000e-3(a)
causation,
§
(prohibit-
at
require
amended
42 U.S.C.
required but-for
sole
but
ing
any
causation,
Nassar);
opposed
following
"because he has
Navy
retaliation
v. Coll. of
employment prac-
Mainland,
893,
(Tex.
practice
unlawful
made an
Ct.
407 S.W.3d
901
title,
2013)
he
made a
tice
or because
has
App.
(stating that
discrimination
unlike
testified, assisted,
charge,
participated
claims,
or
require higher
claims
stan
retaliation
investigation, proceeding,
any
Act).
manner in an
dard
causation under Texas
title").
hearing
or
under this
recognize
higher
Other courts
stan
that
necessary
dard of causation is
for retaliation
Inc.,
Tremco,
example,
For
v.
claims, though they
Wholf
define the standard
Appeals applied higher
Ohio
causa-
Court
varying ways.
Hensley
See
v.
Gen.
Botsford
claim
its
tion standard to a retaliation
under
323805,
146355,
Hosp.,
*6
2016 WL
No.
аt
902,
rights
own civil
statute. 26 N.E.3d
908-
(Mich.
12, 2016)
App.
(per
n.1
Jan.
cu
Ct.
(Ohio
App.
09
Ct.
court
riam)
Wholf
(suggesting
significant-
that
noted,
test,
factor
but-for
the result would be the
or
Corr.,
same);
Assembly
Thompson
Dep’t
No.
separated
[T]he
General
[Ohio]
(Mich.
319668,
1261539,
claims from re-
2015 WL
at *5
Ct.
status-based discrimination
2015)
(“While
19,
curiam)
App.
(per
separate
taliation claims in
subsections
March
And, despite
argu-
authority
there
that
is
R.C. 4112.02.
Wholf's
is
states
factor,
motivating
contrary,
liable
ment to the
Ohio’s anti-retaliation
if discrimination
nearly
require
provision is
identical to
VII’s
cases continue to
a show
Title
retaliation
ing
significant
must
fac
provision.
retaliation
be a
anti-retaliation
omitted.));
Owen,
(Citation
pointed
also
out
tor.”
Lacasse v.
Id.
908. The court
(2016)
Or.App.
‘but-for’
278
373
1183
"the
standard articulated in Nassar
P.3d
standard;
(”[P]laintiff
prove
un
not a new
it is a
of the
must
that defendant’s
clarification
applied in
in his
been
retaliation
lawful motive was a substantial factor
that has
standard
or,
words,
termination,
Supreme
he would
cases since
decided Price
in other
Court
Hopkins,
differently
have been treated
in the absence
[v.
Waterhouse
U.S.
motive.”);
Auth.,
(1989),] in
the unlawful
Allison v. Hous.
[104
268]
S.Ct. 1775
L.Ed.2d
(1991)
912;
Asbury
821 P.2d
1989."
see also
Univ. v.
Wash.2d
Powell,
(en
2016) (not
banc)
(Ky.
(declining
adopt
im
a standard
S.W.3d
liability
ing
previous
aligned
posing
if
affected motive
cases
with Nassar
retaliation
test,
any degree”).
employing a
in which
"to
substantial-factor
being
ing investigated,
placed
per-
on a
Whether an
adverse
action
plan,
improvement
being
“normally
formance
occurred
depended]
on the
placed
Channon,
facts of
probation,
or
each situation.”
other actions
adversely
(quoting Bryson,
which
affect or
undermine the
F.3d at
916);
position
see
employee[,]
Burlington
... an
also
N.
em-
& Santa Fe
ployer
negative
Ry. White,
53, 71,
seeking out
feedback on
548 U.S.
126 S.Ct.
2405, 2417,
(2006) (“Ma
an employee,
condoning
encourag-
L.Ed.2d
ing
employees
terially
other
to complain
depends upon
about
adverse
the circum
case,
her.
stances of
particular
and ‘should
judged
perspective
of a rea
points
HES
no
out that
Iowa court has
person
plaintiffs
sonable
position,
held
“materially
these actions are
adverse
’ ”
considering “all
the circumstances.”
actions” for
purposes
a retaliation claim
(quoting Oncale v. Sundowner Offshore
under the ICRA.
Servs., Inc.,
75, 81,
523 U.S.
*32
retaliation,
prove
order
a
1003, 140
(1998))).
201
L.Ed.2d
plaintiff
must
“the
show
took
Supreme
in Burlington
Court
employment
against
adverse
action
him or
provided
Northern
guidance
further
Boyle,
previ
her.”
at
710 N.W.2d
750. We
qualifies
what
employment
as an adverse
ously
employment
held that an adverse
action in a
claim. A
retaliation
female em
action is “an action that detrimentally af
White,
ployee,
assigned
oper
Sheila
was
terms, conditions,
privileges
fects the
or
forklift,
position
ate a
a desirable
because
employment. Changes
duties or working
it was less arduous and cleaner than other
materially signifi
conditions that
no
cause
57-58,
tasks. 548
U.S. at
S.Ct. at 2409.
disadvantage
employees
cant
to the
about
complained
After White
a male em
actions.”
employment
adverse
Cha
her,
ployee harassing
she was moved off
Serv., Inc.,
nnon v. United Parcel
reassigned
duty
forklift
to more
(2001).
variety
N.W.2d
wide
“[A]
physically demanding position.
at
Id.
actions,
subtle,
some blatant and some
at
S.Ct.
2409. White filed an EEOC
qualify”
employment
can
as adverse
ac
thereafter,
complaint.
Shortly
Id.
her su
Bryson
tions. Id. at
(quoting
v. Chi.
insubordinate,
was
pervisor alleged she
Univ.,
912, 916
State
96 F.3d
her
company suspended
without
1996)).
may
Adverse action
“disci
include
Id.
pay
thirty-seven days.
After deter
termination,
demotion,
plinary
unjustified
unfounded,
mining
complaint
was
evaluations
loss of
reports,
normal
company
backpay.
reinstated her with
Id.
assignments,
work
proba
and extension of
tionary period.”
(quoting
Deciding
McKenzie
had
an
Id.
whether White
suffered
(D.
action,
Co.,
Atl.
F.Supp.
employment
adverse
Court de-
Richfield
1995)).
Colo.
to limit
retaliatory
We have also concluded that
clined
adverse action
losing a
or
prestigious
opportunity
only
title
those that “affect the terms and
advancement,
physically punching
employment.”
an
Id. at
em
conditions
ployee,
employee
an
at
differed from
reducing
from S.Ct.
2412-13. This
qualify
full- to
as
action
part-time
interpretation
can
adverse Court’s
adverse
(con
employment
id. at
provision,
actions. See
the antidiscrimination
demotion);
“employment-relat-
see
only prohibited
structive
also Estate
which
Harris,
(punching
at
ed”
action. Id. at
E. Construc structive is not own its cause Whether Discharge action, tive Instruction Misstated the but must be asserted under a com Law. next address the district court’s framework, We mon or statutory law such as discharge. instruction on constructive Balmer, Rights Civil Iowa Act. See discharge “Constructive exists when 642 (outlining N.W.2d at that constructive employer deliberately employ makes an discharge can form wrongful be a dis working ee’s so conditions intolerable charge or asserted allowing under statute employee involuntary is forced into an such, As recovery). alleged it can either resignation.” Van Meter Indus. Mason (“The under a discrimination claim em Comm’n, City Rights Human N.W.2d my ployer working conditions intol made (Iowa 2004) (quoting Judi First discriminating erable on the basis an Dep’t cial Corr. Iowa Dist. Servs. v. characteristic.”), or unfair as an adverse Comm’n, Rights Civil (“The theory action under retaliation em (Iowa 1982)). policy behind construc ployer against making my retaliated me tive discharge simple: an intolerable.”). working conditions As is the to accomplish “should not be able indirect here, discharge, case like “[c]onstructive ly 1 Bar prohibits directly.” what the law any discharge, employ other is an adverse ah, bara T. Employment et Lindemann an support ment action will action for (5th 2012) Discrimination Law 21-33 ed. retaliation.” v. Marion Mer unlawful West [hereinafter Lindemann]. Inc., Dow, rell F.3d In an em- attempt liability, to avoid ployer may firing from actually refrain con- HES asserts three errors employee, en- preferring instead First, discharge structive instruction. HES gage causing him or her to conduct that was error instruct the contends quit. The doctrine constructive dis- jury, really “The need not want charge employer-at- such addresses Second, ar- wrongful quit.” tempted “end runs” HES around discharge requiring gues by inserting other claims court the district erred employer-initiated of em- subjective terminations standard into the definition *36 ployment. Third, discharge. constructive HES as- refusal to signs error to district court’s Steel, Hawkeye Balmer v. 604 N.W.2d instruction will stating allow an “conditions (Iowa 2000) (quoting Anheu Turner v. ser-Busch, not be considered intolerable unless the Inc., 7 Cal.4th Cal. (en 1022, 1025 (1994) a Rptr.2d employer given has been reasonable P.2d banc)). allege problem.” Employees often discrimina- resolve the chance to employee’s posi person reasonable Employer need not want
1. resign to compelled tion have been there was would conclude quit. to We employee reasonably be employee instruction whether an court’s district error in the no possibility no that an need there lieved was “[t]he principle on the 511. quit.” respond fairly. to In Id. at employee employer would really not want Industries, quit her is not felt Jane Sires issue thus how but “The Meter Van being person posi Industries after his job reasonable Meter whether a with Van “relegat promotion way.” Reih pаssed for a tion felt the same over would have Foerstner, the business operations side ed to 375 N.W.2d mann v. likelihood 1985). no reasonable (Iowa there was where position” manager into a of advancement “[W]orking must be un conditions at 511. sex. 675 N.W.2d her because amount to ‘con usually ‘aggravated’ or a think not Van Me she did Sires conceded the situation will be pattern’ before tinuous quit.” “really her wanted ter Industries Indus., Meter intolerable.” Van deemed stated, 512. Id. at We Haberer, (quoting at 511 675 N.W.2d undisputed that VMI Although may it be Haberer, police a offi N.W.2d job, this fact stay on the Sires to wanted paid, resigned placed after he cer was a finding preclude a does eighteen-month suspension followed deliberately rendered Sires’ company suspension pending thirty-day unpaid that a so intolerable working conditions investigation against criminal him. position employee Sires’ reasonable the officer returned 573. When resign. would reassigned to duty, he office work. was resig- employee’s “that the enough It is Id. wages receiving notice his Id. After conse- reasonably nation foreseeable was unpaid support, garnished child working insufferable condi- quence held, as a matter resigned. officer Id. We Id. employer.” We created tions law, discharge oc no constructive had finding court’s there the district reversed reassignment 578. Haberer’s curred. evidence Sires was not substantial
was
“(1)
change
to office
work
discharged. Id. at 513. Pur-
constructively
(2)
or
grade,
inconsistent
outside the
Industries,
Meter
suant
Van
(3) a
scope
job description,
of his
decrease
correctly
instructed the
do,
(4) impossible prestige,
pay
really
quit
employee
need not
want
(5)
‘difficulty’
anything beyond a mere
be
”
discharge.
to claim constructive
‘experience.’
lack of
Id. at
cause
577.
Objective
standard
constructive
noted,
We
because
discharge.
next asserts error
HES
cases,
employee
cannot
Under the
discharge
instruction
constructive
sue,” claiming he or
simply “quit and
jury to consider i
wrongly directed the
constructively discharged. The
she was
stat-
subjective standard. The instruction
resignation
giving
conditions
rise to
ed,
that she was
“The
must show
extraordinary
sufficiently
must be
or retalia-
subjected
sexual harassment
the normal moti-
egregious to overcome
no
tion
her believe there
made
was.
[that]
diligent,
competent,
of a
and rea-
vation
chance for
treatment at Homeland.”
fair
job
remain on the
employee to
sonable
added.)
(Emphasis
We
should
conclude
serve his or
livelihood
earn
said,
reasonably
“made
believe.”
her
employer..,.
her
frustrations,
job
its
Every
...
has
dis
test
for constructive
disappointments;
challenges,
...
charge
objective, evaluating whether a
*37
'
inhere
work.
working
[An
these
nature
The
adverse
conditions must
guaranteed working
not]
employee
unusually “aggravated”
be
to
amount
(cid:127)
environment free
stress.
a “continuous pattern” before the situa-
tion will be deemed
A single,
intolerable.
(alteration
original) (quot-
Id. at 575-76
trivial or
isolated act is insufficient
Turner,
ing
Cal.Rptr.2d
876 P.2d
-
support
discharge
constructive
claim.
a.
1026-27).
discharge
The
on
instructions
constructive
first paragraph
of the constructive
mentioned the standard of “reasonable be
discharge instruction'
focused
whether
lief’ or “reasonable
no
employee”
less than
the conditions
so
were “intolerable
that the
addition,
five times. In
the sentence imme
reasonably
employee
to quit.”
feels forced
diately following
offending
statement
implied
But
paragraph
second
in the‘marshaling instruction clarified the
equated
conditions
“intolerable”
em
standard,
objective
elaborating that
ployee’s subjective belief
“no
there was'
employee
“reasonably
must
believe” there
for fair
chance
treatment at Homeland.”
is no
fair
possibility of
Reading
treatment.
not
This was
a correct statement of law.
together
instructions
“leads to
in
Indus.,
See
Meter
tion deemed problem.” 675 N.W.2d Sires only reasonable alternative. reported to her superiors one of and to the resig- giving The conditions rise resign- director human resources before extraordinary nation must sufficiently that she felt she reached [the] “‘had ing egregious to normal highest going overcome the level be allowed [she] competent, diligent go’ motivation of a considering resign- and that she was (alterations ing.” original). reasonable to remain on the at 508 “wait,” job earn superior a livelihood and to her to serve his Her asked employer. her told human resources director her *38 by the fact was re- A with no demonstrated Sires passed week “hang there.” Id. phone ferred the individual who made the Id. then received response. Sires discriminatory promotion decision to given “vague reas- she was call which of her grievance. seek resolution This if the indi- and informed that surance[s]” individual, assuring rather than Sires promotion decision who made vidual prompt remedial appropriate again, would still it to over he “had do taken, her action would be informed her.” employee] over promote male [the again he would make the same decision later, days and Van resigned Id. two Sires if he had it to do over and reaffirmed resignation accepted her Meter Industries op- that the saw future in company her Id. The commission found protest. without erations. constructively dis- had been that Sires The court re-
charged. (citation omitted). Id. at 509. district dem- Id. Because Sires versed, believing given had “Sires not VMI employer a reasonable belief her onstrated problem ‘any opportunity to work on the problem, not conclud- resolve the we would ” quit,’ among ed, reasons.15 she other before Id. at 510. specific cir- say cannot under the [W]e particular of this case that cumstances review, noting that began by On we precipitously. she acted A review the intoler- not be “conditions will considered this not evidence shows case is one employer given a able unless has been not have suffi- company where the did problem.” chance to reasonable resolve rectify wrong.... cient its time tempered at 511. then this state- Id. We Rather, presents a situation this case hand, “On ment: the other given op- company, where when stay reasonably not if need he she portunity, perpetuate chose to its dis- employ- no possibility believes there is practices. criminatory respond fairly.” Examining er will Id. claim, discharge ob- constructive we Sires’ gave she Industries
served
Van Meter
supported
by citing
our decision
We
remedy
opportunity
reasonable
dis-
precedent
precedent
Iowa
from the
Although
at 513.
she wait-
crimination. Id.
Eighth
(citing
Circuit. See id. at
only one month before
Sires
quitting,
ed
Co.,
Breeding
Gallagher
Arthur J.
&
employer
had a
belief
reasonable
her
(8th
1999), abrogated
Cir.
F.3d
problem:
resolve
part
grounds by Torgerson
on other
Rochester,
pro- City
In
F.3d
Meyers’
the weeks between
2011);
resignation
compa-
Dep’t
motion and Sires’
Judicial Dist.
First
investigate
Servs.,
only
took no action to
N.W.2d at
First
ny
Corr.
gave
Department
it
no indication
District
Correc-
complaints,
Sires’
Judicial
Services,
inquiry.
recovery
on a
intended to conduct an
tional
We denied
discharge
company’s
disability
race and
constructive
indifference was further
suggested
give
company
“claim[ed]
15. It has been
our decision in Van
Sires failed to
adequate
griev-
precedential
opportunity
her
Meter
was not
to address
Industries
However,
rely
point.
recover
ances and
on the constructive
whether Sires could
so cannot
discharge
giving
Id. at 513. We addressed
without
a “reasonable
doctrine.”
claim,
opportunity
spending
page on
problem”
resolve the
was a
almost a full
Id.;
Ackelson,
fighting
the dis-
issue.
discussion.
see also
That was
basis
("We
depart
trict court’s reversal of the commission's deci-
at 688
are slow
from stare
Indus.,
cogent
only
most
sion. See
N.W.2d at
decisis
do so under the
Van Meter
circumstances.”).
recognized
510. We
the defendant
*39
department
Indeed,
claim when the
Id.
charged.”
corrections
“passivity
the face
restricting
an
working
order
an African- of
alleged
issued
conditions
to be intoler-
American blind counselor’s access to the
able is often inconsistent with
allega-
security
due to a
risk.
jail
315 N.W.2d
tion.” Lindale
Corp.,
Tokheim
145 F.3d
employee quit
day
The
85.
one
later. Id.
(7th
1998).
955
Cir.
But
an
“[i]f
em-
employee
held the
“was precipitous;
We
ployee quits
reasonably
because she
be-
she overreacted.” Id.
89. She “failed to
there is no
treatment,
lieves
for fair
chance
a good
make
faith effort
to determine
there has been a
discharge.”
constructive
whether the restriction from
jail
would Kimzey,
manent. Id. Her
resignation
“immediate
supervisor.
Management
Id. at 571.
told
deprived
employer]
...
oppor
[the
they
her
were
problem
aware of the
but
tunity
investigate
remedy
the situa
took no action to
investigate
follow up
Id.;
Haberer,
see
tion.”
also
560
complaint.
on the
Id. Even after Kimzey
recovery
(denying
part
577
based
resigned
supervisor’s
because of her
con-
employee’s
intemperate”
“rash and
act of
conduct,
manager
tinued
her
“did not indi-
Gen.,
resigning);
Johnson Dollar
cf.
investigate
he
cate that
her com-
(N.D.
2012)
F.Supp.2d
n.6
Iowa
plaints
any
required
or take
action
other
(“[T]he
Supreme
Iowa
Court has observed
open
policy.”
Wal-Mart’s
door
Id. at
that ‘conditions
not
in
will
be considered
Eighth
held
The
Circuit
rea-
“[a]
tolerable
as to constitute
[so
constructive
jury could find that the continuing
sonable
discharge]
employer
been
unless
has
management’s
harassment
indiffer-
given a
chance
reasonable
to resolve the
Kimzey’s working
ence rendered
gave
condi-
problem,’ and Johnson
Dollar General
tions intolerable
her to
opportunity
quit.”
and Williams no such
before
and forced
(alteration
(citation
resigning.”
Id. at
It
original)
highlighted the
574-75.
evidence
omitted)
Indus.,
(quoting Van Meter
675 that
Kimzey
members Wal-Mart knew
511)), aff'd,
harassed,
N.W.2d at
Fed.Appx.
being
“generally ignored
but
(8th
2013).
Cir.
complaints.”
those
Id. at 574. Because
Kimzey
a reasonable
demonstrated
belief
Eighth
has
Circuit
held that
no
there was
chance of fair treatment at
discharge,
demonstrate
constructive
an
Wal-Mart,
Eighth
found no
Circuit
employee must show
a “reasonable
submitting
error in
the constructive dis-
person
working
would find the
conditions
575;
jury.
claim to
Id. at
charge
see
intolerable.”
v. Taco
Phillips
Corp.,
Bell
Cty.
also
v. Lee
Sch. Dist.
Sanders
No.
(8th
156 F.3d
Cir.
“Such
(8th
2012)
(finding
F.3d
Cir.
intolerability
judged by
...
an objective
discriminatory
discharge
standard,
constructive
plaintiffs subjective
feel-
employee
supported
claim
when
reason-
ings.”
reasonably,
Id. “To act
аn employee
ably
no
for fair
an
believed
chance
treatment
obligation
has
assume the worst
respond because
failed to
re-
jump
quick-
not to
conclusions
too
Bakeries, Inc.,
peated requests
information
ly.” Tidwell v.
about
Meyer’s
(8th
1996). Thus,
reassignment);
v. Simmons
F.3d
Cir.
Henderson
“[a]n
Foods, Inc.,
quits
who
without
giving [the]
F.3d
2000) (affirming
discharge
chance to work out
constructive
reasonable
problem
employee “essentially
has not
dis-
claim
constructively
been
when
left
showed
prior complaint
her
ment because
other
choice
than
termination
with no
if
for fair treatment
fail-
employer’s
“had no chance
employment”
she
of her
due
knowledge
respond
again
about harassment.”
investigate
complained
ure
she
harassment).
obligation
employee’s
“[p]art
But
held,
reasonable,”
the court
“is
to be
contrast, in
Des Moines
Alvarez v.
By
worst, and
not to
obligation
assume
Inc.,
Eighth Circuit held
Supply,
Bolt
*40
fast.” Id.
conclusions too
jump
to
to
not
granted sum-
properly
the
court
district
Tire
Rub-
Goodyear
&
(quoting Smith v.
on a constructive dis-
mary judgment
(8th
1990)).
467,
Co.,
failed to
Cir.
employee
895 F.2d
ber
charge claim when
retaliatory harass-
employer
Thus,
complaint
not excuse
notify
prior
the
“did
her
(8th
410, 418
Cir.
626 F.3d
notifying
ment.
DMB
least
Alvarez
employer of
notified her
Alvarez
Veronica
to see how
misconduct
continued
about the
her co-
conduct
sexual
inappropriate
respond.” Id.
company
the
in-
employer
Her
413-14.
Id. at
worker.
held,
similarly
unless
Other cases have
the
suspended
claims and
vestigated the
a reasonable
employee
the
demonstrates
co-
Id. at 415. Other
harassing coworker.
treatment,
for fair
is no chance
belief there
in retal-
began to harass her
then
workers
a chance
give
employer
the
or she must
he
However, Al-
complaint.
her
iation for
to retalia-
resigning due
respond
to
before
employer about
notify
to
failed
varez
Phillips, 156 F.3d
tory conduct.16See
she
harassment before
postsuspension
construc-
(determining
concluded
Eighth Circuit
resigned. Id. The
manager
tively discharged when
retaliated
employer “no rea-
her
given
Alvarez had
“nasty”
to
by speaking
her
against her
prob-
remedy
to
opportunity
sonable
give Taco Bell
“fail[ed]
tone
she
because
she
argued
at 419. Alvarez
lem.” Id.
it
to demonstrate that
opportunity
fair
require-
a
from the notice
excused
should be
Discharge:
An-
An
giving
Constructive
suggested
It has been
Affirmative
1035,
(2000)
swer,
L. Rev.
problem
85 Iowa
to resolve
a reasonable chance
(“The
encourage
Faragher-
VII is
transplant”
purpose
of Tifie
"is another effort
However,
policies, promote
over
concilia-
this assertion
anti-harassment
defense.
Ellerth
harassment.”).
tion,
princi-
Faragher-Ellerth
has
These
prevent
defense
looks that the
apply to
instances
already
held to
certain
both
doctrine
con-
ples
been
are evident in
discharge. See
State Police
discharge
Faragher-Ellerth
Pa.
of constructive
and the
structive
2342,
129, 141,
Goldsmith,
Suders,
124 S.Ct.
Supreme
542 U.S.
See Shari M.
The
defense.
(2004)
Question,
(stating absent
Wrong
159 L.Ed.2d
Problem:
Court’s Suders
action,”
defense
"tangible employment
Determining
Wrong
Facts
Whether Construc-
supervi
employer whose
"is
Tangible Employment
available to
Ac-
Discharge Is a
tive
tion,
resulting
charged
harassment”
sors
Emp. L.
Pa.
Lab. &
U.
J.
discharge)';
at 150-
see
(2004)
also id.
employee’s
constructive
("By emphasizing the
obli-
n.10,
(noting
at 2356 & n.10
51 &
124 S.Ct.
duty
employer’s
gation
to seek redress and
analyzing
Eighth
other caselaw
harm,
Circuit and
approach
the dominant
to avoid
resign
"employee’s decision
whether
discharge goes
to the heart
constructive
specifi
circumstances”
reasonable under the
Ellerth/Faragher
pur-
motivations and
Court’s
giv
employer was
cally consider whether the
pose.”).
(first
respond”
quoting Su
en "a chance to
harm, no
could have avoided
If the victim
(3d
Easton,
Cir.
325 F.3d
ders v.
against
em-
liability should be found
2003);
LodgeNet,
quoting
and then
Jaros v.
care, and
ployer who had taken reasonable
(8th
Cir.
Corp.,
294 F.3d
Entm’t
reasonably
damages
have been mit-
could
if
2002))).
against
liable
igated no
award
plaintiff for what her own
un-
should reward
Principles of
and avoidance
deterrence
efforts could have avoided.
liability.
dergird
See
theories of
at 2292.
Faragher,
118 S.Ct.
524 U.S.
Kagay, Applying
Ellerth
Sara
Defense
situation”);
negative
had remedied the,
outcomes—fear that the employ-
Coffman
Marine, L.P.,
141 F.3d
Tracker
job,
believed,
ee will
her
lose
not be
1998) (holding employee
‘simply
help
because will not
[her] situa-
discharged
not constructively
when
(alterations in
tion[].’”
original) (quoting
complained
she
but
about retaliation
failed
Sex,
Theresa,
Beiner,
M.
Science and So-
give the
employer’s
solving
method
Knowledge:
cial
Implications
So-
chance); Tidwell,
problem
F.3d at
Science
cial
Research on Imputing Liabil-
(concluding employee
quit
day
who
ity to Employers
Harassment,
Sexual
seeing allegedly retaliatory
after
schedule
Mary
&
J.
7 Wm.
L.
Women &
change
constructively discharged
be-
(2001))).
countervailing policy
But
consid-
he
to give employer
op-
cause
failed
“an
us
placed
erations counsel
burden
portunity
explain the situation or reme-
employee is
preeminent
A
reasonable.
it”).
recognizes
dy
Such-
rule
that “a
on employment
explains,
treatise
law
*41
waiting period
inversely
reasonable
re-
generally require
Courts
that the em-
severity
situation,”
to
lated
the
Wat-
give higher
must
ployee
levels of man-
Labs., Inc.,
v.
son Heartland Health
790
agement
opportunity
to correct an
(8th
856,
2015),
F.3d
864
Cir.
and there
adverse situation
quitting
before
and
of
may be cases
severe
or
harassment
claiming
discharge.
constructive
The evi-
it is
for
when
reasonable
retaliation
of
purpose
dent
the requirement
is to
employee
resign immediately.
to
It also
employer
entity—as
op-
as an
allow
acknowledges
may
times
be
when
there
to,
(and
posed
example,
for
an individual
complaint
can
demonstrate
employee
aberrational)
perhaps
supervisor—to re-
fruitless,
pre-
would be
such as when
However,
problem.
dress the
to avoid a
through
scribed method of recourse is
finding of
discharge,
constructive
alleged
employer'
or when
harasser
has
employer’s response
adequate;
must
instances,
respond to
previous
failed
employee
prolonged
need not suffer
See,
Indus.,
e.g.,
harassment.
Van Meter
or
harassment
discrimination.
(“Sires
513
referred to
675
(footnotes
Lindemann, at 21-44 to 21-45
made the
individual who
discriminato-
omitted). Moreover, an
can
employee
es
ry promotion decision
seek
resolution
coming
cape
requirement
forward
grievance”).
of her
by alleging there
been no
would have
policies are
“[A]ntidiscrimination
better
for
“chance
fair treatment” in
face of a
when
employee
served
complaint. Kimzey,
when the is faced with what he Expert F. Whether Testi anticipates job an intolerable will be mony Fitzgerald of Dr. Should Have environment, generally hold that courts Been Excluded. the issue is like Because employee quit precipi- should remand, ly to arise we will discuss rather remain to tously, but should see whether the district court abused its dis whether those in fact do fears material- cretion allowing testimony of Dr. Moreover, ize. cannot an sim- 5,702 Fitzgerald. Iowa Rule of Evidence ply speculate intolerable conditions (2014)18provides, develop, impending will dis- occur, charge management or that will technical, scientific, If or special- other ignore problem. will knowledge ized will assist the trier of Lindemann, (footnotes fact to at 21-41 or to understand evidence omitted). issue, qual- determine fact in a witness skill, an expert knowledge, ified as to establish as a mat failed
Haskenhoff experience, training, may education ter of that it law been fruitless testify form of opinion thereto give management more HES time or otherwise. contrary, respond. To HES was active ly engaged responding complaint to her expert testimony HES argues by Dr. Fitz quit. jury
when she
It
gerald should not have been admitted be
decide,
instructions,
proper
whether
province
cause
“invade[s]'
rather,
jumped
gun,
she
con
court to
applicable
determine the
law and
structively discharged. A reasonable em
instruct the
as to
law.” In re
ployee
obligation
has “an
not to assume
*43
Palmer,
(Iowa
Det.
N.W.2d
of
not
jump
worst and
to conclusions 2005) (quoting
County
Torres
Oak
of
Brenneman,
quickly.”
too
Instruction No. omitted re- with also those HES standards.” quested by required Fitzgerald’s testimony Dr. HES and under our about what a precedent stating give must do. Haskenhoff company reasonable testimony chance to Fitzgerald’s pro- “a reasonable re- states that Dr. qualified expert by an A courts consider "whether had an witness who is as an skill, knowledge, training, experience, or opportunity attempted to or to resolve the may testify education in the form of an problem” evaluating as a when con- factor expert’s opinion or scienti- otherwise if discharge). structive technical, fic, specialized or other knowl- edge help will fact to understand trier 18. Iowa Rule of Evidence 5.702 has since the evidence or to a fact in issue. determine reads, been amended and now (2017). Iowa R. Evid. 5.702 harassing why they may on be caused helpful insight based reasonable vided not into testified about whether industry did delve behavior. She standards and upon law. instruction common victims harassment. Dr, about a “reason- She also testified what Fitzgerald’s tes- challenge to HES’s do sexual company prevent able” should linkage erroneous timony focused on according to resources harassment human we are revers- Because instructions. and whether HES conformed standards trial on the ing ordering a new based close to the errors, those standards. She skirted admissibility instructional prohibiting testimony legal line conclu- in a somewhat her be differ- testimony will sions: We review ent context remand. testimony. expert A,
general parameters be- ... a distinction [T]here’s I should make here—be- tween—that not opinion objectiona “An policy company’s tween violation an just it embraces ultimate ble because law. violation (2017). R. Evid. 5.704 We issue.” Iowa they’re not—although there’s Because admissibility of on the a “liberal view favor great overlap, they’re not al- Ranes, deal expert testimony.” 778 N.W.2d ways exactly the there are same. So should exclud opinion Whether poli- company’s legal things that can violate a on the basis that it is couched ed cy not violate law.... “depends on ‘whether the terms terms separate, by the have a dis witness used meaning in specialized the law tinct and Q. profes- Okay. “The standard present from that in the vernacu different says investigation,” practice sional ” Palmer,
lar.’ re Det. competent out you steps set and then Torres, F.2d If (quoting to con- investigator in order would take so, should be excluded. testimony investigation any into this duct real or as example, questions For whether a such steps? matter. And are those other what negligent negligent not defendant Well, probably A. I should have said improper “[ejxperts are because must, because it’s “should” instead opinions legal Iowa state standards.” anything. But the com- the law (1988). committee [5.]704 R. Evid. cmt. mon recommendation.... practice The district court allowed Dr. finding Fitzgerald’s testimony, she was Q. your testimony pur- And doesn’t *44 subjects on the expert “qualified as an jurors port to tell the the law is what by Iowa Rule presented, provided harassment, proscribing sex it? does A. Fitzgerald Dr. testified 5.702.” Evidence No, to speak legal I issues. do (1) speak reasons: she was hired for two particular that Testimony conduct violated evaluate she
with Haskenhoff and whether clearly the ICRA would be an inadmissible in displayed typical victim behavior re legal conclusion. (2) harassment, and examine sponse on Expert testimony the standard policies procedures on sexual HES’s and practice generally care or standard they met opine harassment and whether Alca permitted negligence See human actions. accepted in the field of standards la, (collecting 709 cases Haskenhoff suf N.W.2d opined She resources. of an stan requiring employer’s major depressive evidence fered disorder disorder, and its to recover dard care breach posttraumatic stress described theory); negligent-training under a Oswald jury, for the stated these conditions LeGrand, (Iowa CADY, v. N.W.2d (concurring Justice in part Chief 1990) (noting professional negli that in part). a and.dissenting action, gence “[o]rdinarily, evidence I concur résult in the reached in the applicable standard care—and its opinion by Justice Waterman. I authored by expert”); breach—must be furnished agree jury verdict 'must be reversed Richter, v. Brandt 474 and a granted. new I trial must write (Iowa 1968) (allowing testimony of farm I separately agree do not with because safety expert discussing precedent re result reasoning all the issues ad- jecting argument testimony such improp opinion dressed Justice Water- care). erly altered standard of But man. As to those issues with which I dis- expert testimony as to-a legal conclusion is agree, I in the join opinion Justice negligence in an inadmissible ac ordinary Appel.- See, e.g., Cmty. tion. Bell v. Ambulance (Iowa Agency, Serv. 579 N.W.2d Negligence I. Direct Claim. 1998) (affirming opinion exclusion testi opinions two this case both hold
mony of law enforcement trainer that am plaintiff may pursue a hostile-work- highly bulance driver’s “actions were dan against environment claim likely gerous and to cause injury”); Terrell Rights under the Civil Act Iowa based (Iowa Reinecker, 482 N.W.2d supervisor a legal theo harassment 1992) (holding it was reversible error ry liability or negli either 'vicarious investigating police officer to testify allow gence. I The two opinions concur. also hold legal conclusion that “failed an assert the employer cannot affirmative yield right-of-way”). have not We defense for recognized liability vicarious previously where the line is decided drawn Raton, Faragher City claims in Boca case. hostile-work-environment We 2292-93, 775, 807-08, U.S. conclude the district court did abuse (1998), Burlington 141 L.Ed.2d Fitzgerald’s in allowing its discretion Dr. Industries, Ellerth, Inc. v. U.S. testimony on the record at the first made 764-65, 2270, 141 118 S.Ct. L.Ed.2d trial. (1998), defending negligence when this, dispute, I action. To also concur. The Disposition.
IY. however, is whether the district court reasons, For those we reverse failing dis- erred in to instruct ruling denying trict court’s motion HES’s prove must trial, for vacate judgments new prompt appropriate failed take re plaintiff, and remand the case action to end the new medial harassment. I trial this opinion. consistent in failing court erred conclude district 'its integrate concept into marshal DISTRICT COURT RE- JUDGMENT ing instruction. AND CASE REMANDED VERSED general It is rule of law an em *45 FOR TRIAL. NEW ployer negligently creating is or hable JJ., Zager, join continuing Mansfield and this work a hostile environment. See C.J., opinion. Cady, Univ., U.S. -, files a in concurrence Vance v. Ball State J., -—, 2434, 2452, 186 in part part. Appel, a dissent files 133 S.Ct. L.Ed.2d 565 (2013). law, separate part concurrence in and dissent a This is correct statement Hecht, part JJ., Wiggins in too to as a mar general which but far used C.J., join Cady, joins in part. shaling employer for a instruction claim part” not only “played a and “need harassment have negligence on sexual based reason.” N.W.2d continuing only a have been the supervisor. Negligence a (Iowa 2009). Yet, only this was done required to be is hostile work environment standard, jury not applying aid the the context whether analyzed within concept to eliminate the central failed take reasonable not the protected activity be a standard that the period a reasonable action within remedial motivating employer’s in the deci factor Alum-Line, Inc., 710 Boyle of time. v. motivating sion. See id. A factor is one (Iowa 2006). This N.W.2d decision, compel helped and the claim based of HaskenhofPs essence only to “played part” language a exists plaintiff supervisor When the harassment. clarify motivating factor need not that the claim, es- liability asserts a vicarious id.; only see also Hasan be the factor. See an affirma- presented is as analysis sential Labor, Dep’t v. U.S. F.3d Foods, Inc. v. tive Farmland defense. See 2005) (“A factor is a motivating Cir. Comm’n, Rights Dubuque Human factor in the deci weighs defendant’s (Iowa 2003). When n.2 complained of—in sion to take the action claim, negligence a asserts words, present is a other it consideration care analysis within reasonable comes favors, him pushes mind that to his City negligence. Lynch v. standard of a, toward, necessarily It is the action. (Iowa Moines, Des 454 N.W.2d the, Its reason that he takes the action. that a The must establish impor precise weight in his decision is not knew have or should reasonable (Citations omitted.)). Therefore, I tant.” known the harassment and failed opinion Appel Justice concur stop take reasonable action within factor adopt motivating stan causation of time. The instruc- period reasonable However, I find that the dard. totally tion in to inform the this case failed capture in this case instruction failed result, analysis. jury of As a this essential this standard. materially I would the instruction conclude misstated the the detriment law Retaliatory Discharge: III. Adverse employer. Employment Action. opinions agree employ Both an adverse Retaliatory Discharge: II. Causation. might that “well ment action is one disagree opinions proper two on the from mak ‘dissuaded reasonable worker retaliatory dis- causation standard ing supporting charge of discrimina charge. I agree causation standard un- ” Ry. N. & Fe Burlington tion.’ Santa Rights der the Act is the same Iowa Civil 53, 68, White, 548 U.S. for discrimination claims Iowa Code (2006) (quoting Ro L.Ed.2d 345 216.6(l)(a) (2011) section as it for retali- Gonzales, 1211, 1219 chan v. 438 F.3d 216.11(2). ation claims I also under section (D.C. 2006)). opinions agree Both also “a agree motivating fac- standard defining district court erred “ad Nevertheless, in- tor.” the district court including verse action” ex only struction modified standard amples of actions that would be adverse require “played discrimination matter of I of these law. concur both part.” in the change This standard was instructs, Burlington As Northern issues. justified. dictates, as reason action adverse Rose, Inc., Raining “depend[s] particular we circum upon DeBoom *46 69, at 2415. must stances.” 548 explained motivating that a factor U.S. therefore, dispute, is ployer’s whether the er- motivation for the constructive It was ror harmless. not. is discharge irrelevant. id. See at 512. In a claim, retaliatory discharge employee The court jury instructed the that one must show the constructively example of an action adverse is a construc discharged the employee “because” the discharge. A discharge tive constructive employee engaged in a protected activity. employer deliberately occurs “when the 216.11(2). § Iowa Code These two uses employee’s working makes an conditions related, discharge constructive are but dis- employee so intolerable that the is forced tinct. an involuntary resignation.” into Meter Van City Rights In dus. v. Mason Human Here, the jury was instructed Hasken- Comm’n, (Iowa 2004) N.W.2d hoff subjected must show “she was to sex- (quoting Dep’t First Judicial Dist. Corr. retaliation[,] ual harassment or which[] Comm’n, Rights v. Iowa Servs. Civil made her believe no there was chance for (Iowa 1982)). recognize N.W.2d We fair treatment at (Emphasis Homeland.” discharge discourage constructive “em added.) possible It jury is was con- ‘end runs’ ployers’ around law”—em by fused these alternatives. Under these for ployers they by instructions, know cannot retaliate a jury find could the sexual mally terminating employee, they so was so pervasive harassment severe and may attempt quit. to force the that Haskenhoff had quit. no choice but to Steel, Hawkeye Balmer v. But, Haskenhoff not did advance construc- (Iowa 2000). discharge Whether discharge tive on based an extreme case compelled, formal or if it was motivated hostile work environment. She used con- employee’s engaging protected in a discharge example structive of retali- activity, prohibited it is still retaliation. if jury appropriately ation. Even found discharge constructive based the severi- But discharge constructive can be a also environment, ty of the hostile work it does claim, separate recognized in extreme against not mean Homeland retaliated cases hostile work In this environments. reporting Haskenhoff for the harassment. claim, type discharge constructive Therefore, instruction erroneous employee must show the environment harmless, action was not adverse so bad he or had no quit. she choice but to Homeland entitled reversal and new Suders, Pa. State See Police 542 U.S. trial. 129, 147-48, 124 S.Ct. (2004) (“A L.Ed.2d 204 hostile-environ- Discharge Constructive Instruc- IY. discharge ment constructive claim entails tion. something more: A who advances compound working opinions such claim must show agree Both the district conditions so intolerable that a reasonable court err in constructive did dis- person felt compelled charge by explaining would have re- instruction that an sign.”). may An employee prove want to does need want the em- discharge quit. constructive in a ployee opinions agree hostile-work- Both also “because, using subjec- claim as a court general environment the district erred rule, employees pay discharge entitled back the constructive tive standard only they when have been con- I actually or instruction. concur on both these is- Meter, Meter, structively discharged.” 511- Van 675 sues. Van 675 N.W.2d at See N.W.2d at In a dispute 510-11. hostile-environ- 12. The is whether the district claim, discharge ment in refusing constructive the em- court erred to instruct the *47 to stop action it a employer the sonable within reason- employee give the must Second, in for problem period time. a claim chance to able a reasonable resolve the retaliatory must may working discharge, employee the it find the conditions before protect- in a employee employee’s the show engaging were so intolerable a reasonable in activity motivating I a factor the resignation. have been forced into ed would in an em- employer’s the not err decision take adverse conclude district court did it give ployment adverse-employment action. An refusing because instruction not is one that would have deterred be a correct statement action would employee com- filing a reasonable from law. ordinarily are not adverse plaint. Actions concept discharge Constructive is a law, on the depend as matter but times, At it not be reasonableness. would taking An such employer circumstances. without employee quit reasonable an really employ- not the an action need want employer resolve giving a chance to quit, but the employee’s ee decision But, id. problem. See at other 511. A con- quit objectively reasonable. must times, it not to re- would be reasonable discharge may occur reason- structive if employee to quire an remain in intolerable con- employee working able would find the working conditions. id. Evidence indi- See intolerable, employee if that even ditions employees report not to cates often choose give employer opportunity did not in the the time workplace discrimination problem. to correct the See Curiae it occurs. Brief of Amici jury in this Because instructions Legal NAACP Defense Educational & accurately not state the above Fund, case did Inc. & The National Law Women’s legal principles, I in Petitioner, part concur in Support Center Green Brennan, opinion the result Jus- -, authored U.S. I (No. 14-613), remand for retrial (2016) tice Waterman. 195 L.Ed.2d (com- I part on both counts. in dissent at *14-15 & nn.10-11 WL studies). join part opinion in opinion If au- piling unreported discrimi- Appel thored Justice then turns intoler- workplace nation reasons able, expressed employee reasonably be above. no should merely to expected job to remain on the APPEL, (concurring part Justice in give employer chance to fix it. Conse- dissenting part). in opinion I concur quently, Justice that the Appel district court did err respectfully I part concur in and dissent refusing to instruct that an em- opinion. from the part majority/plurality to fix ployer must have a time reasonable view, my only related to instruction problem. material action in connection with adverse I
plaintiffs retaliation claim is flawed. find Conclusion. Y. properly court instructed the district jury on all other issues in this case. First, employee may bring a direct- action negligence against an I. Factual and Procedural Back- supervisor’s on a based harassment. ground. of an employer does the benefit Solutions, defending Energy such Homeland LLC affirmative defense when however, (HES) must, facility processing show an ethanol claim. The Iowa, Lawler, opened February knew or known where should have began Tina Haskenhoff work at of the harassment failed take rea- HES *48 manager immediately upon upset its a’lab Haskenhoff who that told coworker opening. fucking “a Howes was' asshole.” Hasken- hoff left work in the day middle and supervi- Howes Kevin was Haskenhoffs email to complaining sent an Howes about Howes, along sor. with several Hasken- comment. his coworkers, repeatedly hoffs made de- August On Haskenhoff filed sexual- to meaning sexual comments Haskenhoff complaint against harassment with Howes in engaged and other offensive behavior. meetings Fréin. Several between occurred This frequently included Howes comment- participants Finally, thereafter. on Au- ing on in breasts front of Haskenhoffs gust Haskenhoff to was asked meet and other employ- HES Haskenhoff with Wendland, with Finke—the CFO David ees. head of human and resources—and Howes. In in- November Haskenhoff meeting, this At sexual- Haskenhoffs formed Howes that she would be absent complaint harassment was discussed. Addi- meeting for appointment. from a a medical tionally, presented' Howes Haskenhoff with the reason for Howes asked about ninety-day “performance improvеment and, appointment upon learning that it was using vulgar for plan” language re- when mammogram, for a told Haskenhoff that to ferring walking job Howes and off the have the breast in the should exam she noted, August plan 8. The to “Failure money. parking lot order to some earn expectations/conditions adhere these week, Later that Haskenhoff Chad told disciplinary result in up will further action Kuh- Kuhlers about offensive behavior. to termination.” lers the board directors was later that the Au- Haskenhoff said after immediately reported HES. Kuhlers this gust meeting, realized HES would she president information HES’s CEO and against take no effective action and Howes to human
Walter resource Wendland complain if she that continued about manager Frein. Sarah August she be would fired. On harassment learned Haskenhoff had
Howes Haskenhoff confronted Finke and ac- him, complained about and he met with letting get'away him of Howes with cused to ask that com- drop Haskenhoff she permitting Howes harassment plaint. said that was against resigned. Howes he worried he her. Haskenhoff retaliate going also met Wendland fired. May 21, 2012, brought On Haskenhoff the complaint, Haskenhoff about stat- with charges employment discrimination at ing employees of HES were fami- “like Rights the Iowa The Civil Commission. ly.” she Haskenhoff later reported gave a release to commission Haskenhoff found behaviors Howes’s Wendland’s suit, suit bring brought after which she intimidating, and she feared the conse- court for district sexual harassment and quences if she contin- her Rights Iowa Act retaliation under the Civil complaint. agreed Haskenhoff ued (ICRA). The favor of Hask- jury found drop complaint assumption on the damages. her HES enhoff and awarded change. behavior Howes’s appeal. appealed, we retained behavior, sexually offensive howev- Relationship II. Between State er, August Finally, on continued. Rights Federal Civil Statutes. Howes Haskenhoff overheard tell another analyzing the marrying that'Haskenhoff A. Introduction. Before case, impor- money. her comment it is fiancé This substantive issues simply that overlooked our to stress that the ICRA is not seems have been tant Civil Act. Rights suggesting a knockoff Federal cases mirrors or the ICRA loosely said that the have sometimes We after Title modeled VII.19 Ti- “modeled after” mirrors ICRA was fact, both the and Title ICRA VII See, e.g., Papa Harris v. Estate *49 tle VII. of body this of preexisting drew from state Pizza, 673, John’s 679 677-78 State, 1, Pippen law. See 30 854 N.W.2d Stores, 2004); (Iowa Fareway Pecenka v. (Iowa 2014). appeared In an that in article (Iowa 2003). Inc., 800, 803 672 N.W.2d that year the Iowa Law in Review the validity only in These observations have passed, ICRA Arthur Bon- Professor sense, general materially can be the most field, legisla- leading proponent of the misleading, any provide and in case do not tion, in experience cited the in other states meaningful guidance in the resolution of support legislation. Arthur of the Earl controversy under any concrete the ICRA. Bonfield, Some Rights State Statutes: Civil First, or the modeled-after mirror theo- 1067, Proposals, 49 1082 Iowa L. Rev. & overlooks the fact ry generally that (1964). n.65 VII, ICRA, preceded well as Title were as Thus, the ICRA Title VII both mir- twenty than by more state statutes. See preexisting rored and were modeled after Catania, Employment Dis- Andrea State general state law in the that same sense and Pendent crimination Remedies Juris- the ICRA is modeled after or mirrors fed- Access to Under Title VII: Federal diction example, For of’ eral law. the “because 777, Courts, 32 Am. L. Rev. n.24 U. 782 language in causation the ICRA Title Catania], (1983) Beginning in [hereinafter VII, of is at the of one which heart 1940s, passed rights states civil stat- litigation, in issues in this was used state many utes included features civil rights predate statutes that them.20 in Alex now embraced Title VII. Elson & Similarly, provisions retaliation state Schanfield, Regulation Leonard Local of predated civil Practices, rights laws the retaliation Discriminatory 56 Employment 431, See, (1947). provision 434 rich in the ICRA and Title VII. Yale L.J. There is a (1957); § body commentary e.g., of on these laws Rev. Code 49.60.200 state Wash. Bonfield, 20. The See, language in Arthur Title e.g., E. because-of causation The Substance Legis provi Employment discrimination American Fair VII's and retaliation Practices of 907, Employers, 61 Nw. U. L. Rev. I: lation sions is also found state antidiscrim- earlier (1967); Carter, & n.6 Elmer A. 909-10 See, Prac ination statutes. Wash. Rev. Code e.g., tical Considerations Anti-Discrimination ("The (1957) right § free 49.60.030 to be Legislation—Experience Under York New color, race, creed, because of discrimination L.Q. Discrimination, 40 Cornell Against Law origin recognized or as and national de 40, (1954); Dyson & 40 Richard B. Elizabeth right.”); clared to be a civil Bhd. Elec. Int’l Dyson, D. State Commission Enforcement Rights, Workers Local Civil Comm’n on Against Comparative A Laws Discrimination: 366, (1953) n.1 Conn. A.2d Act, 14 U. Kan. L. Rev. Analysis the Kansas (quoting Employ the 1949 Connecticut Fair (1965); Hill, Twenty Herbert Years ment Practices Act that shall be unfair "[i]t Employment Fair State Practice Commis of sions: (c) employment practice for a labor or ... Analysis A Critical with Recommenda color, race, ganization, reli because of the (1964); tions, 14 Buff. L. Rev. Robert creed, ancestry gious origin any national Meiners, G. Employment Legis Fair Practices membership individual to exclude from full n.1, lation, 62 Dick. L. Rev. & rights expel membership from its such (1957); Sutin, Arnold H. Experience any way individual or to discriminate in Employment Fair State Com Commissions: A members”). against any of its Rev. & Study, 18 Vand. L. parative (1965).f n.1 (1961); (codified 111.32(5)(b)(3) § § 1 § Wis. Stat. Morroe at Iowa Code 105A.7 (1966)).Thus, Berger, Against New York Law State Dis- the because-of causation lan- guage that Operation appeared crimination: and Administra- later in the ICRA tion, (1950) was language based Cornell L. Rev. Iowa statute predated (describing which the contents New York’s Title VII was modeled law). rights after civil case, legislation provi- the relevant other states. It are, simply wrong suggest sions the ICRA Title VII fact, because-of language matter historical modeled ICRA after or A modeled after more mirror Title VII. accurate preexisting Long, state law. Alex statement would be because-of State Anti-Discrimination Law as Model language in Title VII was modeled after Amending the Americans with Dis- *50 state precedents, including law the ICRA Act, 597, abilities 65 U. Pitt. L. Rev. 600 of 1963. (2004) (stating “Congress modeled Title ... on existing
VII state anti-disсrimina- Third, of while the the two statutes texts laws”). tion similar, are sometimes they quite are often dissimilar. There are material differences Second, the modeled-after or mirrors between in scope, the two struc- statutes theory particularly overlooks the fact that ture, Thus, and remedy. generalized preexisting rights Iowa had a civil statute on, statement that the ICRA is modeled before Title VII enacted. Iowa’s first to, similar or mirrors Title VII even from rights civil act in shortly was enacted 1883 viewpoint textual is often not true.21Fur- Court, Supreme after United States in ther, below, as will be legisla- shown appalling only decision corrected dec- history tive quite behind Title VII is often later, key ades of portion held that a plainly inapplicable any distinctive and 1871—prohibit- Federal Civil Act of Rights construction of the ICRA. of em- Instead ing persons—was by private discrimination ploying generalized and often inaccurate unconstitutional. See United States v. Har- slogan, in interpreting ICRA we must ris, 629, 601, 613, U.S. S.Ct. engage serious, provision-by-provision (1883), abrogated by L.Ed. 290 Griffin analysis, recognizing similarities when 88, 104, Breckenridge, U.S. they but appear, honoring also the differ- (1971). Then, L.Ed.2d ences. 1963, fully year prior to the of enactment VII, joined twenty-six Legislative Title states in B. Iowa Direction enacting Broadly a statute prohibiting discrimina- ICRA Be “Shall Construed employment. Purposes.” tion in That statute Meet As all judges, declared Its law- know, any yers, it unlawful “for person litigants and ICRA has many gaps discriminate ambiguities individ- which courts race, color, religion, upon uals because nation- fill called to resolve and in the origin, al or ancestry.” litigation. 1963 Iowa Acts ch. context adversarial While by Benjamin 21. The same is often published historical mistake made ments in Paris Frank- Constitution, respect lin, constitutions, with to the Iowa which hailed to be the first written some constitutions, claim is after United States modeled were not the state later and fact, In Constitution. the United States Consti- largely derivative United States Constitution. tution, every provision of its Bill of Hulsebosch, Revolutionary See Daniel J. The Rights, provisions derived from state Constitution-Making and the Wider Portfolio: 1789, espe- constitutions that existed before Revolution, World in American 47 Suffolk cially Virginia Rights Declaration (2014). U. L. 802 & Rev. n.222 Massachusetts Constitution. docu- Inc., Wash.App. statute P.3d legislature has advanced a Iowa (2013) precedent ambiguities gaps, provided (Adopting it has federal ap- protective with an instruction on how lan “impermissibly courts narrow has Specifically, legislature it. proach [Washington’s guage purposes civil construed ICRA “shall law], directed that the be con rights contrary the liberal its Iowa purposes.” broadly effectuate act.”). struction mandate 216.18(1) (2011). out § As pointed we Code rights passed A few state civil statutes no lan- comparable Pippen, there provi- to the prior ICRA also contained statute. 854 N.W.2d guage the federal directing courts to the stat- construe sions 216,18(1) an ex- section 28. Iowa Code See, Del. broadly. e.g., ute Code Ann. tit. that is the ICRA ample provision (“This (1963) chapter § shall be lib- not mirror and does after modeled erally rights to the end construed Title VII. people re- provided herein for all without better cases show that Our reasoned race, creed, color or gard origin national consequential. marked difference is textual safeguarded.”); may effectively be Wash. out number Pippen, pointed that a we (“The (1957) § provi- Rev. Code 49.60.020 con supreme courts have other state chapter of this sions shall construed in civil statutory language similar strued *51 liberally accomplishment for of the rights constitu require acts to “widest thereof.”); § 5-11- purposes W. Va. Code Emp’t (quoting Fair tional application.” 265(161) (1961) (“The provisions of this Rush-Presbyterian- v. Comm’n Practices. liberally article shall ac- be construed 712, Ctr., 41 854 Ill.App.3d St. Luke’s Med. complish objectives purposes.”); its- 596, (1976) (holding 600 a wide N.E.2d (“All (1961) § provi- Stat. 111.31 Wis. required given legisla application subchapter liberally of this shall be sions of provisions intent for remedial tive accomplishment of construed act)); Alaska see also Wondzell v. purpose.”). (Alas Prods., Inc., 584, 601 585 Wood P.2d 1979) (finding rights civil act not ka Alaska Plainly, narrow construction law, “in simply after but modeled federal legisla- ICRA would of be defiance interpreted broadly tended more broadly tive construe stat- mandate goal of to further than federal law purposes to effectuate its and would ute eradication of ... shown [as discrimination judicial recrafting amount to a of the stat- by legislature’s put intent ‘to many the] as Pippen, ute. As we court stated an Iowa ” possible’ (quot into as “teeth” the statute keep legislative “must in mind the di- 867, State, ing 583 869 P.2d McLean v. broadly interpreting rection of the Act (Alaska 1978) (citations omitted))); Mar choosing among plausible legal when alter- 97, quis City Spokane, v. 130 Wash.2d natives.” 854 at 28. (1996) (en banc) 43, (explic 922 P.2d n legislative broadly direction that we legislative itly recognizing directive con interpret the makes authori- ICRA federal Washington rights civil statute lib strue ty narrow Seattle, chooses constructions erally); Hous. Allison v. Auth. of 79, (1991) (en among, 34, options suspect. P.2d available Federal 118 38 Wash.2d 821 courts, banc) (“Title and particularly the United States [Washington differs from VII Court, Supreme in that have demonstrated a rights civil does law] Title VII tendency to provision requires contain a which liberal marked embrace a narrow rights accomplishment construction for the of its construction of federal statutes civil Holdings, generous purposes.”); plausible Lodis v. in the face of more Corbis
609
result, Congress
protection
As
has
(narrowing scope
alternatives.
under the
re
superseded
statute,
peatedly
by
ADA),
narrow in
by
overridden
statute
ADA
rights
of federal civil
terpretations
2008,
laws.
L.
Amendment Act of
Pub.
No. 110-
Supreme
important
325,112
United States
Seven
(codified as
Stat. 3553
amended at
U.S.C,
lights
Court civil
cases overridden
Con
§ 12102(3));
42
Ledbetter
Electric Co. v. Gil
gress include
General
Co.,
Goodyear
Tire & Rubber
618,
550 U.S.
bert,
401,
125, 134,
407,
97 S.Ct.
U.S.
621,
2162, 2165,
127 S.Ct.
L.Ed.2d
(1976) (holding
611
important
legislative
emerge.”).
example,
are
textual and
histo-
For
phrase
“be-
sex, race,
ry differences between the ICRA and Title
cause of’
and other classifica-
given
tions
as it
the causation
has
rise
a wide
relates to
element
number of
VII
potential
interpretations.
retaliation
See
claims.
David S.
Schwartz,
IsWhen
Sex Because
Sex?
D.
Differences Between
Structural
The Causation
Problem in Sexual
Rights
ICRA and Federal Civil
Stat
Law, 150
1697,
Harassment
U. Pa. L. Rev.
pointed
As
in Pippen,
utes.
out
there is
(2002)
(not-
[hereinafter Schwartz]
important
also
structural difference be
ing
approaches
different
to ambiguous
rights
the ICRA and
tween
various civil
terms).
no
simply
There
requirement
statutes. See 854 N.W.2d
28. The ICRA
that in construing ambiguous phrases we
contrast,'the
is unified statute.
federal
follow
should
the lead of the United States
rights regime
fragmented.
civil
is more
See
Supreme Court rather than that of anoth-
Age
in Employment
Discrimination
Act of
er
court
own judgment
state
where our
623;
§
Rights
U.S.C.
Civil
Act
us.
would lead
(Title VII);
§
2000e-2
U.S.C.
Further, many legal structures devel
American with Disabilities Act of
by
oped
Supreme
the United States
Court
Thus,
§ 12112.
U.S.C.
while the federal
statutory
are
found in the
text of Title
developed
courts have
different tests
VII
been fashioned
the Su
causes of action
different
under different
preme
policy
Court based
its
percep
statutes,
statute generally
the Iowa
calls
example,
requirement
tions. For
See,
singular,
approach.
out
unified
“pervasive
harassment
severe” in
Servs., Inc.,
e.g., Gross
FBL Fin.
order to amount to actionable discrimina
167, 176-78,
2343, 2350-51,
U.S.
129 S.Ct.
not appear
tion does
in the text of Title
(2009) (holding
L.Ed.2d 119
that Title
Bank,
VII. See Meritor Sav.
FSB v. Vin
and ADEA causation
VII
standards
son,
57, 67,
477 U.S.
2405-
S.Ct.
different). It
very
would be
difficult to
(1986). It
judicial
“adverse . Inc., Myrick Main St 73 in Title v. GTE claim is not retaliation mentioned 1999) (D. 94, (declining 98 Mass. Burlington Ry. F.Supp.2d N. v. & Santa Fe VIL 56-57, 2405, 53, Faragher-Ellerth to defense on White, apply 126 548 U.S. S.Ct. Trettco, (2006). And, v. 2408-09, grounds); state Chambers 165 345 law L.Ed.2d 910, Inc., 918 463 Mich. N.W.2d Faragher-Ellerth developed by defense (2000) involving (rejecting Faragher-Ellerth vi Supreme Court for cases law); v. Food liability Michigan of there Pollock Wetterau supervisors when carious (Mo. Grp., tangible no action Distribution S.W.3d is adverse VII, 1999) (refusing to explicit support App. Ct. add words has no textual Title Missouri, rights statute establish primarily crafted as a of the human but was result defense). Faragher-Ellerth of the a policy Court. See considerations Raton, Faragher City v. Boca 524 U.S. ambiguous In making regarding choices 804-05, 2275, 2291-92, 118 S.Ct. phrases determining whether and how Indus., (1998); Burlington L.Ed.2d legislative gaps, to All courts are free Iowa Ellerth, 765, 118 Inc. S.Ct. 524.U.S. very depart from what are often narrow 2257, 2270, 141 (1998). L.Ed.2d approaches federal law.23 cramped rejected example, Goodpaster, For we judicially developed constructs These Supreme precedent textually guided, are not but re- States Court instead United that, ICRA, contrary to the declared the majority flect the views of a United Act must be Supreme subject Court on the with Disabilities States Americans believes, strictly to demanding “interpreted If one for exam- create discrimination. qualifying workplace standard for ple, discrimination disabled.” occurrence, relatively develop- (quoting Toyota, at 10 534 U.S. at rare 691); Sutton, judicial see demanding ment of standards S.Ct. U.S. Supreme interpretation may 2149. The through construction hand, strictly interpret if to make On the other determination to seem sense. Court’s of the flies Iowa one believes discrimination is wide- statute face intractable, legislature’s the stat spread and a different result construe direction 216.180.).24 § broadly. might Sperino, Revitalizing, occur. ute See Code Geo. Iowa L. Rev. Mason at 575-77. Thus, in inter choose best order on a pretive option statutory issue under support, Because textual lack ICRA, enough simply it is cut surprising that number of courts paste into Faragher-Ellerth a version federal law have declined create Reporter day.25 it a involving vicarious liabili- Northwest and call We defense cases discussion, instance, interesting Tyler suggest, one if 24. For see S. 23.No would Smith, Note, Interpre- A Crisis in the adopt Iowa were to after statute modeled Mid-Life Rights Act state, the Iowa Civil 1965: tation statute of we another Original Interpret State Should Courts How interpretations compelled to follow the State Statutes Federal Antidiscrimination After supreme interpreta- other court of the state Amended?, Counterpart Are 64 Drake Statutes law, Crosby tion of Iowa See Ochsner Alton (2016). L. Rev. Found., (Miss. 1973) 661, 665 So.2d Med. (holding Mississippi adopted a stat- when a reaction has been referred as a Such enactment, Georgia ute modeled after a deci- response” opinions. to federal "‘Pavlovian *55 Georgia of did sions courts not bind Mis- Parkersburg, Joseph's Hosp. 208 Stone v. St. of statute). sissippi interpretation of courts in 91, 389, (2000) 538 W.Va. S.E.2d 410
613
sions,
do not
inter
follow
constitutional
is no
federal
and there
reason
follow
statutory interpretation
federal
in a
of
lockstep,
parallel
pretations
provi
even
lock
step
in
Instead,
fashion
similar statutes.26
J.,
2000)
(McGraw,
concurring
part
in
(announcing
and dissent-
that Missouri cases will
ing
part).
in
depart
rights
from
civil
federal
law "where
that law is not in accord with the thrust of
rights
civil
Many
cases have declined
state
(quoting
our state's statute”
v. Industri
Wentz
See, e.g.,
to follow federal authorities.
Smith v.
Automation,
877,
(Mo.
al
S.W.2d
879
847
Ct.
Dist.,
834,
(Alas
Anchorage
240
Sch.
P.3d
842
1992)));
App,
Cty.
Laudertv. Richland
Sheriff’s
2010) (rejecting Supreme
ka
but-for
Court
114,
386,
(2000)
Dep’t, 301 Mont.
7 P.3d
397
age
test
under
discrimination
unified Alas
for
(rejecting
prevailing
federal definition of
Inc.,
statute);
Google,
ka
Reid v.
50 Cal.4th
reading
because such á
would not
512,
327,
988,
Cal.Rptr..3d
113
235 P.3d
991-
purpose
Rights
further
of Montana Human
(2010) (departing
“stray
92
from
remarks”
Univ.,
Act);
Court);
Alexander v. Seton
precedent
Hall
Supreme
204 N.J.
of
v.
Williams
760,
219,
(N.J.
(Colo.
234-36,
2010)
Dep't
Safety,
(declining
369
8
Pub.
P.3d
774
A.3d 198
2015) (rejecting
precedent
Federal Title VII
analysis
to follow
framework
crabbed
pay
remedy
is an
Ledbetter);
that front
available
under
statute of
under
limitations
L.W. ex
act);
Colorado antidiscrimination
Vollemans
Reg’l
of Educ.,
L.G. v.
rel.
Toms River
Sch. Bd.
188,
Wallingford,
Conn.App.
v. Town
103
381,
535,
(2007) (re
N.J.
A.2d
189
915
549
586,
(2007) (rejecting
928
602
A.2d
the Ricks-
jecting Title IX deliberate indifference stan
filing requirements
dis
Chardon rule
in
analogous
Jersey prece
dard
favor of
New
criminatory discharge cases under Connecti
dent);
Us, Inc.,
Toys
Lehrmann v.
‘R’
132 N.J.
law),
57,
aff'd,
cut
289
956
Conn.
579
A.2d
587,
(1993) (declining
615 Res., Inc., 43, (2d 2000) 209 F.3d 49 involving supervisor a compared harass- (earlier precedent coworkers, not ment by case was because the law how does han- by “that issue neither contested the dle was situations when harassers include both parties, by nor panel”); addressed Fulton supervisors? coworkers and Taxation, Fo Dep’t und. v. Wis. 13 issues, many As with similar nothing 1, 312, (1961) Wis.2d N.W.2d the ICRA or Title VII expressly answers (holding previous case no one when chal questions, result, these aas courts are lenged precedent the issue could not on be left to through resolve statutory issue issue); Sanitary Lake Dist. Silver interpretation. Courts required are to fill Res., Dep’t Wis. Nat. 232 Wis.2d gaps in the statute in the crucible an (Wis. 1999) (“It Ct. N.W.2d App. adversary proceeding. is opinion blackletter law that not an does Challenged B. Trial issue, Court Instruc binding precedent establish for an if starting place tion. The analysis of our ais that issue neither contested nor decid review of the jury instructions Hasken- ed.”). negligence hoff s claim of under the ICRA An uncoritested statement of is not law In Instruction No. in marshalling See, e.g., Heming entitled stare decisis. harassment, struction for jury sexual 335; way, Goldberger, 734 F.3d 209 F.3d Haskenhoff to prove, instructed had 49; 635; Fulton, Berger, N.W.2d things, among other “6. Homeland Instead, agreed N.W.2d at Solutions, L.L.C., Energy or knew should upon legal principle is case law have known of or occurrence one binding on parties in the event of n sexually harassing more incidents. 7. retrial, nothing but v. Rag more. State Solutions, L.L.C., Energy Homeland acted (Iowa land, 2012) negligently creating continuing or a hos (holding legal principles settled bind language tile work environment.” ing litigants throughout progress future nearly Instruction 14No. is drawn verba case); accord State ex rel. Goettsch v. tim from United Supreme States Court Distribs., Inc., Diacide 596 N.W.2d description negligence of direct claims un (Iowa 1999). der v. Ball provided Title VII Vance U.S. -, -, University, State Negligence Theory, III. Li- Vicarious (2013), 186 L.Ed.2d Faragher-El- ability, employer always which stated “an will lerth Defense. negligence when liable its leads A. Overview of Issue. When creation or continuation of a hostile work sexually by is harassed other environment.” employees, question arises what ex- respect negligence, Instruction With may responsible tent employer be held jury No. 17 instructed the employees the actions its under civil rights question “Negligence” laws. One is whether means failure to use or- dinary should is the Ordinary matter the harassment was care. care care ' by by supervi- employer reasonably committed a coworker which a careful If supervisor, sor. the harassment would similar circumstances. use supervisor doing something should the be considered rea- “Negligence” agent provide employer and thus sonable do careful would circumstances, If liability? failing for vicarious basis different under similar legal consequences something reasonably harassment careful flow from do court, appellate cir- ed one review do similar federal nn of- does require instructions cumstances. “word-by-word hairsplitting.” Johnson substituting-the “employ- term Except *58 Breeden, 1308, 1314 280 Cir. F.3d is a “person,” Instruction 17 er” No. 2002). “accurately long as instructions As of Iowa Bar Associ-
verbatim version State law, judge given trial reflect is Instruction “Ordi- Jury ation 700.2 entitled style wording to the wide discretion Negligence- nary Law Care—Common Starke, v. 62 employed.” States United This instruction used Defined.” has been 1995). 1374, 1380(11th F.3d of this state in the courts countless times in negligence cases. question legal The in considering the 24, jury Finally, in Instruction No. is sufficiency jury of a instruction whether was that instructed “may of a claim relevant elements ade knows or should [o]nce jury by quately conveyed the evi harassment, it of sexual have known by argument counsel under dence and prompt remedial action rea- must take gave.” the instruction that the court Hill ‘ end sonably calculated to the conduct. 70, richs v. Corp., Avco 478 N.W.2d duty to employer has a take (Iowa 1991), grounds on other abrogated if an asks remedial action even Chrysler Corp., 494 Reed v. N.W.2d anything. not to do (Iowa 1992). important is is What added.) 24 is (Emphasis Instruction No. instructions, that considered as a the affirmative defense derived from whole, jurors that the were sufficient “so Faragher- liability claims from vicarious and were mis understood the issues not Ellerth. Johnson, at 1314 (quoting led.” 280 F.3d Jury In- Starke, 1380).
C.
oí Review of
Generally
Overview
62 F.3d at
under
instructions,
fashioning jury
structions.
In
in ordinary usage
stood
terms which
repeatedly
we
stated that a trial
have
not
State v. Kellogg,
do
to be defined.
need
particular
not instruct
1996).
court “need
(Iowa
542 N.W.2d
subject
applica-
way
long
so
as the
jury
error
instruction is
When
correctly
ble
covered
all the
when
law is
magnitude,
“the test of
constitutional
together.” State
are read
v.
instructions
sufficiently
prejudice
appears
is whether
(Iowa 1996).
Uthe,
A
542 N.W.2d
rights
complaining party
that
draft'jury
trial
“is free
instruc-
court
injuriously
have been
affected
that the
language.”
v.
in its
Hoekstra
tions
own
miscarriage
party has
of jus
suffered
Ins., 382
Mut.
Farm Bureau
N.W.2d
Gansz,
tice.” State v.
376 N.W.2d
1986).
(Iowa
emphasized
We
(Iowa 1985).
required
if the
Reversal
suggested by
not use terms
the court need
jury
jury instructions misled the
or if the
Bossuyt
Osage
Farmers
parties.
materially misstates the
court
law. Rivera
(Iowa
Bank,
Nat’l
N.W.2d
Ctr.,
Res.
Woodward
N.W.2d
pm;
And,
do not need to
instructions
(Iowa 2015).
Bossuyt,
particular
follow
authorities.
emphasized
we
instruction
D.
of the Parties.
Positions
though it did
fraud was sufficient even
phrasing of the
follow
exact
Restate-
1.
maintains
HES
the dis-
Defendants.
(Second) of Contracts.
ment
774.
trict
in its
instructions
court erred
“adopting
negligence
Our
Iowa
common law
stan-
well-established
caselaw
not-
precedent.
denying.
federal
As
HES’s affirmative de-
consistent with
dard” and
Specifically,
according
HES asserts
It
HES.
claims that
fense.
the dis-
ICRA,
obligated
HES
entitled
an instruc
trict
court
to include its
Faragher-Ellerth
additional verbal
tion
affirmative
formulation. HES further
defense,
prejudice
asserts
adopted by
which has been
from the
arose
failure
Rivera,
Supreme
States
main
so instruct.
United
Court. HES
892.
Faragher-
tains that it is entitled
argues
Haskenhoff
Haskenhoff.
Ellerth defense in this case
because
ICRA, plaintiff may
under the
choose to
plaintiff’s
supervisor-
claims involve a
and proceed under
negligence
either' a direct
alleged
harassment did not culminate
'liability theory.
or vicarious
She' asserts
tangible employment
in a
action. Under
*59
proceed
that
to
negli-
she elected
under a
Faragher-Ellerth, HES
entitle
asserts
gence theory, and thus the
to
law related
to an
defense that allows
ment
affirmative
liability
against
claims
vicarious
an em-
“(a)
show
irrelevant,
[HES]
to
exercised reasonable
ployer is
prevent
any
care to
and correct promptly
her
supports
Haskenhoff
choice-of-theo
behavior,
(b)
sexually harassing
that
by citing language
ries approach
unreasonably
take
failed to
[Haskenhoff]
at -,
Vance,
Supreme
in
570
Court
U.S.
advantage
any preventative
or correc
Vance,
In
133
S.Ct. at 2434.
United
or
opportunities provided by
to
tive
[HES]
Supreme
employer
stated “an
States
Court
Ellerth,
See
524
avoid harm otherwise.”
always
negligence
will
when its
be liable
765, 118
at
at
U.S.
S.Ct.
2270.
or
creation
continuation of a
leads
recognizes
involving
HES
in
.that
cases
at -,
Id.
hostile work environment.”
133
different,
harassment,
coworker
a
frame
added).
(emphasis
S.Ct.
Hasken-
at 2452
in
applies.
recognized
work
that
-HES
proposition
for the
hoff
cites Vance
further
declared,
Vance,
“If
Supreme
Court
harassers
a situation
some
are
that
where
harassing
is
co
the victim’s
supervisors
coworkers and others
worker,
is
employer
only
liable
if it
“presents
negligence
no
for the
problem
negligent
controlling
in
working-condi
at -,
sors negligence Jury in direct actions. While a cuit Model on Instructions Direct negligence theory generally direct used Negligence in A Harassment Cases. sur- liability employer to affix to the when the vey of circuit jury federal court model coworkers, solely harassers are ques- instructions for harassment claims based tion negli- arises as whether a direct negligence direct demonstrates the ka- gence claim can also be when one or made leidoscope of that may verbal formulations supervisors. even all of the harassers are be in instructing juries used neg- on direct plaintiff may A a strategy want use such ligence generally claims. See 3C Kevin F. not entirely when clear whether the O’Malley al., et Federal Jury Practice and harassers would be considered coworkers 171:23, § Instructions at 262-77 ed. supervisors. By assuming burden of 2014) O’Malley (provid- [hereinafter 2014] proving negligence, direct rather than ing model instructions from the feder- shifting the burden the defendant under al collecting circuits cases those approach derivative vicarious liabili- instructions). Some instructions are long, ty, avoids risk that plaintiffs some are short. In describing the ultimately court could conclude a harasser showing burden in negli- was not a supervisor and thus gent, language some use of reasonable- derivatively could not held liable on a ness, some use somewhat narrower Thus, liability theory. plaintiffs vicarious language prompt appropriate to litigate are not forced harassment cases action, many effective remedial use involving supervisors under a vicarious lia- both. bility They theory. may proceed choose *61 more demanding negli- under the direct The model instruction for the United gence theory. Appeals States Court of for the Third Cir- support is of cuit is According There dicta the notion and elaborate. detailed supervisors may instruction, co be considered the Third Circuit model sex: purposes negli workers for of direct involving nonsupervi- ual harassment cases gence brought claim Title VII. sors, plaintiff manage- the must show that Ellerth, Supreme the Court observed that “knew, ment or should have known the upon while a claim a vi derivative based plaintiff abusive Id. 264. If conduct.” the liability might carious be available case, however, proves its the defendant is against supervisors claims under certain an Id. at 265. allowed affirmative defense. circumstances, liable, can “an be though, affirmative Interestingly, the nonetheless, negligence where its own is a defense, the bur- which defendant has 758-59, cause of the harassment.” 524 U.S. at is proving, den in terms of couched lower 2267. There is feder According See id. reasonableness. al court authority and state consistent with instruction, Third Circuit model order proposition of super that the conduct satisfy requirements of the affirmative visors may part of a considered direct defense, (1) that the defendant must show negligence brought by claim a Title VII prevent “exercised reasonable care” See, One, plaintiff. e.g., Rios DaSilva to promptly the harassment and correct Inc., 148, 163 (D.P.R. 2013); F.Supp.2d behavior, (2) any Inc., harassing Rugs, Nadeau v. Rainbow 675 A.2d (Me. “unreasonably 1996); plaintiff failed to take ad- Angelone, Hoy preventive vantage any or corrective Pa.Super. 691 A.2d (1997). opportunities.” prong Id. On the first O’Malley at 270-71. approach. offers a direct
reasonableness, Third Circuit negligence, involving case meets In a harassment a defendant instruction further instructed Circuit is in the had Seventh showing by the defendant that burden proved, harassment, harassment has been that when against policy explicit if or should it “knew liable to its em- fully communicated policy was “did the conduct” and about have known a reasonable policy provided ployees, the steps to [correct reasonable take a claim of harass- to make way for recur- from situation]/[prevent harassment taken to ment, steps reasonable were The That is it. Seventh ring].” Id. at 271. The Third Circuit problem. Id. correct the quite similar model instruction is tends Circuit for coworker harassment instruction marshalling given instruction negli- concepts of direct and match to mix and, compared in this case court district derivative liability concepts gence instruction, has Fifth Circuit model liability theory on vicarious liability based simplicity. advantage See id. Faragher-Ellerth. as outlined 264-65. re- Eighth Circuit model instruction The plaintiff show the defen- quires that materially dif- Fifth takes a
The Circuit or should have known” “knew instruction dant lengthy tack in a model ferent failed “the alleged conduct and claims defendant negligent-harassment direct al., corrective prompt appropriate O’Malley F. et take Kevin 3C coworkers. Jury n Practice and Instructions instruc- Although this action.” Id. at 272. Federal instruction (6th ed.), (database somewhat up- tion § 171:23 Westlaw differs case, appropriate cor- “prompt and in our Aug. Fifth Under the Circuit dated not seem to be lesser rective does work action” instruction for a claim a hostile “reasonableness,” An action than standard involving environment coworkers based might still be consid- “prompt” that is not negligence, plaintiff must show direct by jury, while an action “knew, reasonable or in ered the defendant the exercise also known, surely “appropriate” that is reason- reasonable care should have [sexually ha- able. plaintiff] being [the sex].” rassed] [Plaintiffs because model longer Ninth Circuit has *62 instruction the The Fifth Circuit states claims, negligence for direct instruction plaintiff must show that the harassment place essentially to the same it comes but per- or to a “known communicated
was Id. the Seventh Circuit’s instruction. as receive, address, authority to son who had Circuit’s instruc- 274-75. Under the.Ninth complaint,” or that the the report tion, and proves who harassment plaintiff “open so obvious” was the harassment liability employer on the impose seeks of it. Id. In have known should defendant mem- or a show that “the must defendant addition, prove the plaintiff de- the must management knew ber the defendant’s “prompt failed take remedial fendant harassment have known the or should Inter- the harassment. Id. stop action” to prompt, reme- and failed- take effective the further estingly, though, instruction the reasonably calculated end action dial con- as remedial “prompt defines action” 274. The Ninth Circuit harassment.” Id. at stop “reasonably the duct calculated qualifies as further defines instruction who remedy the Id. harassment and situation.” management and the defendant’s states reasonable and action “must be remedial jury Circuit model instruc- The' Seventh detailed, Although more adequate.” Id. meandering in- arguably the tion eschews difference between is no substantive a more there Circuit for struction Fifth instruction total- specifically plaintiff the Ninth Circuit and the noted We did assert, ity “Mueller, court’s district instruction that supervisor, was Ag case. acting as Ag strictly that was liable for Mueller’s actions.” Id. at In other jury What these instructions diverse words, plaintiff pursuing was a direct neg- there is demonstrate is that not one “cor- ligence theory agency and not an theory negli- rect” instruction a direct give liability rise to strict gence can case..They vary fairly against employer. by the complex instructions used Fifth and very simple Ninth to the instruc- Circuits Lynch, Unlike howev- Chauffeurs tion utilized It is Seventh Circuit.. er, in Vaughn we found that the defendant clear, however, the model instructions prevail. entitled to Id. at 639. We Fifth, Seventh, Eighth, in the and Ninth that while found knew the defendant Circuits are consistent with trial harassment, employer took prompt re- court’s instruction this case. to remedy problem. medial action Id. explained at 634. We “prompt remedial Negligence
G.
Iowa
Caselaw
Claims,
placing
duty
action” as
“a reasonable
on an
pre-Faragher-Ellerth
In the
cases
employer who is aware of
discrimination in
Chauffeurs,
Helpers,
&
Teamsters
Local
workplace to
take
steps
reasonable
Rights
Union No.
Iowa Civil
Com
238 v.
mission,
(Iowa 1986),
addéd).
it.”
remedy
(emphasis
Id. At
634’
N.W.2d
Moines,
Lynch
employer
noted
whether
v. Des
We
N.W.2d 827
takes
‘
(Iowa 1990),
steps
remedy
considered
such reasonable
we
cases in which
question
of fact.
plaintiff claimed the
main
harassment
defendants
We
Vaughn
further noted in
that the employ-
tained hostile
environments based
race
“especially
er’s
respectively.
and sex
In
one
conduct
reasonable” in
describing
light
of the evidence
the elements of
which showed that
hostile-environment
claim,
Lynch
plaintiff
did not know
plaintiff
we stated
that the
religious
was a
prove
must
“the
knew or
victim
discrimination. Id.
should
Vaughn,
at 635. Under
have known of the harassment
seems that
and failed
“prompt remedial action” and
prompt
to take
“reasonable-
appropriate remedial
interchangeable concepts,
ness” are
much
(emphasis
add
action."
N.W.2d
ed).
like model
in the Fifth
Chauffeurs,
we
instructions
slightly
used
dif
formulation,
Ninth Circuits.
indicating
ferent
verbal
prove
needs
the defendant
first post-Faragher-Ellerth
Our
in-
ease
knew or
should have known
the harass
volving a claim of a hostile environment
ment
prompt
and “failed to take
remedial
Foods,
was Farmland
In then a pr another at 744. as sen- We Vaughn Ag Processing, Inc., again stating, supervisor perpe- a tence “When we 'harassment, tangible no a the em- were asked to hostile-environ- trates but consider ’ claim, occurred, the employer ment harassment on ployment time action based (Iowa 1990). religion. may Faragher-Ellerth the N.W.2d assert affirma- “prompt Vaughn, phrases In the shorthand liability.”28 Id. defense to avoid tive Foods, appro- plain- “prompt action” and we concluded the remedial Farmland failed, presented, “rea- equated steps on the evidence priate tiff action” are with racial a hostile environment sexual sonably stop show the calculated result, at As a the id.; harassment. Id. 746. Vaughn, 459 N.W.2d harassment.” See employer the acted question whether at 634. allegedly to the
reasonably response Faragher-El- the H. Discussion: Can was not considered. hostile environment At lerth Defense “Jump the Track”?29 Boyle, 710 at consid- In we outset, question no the the there is established a hos- plaintiff whether ered case- prevailing current state and federal on tile environment based sex. The district in a plaintiff law that a sexual-harassment the employer court the knew of concluded on against employer may proceed case employer take harassment but the “did that the negligence theory a direct the steps reasonably stop calculated theory from a negligence direct is distinct (emphasis Id. at 747 sexual harassment.” on liabili- derivative claim based vicarious added). that order to also stated We I ty. thus set aside the caselaw hostile environ- liability establish on might to derivative claims based relate ment, plaintiff must that “the em- show liability solely and focus the vicarious knew have of the ployer or should known negligence. law related direct proper harassment to take re- and failed cases, employer In direct negligence (emphasis Id. add- medial action.” stating that is to a instruction entitled ed) Foods, (quoting Farmland 672 N.W.2d plaintiff proving has burden test, however, equated We employer’s negligence cre “leads “steps reasonably to end calculated work ation continuation of a hostile (empha- the sexual harassment.” -, Vance, environment.” 570 U.S. added). record, sis After canvassing we theory, negligence S.Ct. at 2452. Under not support concluded the record did Faragher-Ellerth there is no affirmative employer trial court’s conclusion Faragher-Ellerth affirmative defense. The steps reasonably stop took calculated defense, available, only in applies if it is employer harassment. Id. Because the liability. cases based vicarious steps “reasonably not show it took did Beckford Corr., Dep’t harassment,” F.3d stop calculated the sexual 2010) (finding give “im- refusal to employer that the we stated failed Faragher proper when appropriate defense instruction plement prompt and correc- liability).30 plaintiff argue action.” not vicarious Boyle tive Id. at did 748. Long, applied generally 29. Alex B. the Train 28.This dictum correct as to a de- See “If upon liability, claim Jump ...Divergent rivative based vicarious Inter- Should the Track apply upon does claim but it to a based Employment pretations State and Federal negligence. supervisor partici- direct When a Statutes, 40 Ga. L. Rev. Discrimination harassment, plaintiff pates hаs a (2006). may proceed directly choice.- The against negligence under a theo- parties in our Although assumed ry showing and bear the burden of that the Faragher-Ellerth cases defense should have knew or known ICRA, adjudi- available under we have *64 it, stop may harassment and failed to or she in a A number cated the issue contested case. liability theory. proceed vicarious If under a adopt the of state courts have declined to plaintiff proceeds the under vicarious liabili- Faragher-Ellerth civ- defense under their state ty theory, employer is to the then the entitled acts, See, rights e.g., Myrick, F.Supp.2d il Faragher-Ellerth defense. result, As a it that important is to note is on always plaintiff prove the to negli- negligence, claim on under a based gence. But sought HES this instruction prong Faragher-Ellerth de- second of the not object may does to it now. It have fense, namely, employer may that wrong, been but complain HES cannot prove plaintiff failed to avail herself about an instruction it sought and does not employer’s remedy, ap- no internal has on challenge appeal. Indeed, plication. that is main advan- I turn to- question now of whether tage of negligence claim—specifically, court properly district instructed the provide liability that it can basis for jury what plaintiff must show formal- when the harassment victim never liability affix upon HES based direct ly complained to employer. his her See negligence. The marshalling instruction re- Molecular, Inc., Zayadeen v. Abbott No. quired plaintiff to prove that HES (N.D. 10 C *1 at Ill. WL “negligently in acted the creation con- 30, 2013); Freeman, Bright A Jan. Andrew tinuance a hostile work environment.” Line, Exactly But A Look ? Closer Where These words are virtually lifted verbatim University at Vance Ball Su- State and are a Vance correct statement of VII, pervisor Status Under Title 19 Lewis law. (2013). Clark L. Rev. 1161-62 The & report management good. Next, fact that a is not far so So the district court required is important negligence. feature of direct offered an instruction on negligence many are liability, jury women district court “neg- instructed the that step report ligence” forward to reluctant sexual means “the failure exercise or- superiors. Further, harassment See Canute dinary “ordinary L. care.” care is Hebert, Why Don’t “Reasonable reasonably Women” the' which care careful em- Harassment?, Complain About Sexual 82 ployer would use all the circum- (2007). instance, Ind. L.J. For stances.” not may report some victims harassment asserts the HES district formula- court’s for fear of retaliation from See coworkers. inadequate. tion It is insists the district Courts, Note, Christopher M. An Adverse required court jury instruct Employment Action—Not Un- Just an that must show not that
friendly Place to Retal- Work: Co-Worker reasonably, employer failed act but in- VII, iatory Under Title Harassment to use stead failed (2001). Iowa L. Rev. appropriate “prompt remedial action.” result, argument As a it was HES’s short, magic In HES insists on words. Faragher-Ellerth to an affirmative entitled only But require not does our law not Interestingly, without merit. defense instructions, magic jury words but. such however, the court instruct trial did demanding regimes contrary to word prong Faragher- first our declarations that the trial court “need Ellerth affirmative defense Instruction particular way long instruct so No. 24. That instruction stated HES subject applicable law correct- showing had the took burden of Uthe, 815; ly covered.” N.W.2d prompt appropriate action remedial Hoekstra, 382 N.W.2d at reasonably to end calculated the conduct. action, however, a negligence only does One can the differ- HES wonder what Rather, any acting burden. ence is reasonably the burden between act- 98; 918; Chambers, Pollock, S.W.3d at 767. *65 to reasonably employer a careful mg appropriately. Federal cases refer “which “word-by- use arguments with disdain as would a similar circumstance.” such Johnson, hairsplitting.” 280 F.3d See word adequate instruction is The fact the was the Certainly, 1314. difference between In by the record in this demonstrated case. reasonability in concept of the district the statement, opening her Haskenhoff told appro- negligence instruction and court’s duty jury employer the that “an has a to not a formulation is priateness .., in HES’s protect employees they its insofar here, for basis reversal reasonably can do so sexual harass- Further, jury the ment.” Haskenhoff told also term formulation uses the HES’s “if employer an knows about sexual the court’s instruc- “prompt” while district it harassment and lets continue This simply reasonability. to tion referred it month—let alone several' months—and Our the error. stuff reversible employer the ... the must violates law re- equated has repeatedly prompt caselaw compensate harm the victim whatever “reasonably cal- action with action medial is caused.” stop to the sexual culated harassment” employer statement, duty on opening a “reasonable In its placing respond- HES work- manager in the that “this who is aware discrimination ed a case about a lab remedy years steps report to to that failed for months or to place take reasonable and, 747; Boyle, Vaughn, prohibited conduct before HES could it.” 710 N.W.2d reported, quit term act on the anything, If the information she job.” jury on the on the further the demanding more HES asked “prompt” may be the that the require- evidence show employer reasonability “will than the ... policy that HES court. followed HES ment as In instructed district given promptly remedy to event, chance any find no reasonable I would report?” Then in conduct that she did rea- jury draw between distinction closing Haskenhoff argument, told stop action sonable jury, prompt appropriate harassment and They negligently.... Homeland action. acted
remedial workplace. They did not monitor the did considering negligence In instruc- nothing protect going for- more Tina case, in this the instructions given tions stop it. They nothing .... did ward accurately instructions reflect the law. The They contin- the environment to allowed very to the model instruction were close great ue and harm to Tina.... caused and, in their use Seventh Circuit Once should knows totality, certainly consistent with harassment, have known about sexual in the Fifth and Ninth model instructions prompt take action rea- must remedial Circuits. The court instructed district sonably calculated end the conduct. marshalling jury in the instruction Thus, added.) (Emphasis closing in the prove Haskenhoff the burden to had statement, Haskenhoffs told the counsel HES “knew have or should known” obligation employer, The instruction further re- harassment. once it knew dr should known about quired prove Haskenhoff that HES harassment, “prompt take re- negligently creating “acted or continu- reasonably action medial end calculated ing hostile environment.” The dis- work the conduct.” gave proper trict court instruction also statement, jury regarding meaning negli- closing picked up its HES ordinary plaintiffs closing
gence argument. as a to use care failure HES
625 harassment.”); to jury prove told the that “she ... Campbell ..needs v. Fla. Steel (Tenn. 1996) failed to act and reasonably Corp., (stat that HES S.W.2d bring in a responsibly way ing precise calculated to no of “prompt definition and complained the conduct of which she to an appropriate though remedial action” biggest question.” end. That’s the general employers are required to take steps “reasonably calculated” to terminate Further, jury HES told the harassment); Co., Davis v. Mfg., Modine go Instruction 17 to last the (Tenn. 1998) App. S.W.2d Ct. element, you if will. What the (equating “prompt appropriate correc to prove has is that tive “reasonably action” with action calcu doing something either not a reasonable to alleged lated terminate harass careful to would do failed ment”). If jury HES convince a could something reasonably do em- careful prompt took it and effective remedial ac ployer do. tion, it would not to be found have acted HES further asked the “did com- unreasonably. no error There is put together pany plan that was reason- instructions that lan were based ably calculated end the Ac- conduct?” guage Jury Vance and the ISBA Model HES, cording company it “wanted (cid:127)Instruction defining negligence. just stop,” and cited “the here evidence rebuttal, it did.” In told Haskenhoff Instruction on IV. Causation Retal- jury, “You have to conduct prompt, iatory Discharge. thorough investigation impartial into harassment, any potential sexual however A. Introduction. it, you become it is in a aware whether Ambiguity language. in “because” not, complaint you written whether see has been one of the most contro- Causation just or whether it’s a rumor.” aspects versial law. opening closing argu- What literature is of alternate chock-full causa- instructions, ments demonstrate is that standards, for,” tion including “but “moti- though brief like the Circuit mod- Seventh factor,” factor,” vating “a mo- “substantial instruction, clearly el were demonstra- factor,” tivating and similar terms. There bly sufficient HES allow make arguments aplenty each them. argument on appeal which claims it was Isaac, Is generally See D. It Kendall “A” Hillrichs, making. foreclosed from See Or Is It Motivat- Deciphering “The”? (finding instructions ade- ing-Factor Employment Standard in Dis- quate they which consideration allowed Cases, crimination and 1 Tex. Retaliation arguments by evidence and counsel Schwartz, '(2013); L. Rev. A&M elements). legal HES advances a bat- thus (citing U. Pá. L. various Rev. principle, tle not over over semantics. but approaches different require- causation instructions, Under .had Haskenhoff ment). proving negligence. burden of theAs using model various circuits By instructions “because” Iowa Code section indicate, 216.11(2), “prompt and effective the section remedial to causation related cases, action” is rea- way expressing another legislature retaliation Iowa ‘R’ Toys sonableness. See also Lehmann v. has question left the causation to the N.J, Us, Inc., 445, 464 A.2d courts statuto- determine matter (1993) (“Effective” ry remedial measures are construction. Because statute am- “reasonably biguous, those we plausible calculated end have a number system protection if the is to function our au- need interpretive exercising choices. *67 is not a properly. A retaliation claim thus thority the statute and choose to construe choices, rights on the of civil fringes we claim among plausible interpretive satellite claim, of stat- It without which cognizant of the text the law. is essential must be ute, laudatory not fulfill its goals, legislative direction the could its and the ICRA broadly to statutory purpose. to construe the ICRA effectuate 216.18(1). § underlying purposes. its as Purpose provision 3. retaliation of reporting require 2.Centrality of considering In wheth- affecting causation. linkage law rights ments in Iowa civil presented has sufficient plaintiff er the may Some re substantive violations. a retaliation to reach a evidence as a a retaliation claim second-class gard claim, has on the much debate occurred compared to under ICRA status- claim the factor, a motivating level of causation—a claims. Retaliation based discrimination factor, factor, a but-for etc. substantial claims, however, are not second-class causation, however, Aside from level all, claims instead are claims but is not a there issue. Causation is another of the very strike at the heart enforcement floating employ- free radical around the ICRA, of the the a regime ICRA. Under any other ment universe untethered to law a claim timely is to file required claimant legal ques- There is principle. a relational in Rights the Iowa Commission with Civil tion, in namely, causal relation connection State, McElroy present order to a claim. what, exactly? (Iowa 385, 391 The re 703 N.W.2d key question. the retali- that is a In And Thus, id. mandatory. is See be quirement context, the question ation the is whether from ing able to a claim free fear file judged by alleged causation is whether directly workplace retaliation linked a retaliatory likely deter conduct would ability of a claimant to vindicate his plaintiff making complaint a contem- A rights ICRA. her statute Or, rights is it plated by our civil laws. workers to invoke administrative forces term, con- judged by whether “affects in in process cooperate subsequent or to dition, privilege” emplоyment? This vestigations protect workers who should question just important as relational Sperino, Retaliation comply. Sandra F. of the of causation calibration “level” Person, L. 67 Fla. and the Reasonable required determining plaintiff in whether (2015) Speri- [hereinafter Rev. support showing has a sufficient made no, Retaliation]. retaliation claim. result, As channels keeping free, retalia- rights Difficulty fact-finding potential civil claims reporting Finally, recognize tion we open, is crucial vindicat- cases. should and unfettered evidentiary challenges facing plaintiff ing ICRA. policies the substantive And, claim. In retaliation closing reporting proving channels a retaliation cases, necessarily into only probing diffi- through retaliation affect we are does involving cult the motivation system harms the See factual issues party but itself. The Supreme evidence related Moberly, Court’s defendant. Richard in the hands of always motivation is almost Principle, Antiretaliation Case Res.W. (2010) addition, (citing the evidence L. enforce- defendant. Rev. law indirect, place rationale). work is often protecting ment In addition modern discrimination, “smoking guns” occasion- co- are still person claiming although ally participating investigations uncovered. workers Further, major to the extent of’ point causation involves “because has been a person posi- whether a reasonable controversy in federal civil rights law.
tion of would be deterred from Early struggling federal caselaw utilizing appropriate reporting procedures, language of’ “because came mixed question highly contextual. becomes results. Many adopted federal courts a re Highly rarely contextual factual issues of proof played-a laxed standard to a close summary judgment. amenable to part King Dep’t standard. See v. N.H. Challenged B. Trial Court Instruc- Dev., Res. & 420 F.Supp. Econ. *68 respect tions. retaliation With her (D. 1976). N.H. adopted something Others claim, jury the was instructed Hask- significant-factor like a test. See Baldwin only prove report enhoff need that her of Educ., Birmingham 950, Bd. 648 F.2d of “played part” sexual harassment in (5th 1981); 956 Whiting Cir. v. Jackson employ- HES’s decision to take adverse Univ., 116, (5th State 616 F.2d Cir. action her against prevail ment her 1980). cases Some embraced a more strin jury claim. The was further in- retaliation gent determinative-factor or motivating- “play part” report structed that to Munson, factor test. See Womack v. only “a in need have been factor” HES’s (8th 1292, 1297 1980).31 F.2d Cir. employment but action “need be the Waterhouse, In Price the United States only factor.” Supreme meaning Court considered the of HES offered instruction Hask- the term of’ “because under status- report enhoffs sexual harassment must provision based classification of Title VII. significant motivating have been “a factor 239-40, 490 U.S. at at A S.Ct. 1785. decision materially to take Defendant’s majority of court proper concluded the against adverse action Plain- approach phrase of’ “because was a tiff’ in in order for the to find favor of motivating-factor test. Id. at 109 S.Ct. Haskenhoff on her retaliation claim. (plurality opinion); at 1795 id. (White, J., concurring); S.Ct. id. at C. Federal Caselaw on Causation (O’Connor, J., at 1804 con S.Ct. Rights for Civil Standard Claims. curring). As Justice Brennan noted his 1. Causation standard status-based plurality opinion, Congress specifically has Title discrimination. VII Civil rejected an amendment term put.the Rights provides Act of 1964 that it “is an “solely” front of’ lan “because employment practice unlawful for an em- 241, 109 guage. (plural Id. at at 1785 S.Ct. ... against any to discriminate in- ployer Brennan, ity opinion). According to Justice ... dividual because such individual’s Congress employ intended to eliminate race, color, religion, sex, or national ori- ment discriminatory decisions which 2000e-2(a)(l)-(2) § gin.” (empha- U.S.C. “played part” employ motivation in an added). prior legislatures Like sis state decision, ment even if it not the sole who used term in state civil them for the Id. basis decision. acts, rights Congress provided guidance no Court, however, The Price meaning phrase to the Waterhouse ambiguous to its motivat- important “because of’ in its discrimina- added an caveat status-based ing-factor provision. meaning phrase interpretation. tion The In of mixed cases (8th 1990); Minn., subsequent- appears 31. Womack to have been Cir. Balicao v. Univ. ly See, modified later cases. e.g., Tuttle v. F.2d n.2 Co., Henry J. 921 F.2d n.3 Kaiser 2000e-5(g)(2)(B). impact § motive, con- 42 U.S.C. the Price Waterhouse Court provided employees to a of this amendment that an was entitled cluded than greater protection allowed Id. at decision” affirmative defense. “same Supreme Pri.ce Wa- words, Court’s decision if In other terhouse. amendment The same-decision employer could show a mixed-motive underlying thus with the consistent same decision case statutory Rights of the Civil Act purpose moti- discriminatory made absent been “provide protections” of 1991 to additional vation, liability. escape could suffering from employees impermissible discrimination. response aspect to the same-decision however, Notably, Act Rights the Civil Supreme of Price other Waterhouse pro- of 1991 did not retaliation amend decisions, rights Congress civil en- Court VII, which also contains vision Title Rights Civil Act of 1991. acted Civil requirement causation. because-of What 102-166, Act Rights Pub. L. No. gloss put should because-of lan- *69 (codified 106 Stat. 1071 at 42 U.S.C. in light in the guage the retaliation 2000e-2(m)). 1991 § The of the purpose Rights the Civil Act Price Waterhouse Act, according Congress, provide was to of 1991? protections against “additional unlawful ap of possible There a number were in The employment.” discrimination Id. proaches. courts concluded that Several Rights Act of Civil 1991 the follow- added Congress specifically did not because ing section to Title unlawful VII: “[A]n the in separate retaliation section amend unemployment practice is established 1991, Rights ofAct the causation the Civil the complaining party when demonstrates existing passage before standard race, color, sex, religion, or national pro Act in announced Price Waterhouse motivating any origin was a factor approach to causation prоper vided employment practice, even other though See, e.g., Medlock v. Or retaliation claims. 42 practice.” factors also motivated the Biotech, 545, Inc., 164 F.3d 552 tho n.4 added). 2000e-2(m) § (emphasis U.S.C. (10th 1999); Paper Cir. Scott Woodson v. plainly This section endorsed motivat- (3d 1997); Co., 109 Cir. F.3d 934-35 ing-factor approach of Price Waterhouse. Nordberg, Tanca F.3d statute, Congress further amended (1st 1996). that the recognizing Cir. While however, to limit the affir- same-decision Rights Act of 1991 did Civil amendments mative established Price Water- defense claims, these not extend to retaliation house. Congress limited the same-decision took position Supreme courts that if providing defense Waterhouse, in Price decision Court’s that it demonstrates claim, did involved which status-based claims. courts extend to retaliation These taken same action unique relied on the nature thus motivating impermissible absence of the legislation uncouple causation factor, may ... declara- grant the court claims standard retaliation-based relief, tory injunctive ... [lim- relief claims. status-based ... and attorney’s fees costs ited] taken damages ... or issue an Other federal courts seem to have shall not award admission, any Although short of requiring approach. order rein- a different statement, promotion, pay- express holding, the Seventh Circuit hiring, Daniel, Inc., Veprinsky Fluor cited ment. Gross, establishing motivat In the Court amendments considered the .meaning of provision ing-factor causation ADEA test which status-based .stat- ed, applying for treat discrimination also
ment of claims. 87 It shall be retaliation F.3d unlawful for an ... 1996); to fail discharge see also Hall v. or refuse or to 887 n.3 hire any individual or City Brawley, F.Supp. otherwise discriminate 1995) against any (S.D. respect to his individual (finding impermissible mo Cal. terms, conditions, compensation, or priv- tivation, sustaining “same de decision” ileges employment, because such fense, affording statutory but remedies age.. individual’s Rights permitted under Civil Act Waterhouse). but not under Price de Id. at Ct. at (quoting S. 623(a)(1) § added)). University, (emphasis Llano v. North Dakota State U.S.C. court district concluded that “it would The court Gross district instructed illogical contrary congressional jury liability upon based could be
intent to
different
apply
proof
standards
age
motivating
determination that
awas
provisions
re
accompanying
relief
170-71,
factor.
632 1178, (2016). 24, This App. 1183 developed a con P.3d courts have 373
Missouri course, view, the is in variance with tributing-factor test for causation retali court, interpreted the sub- City Pub. Allison which Turner v. Kan. ation cases. See 719, (Mo. falling Sch., test as well short App. Ct. stántial-factor 488 723 S.W.3d Airlines, 2016); P.2d 35. but-for test. See 821 v. Trans States Williams (Mo. 854, Inc., App. Ct. 866 S.W.3d of California consid Supreme The Court 2009); Dist., v. Ritenour Sch. McBryde for retaliation claims the standard ered (Mo. 162, App. Ct. It S.W.3d Monica, Harris v. Santa Cal.4th “contributing” clear what entirely not (2013). 392, 294 P.3d Cal.Rptr.3d the analysis. means how adds to developed The court a substantial- Harris The motivating-factor or -reason test. Id. adopted a substantial- Some states Allison, instance, a sub For court a distinction between factor test. drew motivating adopted stantial-motivating factor a Washington Supreme Court court, According to the sub test claims factor. Id. for retaliation substantial-factor test Washington Rights stantial-motivating-factor Act. Human ensured liability imposed “on rejecting In would evidence 38. but-for 821 P.2d at thoughts passing test, Washington mere statements Supreme Court em disputed employment decision.” instruction that legislative unrelated phasized the .; Mgmt. provide see v. Practice Washington courts a liberal con Id Alamo result, Corp., Cal.App.4th 161 Cal. Act. As a struction of the at 37. Id. Info. (2013) (reversing Rptr.3d trial Supreme Court Washington noted VII, required court when instruction judgment Title local differed from which statute motivating factor instead a substan a liberal-construction di did contain factor). tial-motivating The court further Washington Su rective. The Id. 38. if demonstrated a but-for cau preme Court concluded that decided any have been put an unrealistic would made sation standard would decision event, complete not be a de limiting ability plaintiffs, burden on fense, enti would still be plaintiffs to assert antidiscrimination but many hand, attorney’s fees. injunctive tled to relief 42. On the other claims. Id. at Cal.Rptr.3d 294 P.3d rejected any degree” “to court standard words, According adopted, through the court other plaintiff. advocated decision, court, judicial approach in the slight Civil Washington retal even Rights modifying of 1991 em Act Price animus be the basis of Water- iatory could King Cowboy Dodge, also liability. Washington house. See Id. at 42. ployer 2015) Inc., (Wyo. (rejecting P.3d 755 court its substantial-factor characterized M; see also Nassar and “substantial and adopting test as an intermediate one. test, Mich.App. motivating” largely Rymal Baergen, 262 borrowed cases). (2004) (stating compensation retaliation estab workers’ case, plaintiff lish causation retaliation courts, however, have Some state significant must was “a illegal show action very stringent but-for test adopted the action). factor” in adverse example, Ash- *73 claims. For in retaliation cases, Powell, University Kentucky In bury the above substantial-factor v. majority stringent Supreme not Court entirely is clear how test summarized accepted Owen, argument it under Oregon In in Nassar and is. Lacasse v. court (Ky. suggests Kentucky the substantial-factor test law. S.W.3d 2016). Navy, Similarly, in the court de- as a. test. 278 Or. about same but-for dared, analysis, that with little there must for a retaliation claim “signifi must be a factor, just be a substantial and not cant motivating factor” the adverse em link, any supporting causal retaliation ployment Notably, decision. Id. we used 899; claim. 407 at see also S.W.3d both term “significant” and the term Wholf v. (Ohio Inc., Tremco Ct. N.E.3d “motivating” to describe the causation re 2016) App. Ohio (noting rights civil statute quirement. Id. After having stated that embracing “modeled after Title VII” significant causation must abe factor moti reasoning of In majority). the Nassar. vating decision, adverse Inc., Service, Parcel Gorree United we cited then another case from the appellate applied Tennessee court the but- Eighth applying Circuit a substantial-fac case, for of in a test Nassar retaliation M; Womack, tor test. see 619 F.2d at noting in Tennessee intend legislature 1297. ed “to be Tennessee law coextensive with We question the causation returned (Tenn. federal law.” 490 S.W.3d for City claims in Hampton retaliation 2016). App. Ct. None these dis eases Rights Commission, v. Iowa Civil Rights impact cussed the the 1991 Civil (Iowa 1996). N.W.2d The brief discus legislative Act nor the unique history be in City sion causation Hampton was compared to hind Title civil VII state argument no regarding dicta as level of rights statutes. presented causation was to the Iowa Civil Rights Commission. See In id. 535-36. E. Un- Iowa Caselaw Causation City Hampton, we II for cited Hulme der ICRA. the proposition that hi cases, retaliation applicable 1. Generally causation eausation aby “significant established standard status-based discrimination. factor” motivating the employ adverse exploration most Our recent of causation ment decision. Id. did not We cite the ain claim of status-based discrimination motivating-factor language Hulme II. Rose, Inc., Raining DeBoom case, again cited We the Womack but this (Iowa DeBoom, In we time proposition Eighth for the that the emphasized causation test for status- had Circuit established a test and but-for based discrimination under the ICRA was suggested not a substantial-factor test determining not factor” rath “the test but cited, II. Id. We also without Hulme “a factor” determining er test. Id. at 13-14 elaboration, a Circuit case Sixth added). (emphasis We further it was noted significant-fac Michigan supporting law dis sufficient show status-based (citing tor Polk v. Yellow standard. Id. “played part in the Defen crimination' Inc., Freight Sys., 801 F.2d Id. dant’s later actions Plaintiff.” toward 1986)). 13. Hampton, City In II we Hulme In Causation retaliation cases. underlying statutory (Hulme II), did not review Hulme v. Barrett 480 N.W.2d engage in a (1992), text of the We did ICRA. briefly we considered in- of the available discussion reasoned question proof retaliatory discharge options. II, terpretative. We did consider case/ In Hulme we declared a brief 216.18(1) impact Iowa Code section paragraph the causation standard interpret requiring “broadly retaliation under the ICRA was a we claims fact, “high Citing purposes.” one.” one case from the its act effectuate all, ambiguous analysis only no offering analysis, Sixth Circuit but no there is we required regarding a declared the “causal and inconsistent connection” declarations *74 634 legisla- overriding motivating- provide basis for test and
substantial-factor textual ture’s choice. factor test. Indeed, status-based discrimination and Analysis. I of begin the discussion F. claims halves retaliation are two proper causation consideration depends of each same walnut. The success to sustain a required of causation
level Nassar, efficacy upon the of the other. 570 ICRA, claim. unified retaliation Under the at -, 133 2531. Retaliation S.Ct. at U.S. for legislature has used the same term complaining for about discrimination for both status-based discrimina- causation prohibition tightly bonded the core and claims, namely, the retaliation tion Thus, from it. Id. be disassociated cannot of’ lan- “because familiar “because” and argument to the in addition textual based .11(2). 216.6(l)(a), §§ Code guage. Iowa upon common use of the because-of causa may from the Two conclusions be drawn in discrim tion standard both status-based of’ “because cau- use the “because” and provisions ination claims retaliation status-based language both the sation ICRA, strong is also a under there of the ICRA. and the retaliation sections argument utilizing functional same First, strong argument is a Indeed, there textual United legal standard. States Court, of causation for status-based that the level prior to its innovation Supreme the Nassar, claims be and retaliation should retaliation repeatedly claims held that when said that frequently same. type We status discrimination. See Educ., appears multiple times in Birmingham term v. Bd. same Jackson statute, 167, 174, 1497, 1504, have the same the same should U.S. 125 S.Ct. (2005). v. meaning. Paye, 866 N.W.2d State L.Ed.2d (Iowa 2015); Roediger, v. accord Carson refinement, approach represents This (Iowa 1994); State 513 N.W.2d for retaliation perhaps, standard (Iowa Johnson, Ct. N.W.2d under the ICRA used Hulme II claims 1999). This been familiar rule has App. cases, City Hampton. these we in the of civil applied repeatedly context for retalia appliеd substantial-factor test See, Fry’s e.g., statutes. EEOC rights City tion claims the ICRA. Elecs., Inc., F.Supp.2d 535-36; Hampton, 554 Hulme N.W.2d (W.D. 2011); Mfg. v. Birken Patino Wash. II, do not believe there 43. I 1013, 1041 Co., 41 A.3d 304 Conn. great is a difference between substan (2012); Baer, 100 Antonio v. S.W.3d San City II tial-factor test Hulme (Tex. 2001); App. generally 3B see motivating-factor Hampton and Singer Singer, Stat Norman J. & Shambie But to played-a-part test in DeBoom. 76.9, § Statutory Construction utes any extent there is distance between the n. 11 205 & ed. standards, presents op two this case to close distance. portunity
Further,
policy
reason
there
no
legislative judgment
By
approach
use
unified
question
adopting a
causation,
there-
language,
and retaliation
we
nearly identical causation
status-based
juror
avoid
confusion. We would
by implying the same level of causation
would
Ginsberg noted
claims as well as for status-
avoid what Justice
would
retaliation
Nassar,
above,
namely,
the result
dif
discrimination. As indicated
based
citi-
cause ju
ferent causation
retaliation claims
not second-class
standards
zens,
“puzzle
rhyme
reason
critical to effective enforce-
rors
over
but are
at -,
U.S.
Policy
do
for the dual
ment
ICRA.
reasons
standards.”
*75
at
Such a
133 S.Ct.
double standard
from the markedly
legis-
Aside
different
“virtually
history,
be
certain to
confu
I
would
sow
lative
reject
Nassar
for
sion” in
practical application.
its
Id. at
other
In
I
particular,
unper-
reasons.
am
-,
higher
at 2546. The
stan
notion
by
different
suaded
standards
problematic by
required
dards are made even more
for a
claim are
in light
retaliation
fact that
the status-based
retalia
of complaints
the number
filed with the
tory
outset,
conduct
have an
overlapping
will
EEOC. At the
it
odd that a
“symbiotic relationship,”
provision
as Justice Gins
of substantive law
af-
should be
berg
at -,
suggested. Id.
at
by
133 S.Ct.
fected
the number of administrative
simply
2535. Retaliation is
form of
complaints
another
made
agency responsible
to an
Jackson,
sex discrimination.
adjust
U.S.
under a statute to
such claims. If
I
In reaching this I note the to limit makes no sense relief no Nassar case inter for bearing claims, has in the very powerful substantial and pretation legislative Nassar, of the ICRA. his in like those in to also order limit tory behind the status-classification and frivolous claims. Other tools available. retaliation provisions of charge may Title VII dis discrimination be filed A. in is fundamentally cussed Nassar only penalty differ under the ICRA than legislative history ent perjury. may behind A court attorneys’ award fees ICRA. Nassar relied extensively brought as a sanction for claims bad congressional language difference Attorneys be faith. who file false claims are for subject tween causation claims to ethical See generally status-based sanctions. Sperino Thomas, and causation for retaliation F. A. Suja claims Sandra & arose Floodgates, after the enactment of Civil Fakers J. C.R. & Stan. at -, (2014). Rights Further, Act of 1991. 570 U.S. 133 C.L. there is no opinion). S.Ct. at 2529 that a (majority heightened evidence standard of causation would claims. A per- deter false light Rights of the Civil Act of willing son is not likely file false claim fundamentally the text of VII is Title now a higher substantive affected cau- different than text of the ICRA with sation standard. respect requirements the causation Further, status-based retaliation Under an in- cases. mere existence VII, motivating-factor Title test was a powerful crease EEOC claims is not explicitly incorporated branch, into tool. empirical status-based The executive discrimination, change through but the same an amicus brief filed the Unit- Justice, Department into the retaliation introduced section ed States did Here, argument of Title our supported VTI. caselaw has defined advance the causation in motivating-factor the status-based lower discrimina- standard dis- being motivating tion clause as factor crimination claims. See the Unit- Brief language and the Supporting same causation is used ed as Amicus Curiae States 7, Nassar, -, the retaliation Respondent section the ICRA. The 570 U.S. reasoning completely Nassar is thus 133 S.Ct. L.Ed.2d 2013 WL (No. *7, 12-484). Further, inapplicable here. *76 Nelson, Rights Realized? An Robert L.
EEOC—through guidelines—advocated its Analysis Employment Dis Equal Empirical motivating-factor U.S. standard. of Litigation Claiming Sys Comm’n, EEOC Com- crimination Emp’t Opportunity (2005). 663, tem, L. Rev. 673-75 Trans- 2005 Wis. pliance Manual: Directives EEOC 20, 1998), Metropolitan in https:// noted Gov (May 915.003 As No. mittal Crawford County, Nashville & Davidson web.archive.org/web/20040109231351/ ernment of “[fjear leading is of retaliation the reason https://www.eeoc.gov/policy/docs/retal.html stay voicing of Update] why people silent instead EEOC Manual 1998 [hereinafter Manual); concerns bias and discrimina their about (replacing section in the 846, 852, 271, 279, 129 555 U.S. S.Ct. Equal Emp’t Opportunity tion.” see also 2 U.S. Brake, (2009) Comm’n, (quoting L.Ed.2d Compliance EEOC Manual Retaliation, (Dec. 1991) (stating 90 Minn. L. Rev. at The 614.3(e), § 614-10 the higher “at least a standard is inconsistent with protected action must be the retaliation). Thus, system agency access to the remedial in the unfettered factor” the Jackson, responsible dealing espoused for Smith U.S. principally 1536, 1540-41, EEOC, discrimination, did workplace (2005). argument filing of itself about L.Ed.2d not raise its siphoning of re- frivolous claims and end, In the the Nassar rhetoric is once sources.32 examined, appears majority motivated to reduce the it was been “zeal majority The Nassar believed against of claims filed position judge the adminis- number retaliation in a better at -, employers.” 570 133 S.Ct. at impact of retaliation U.S. trative substantive ——, J., (Ginsberg, dissenting). The low filings. 133 2547 on See 570 U.S. law Yet, from will tend protection 2531-32. the Nassar Court retaliation S.Ct. at ered of early reporting of for the to defeat the harass no evidence the reasons had adjustment. prompt in retaliation The increase ment claims and their increase claims. III, Lidge, Necessity F. The may reflect an increased aware- Ernest claims And, Expanding Protection Retaliation availability of the remedies. ness Employees Complain Hos report rights civil claims Who About the failure Harassment, Environment U. may fear of retaliation continue be tile well (2014). ap The L. Rev. problem intractable that should Louisville proach in Nassar is inconsistent with by imposing higher exacerbated substan- Northern that Burlington Debo- observation tive law standard See causation. Grossman, provision “[interpreting Brake rah L. & L. the antiretaliation Joanna provide broad from retalia Rights-Claiming protection Title Failure VII as System, helps cooperation upon L. ensure 86 N.C. 897-900 tion Rev. (2008); Retaliation, Brake, accomplishment primary Deborah of Act’s L. which (2005) depends.” 126 S. objective Minn. L. 548 U.S. at [hereinafter Rev. Retaliation]; Brake, certainly 2414. And the flavor of the Beth Nelson & Ct. at Laura policy investigation of Equal expedite EEOC’s Emp’t Opportunity 32. See also U.S. Comm’n, relief, Theories Inten- charges injunctive Discrimination: seek retaliation Employment tional and Dis- Unintentional preserving unique has the interest of since it 1995) (“The (May crimination A-19 retalia- integrity process investigative its EPA, ADA, provisions [of tion and ADEA] preventing chilling willingness effect on provide exceptionally in- protection broad discriminatory protest of individuals to con- charges file dividuals who or otherwise aid duct.”). the EEOC’s It enforcement function. opinion Nassar reflect than majority approach does not different in Hulme- II Iowa section City Hampton, command Code protective more 218.1(2) provisions to broadly construe channels of communication that are ICRA. so essential effective enforcement of . the ICRA. reasoning, Based con- above we the reasoning clude Nassar should be *77 Regarding Instructions V. “Materi-
rejected under ICRA. The “because the ally Adverse in Action” Retalia- language of’ in the status-based discrimi- tion Cases. provision the ICRA nation should be A. Overview of Issue. Neither- the interpreted as the same the “because of’ nor ICRA federal requires plain- statute a language for retaliation claims. a showing tiff make of a “materially ad- language not identical in We used have in support verse action” order to a retalia- past dealing cases in our with causation Nonetheless, tion claim. the United States II, retaliation cases. Hulme 480 N.W.2d grafted Court has such Supreme require- a 43, Hampton, City at 554 N.W.2d at onto many ment Title VII and courts have 535, we used the lan- substantial-factor the Supreme followed Court’s lead. See DeBoom, in guage, but at N.W.2d Northern, Burlington at U.S. employed motivating-factor we the or (“In view, plaintiff S.Ct. at our a must played-a-part test. that a show reasonable ways to ap There are two address the challenged have found the action material- language in the parent difference of our ”); Alexander, ly Rachel K. adverse.... simply state One that the dif cases. Taking Defending Detour Around in the cases inconse language ference Burlington How Activity: Protected North- quential and the instruction in this Railway Santa Fe ern v. v. White Co. was sufficient on law. That is the case Unnecessarily Complicates Litigation of position taken re a commentator after Claims, Litig. Rev. Retaliation disparate view caselaw federal (2008) (describing 350-52 materi- Katz, retaliation causation. Martin The J. ally-adverse-action standard has been read Fundamental Incoherence Title VII: into state antidiscrimination statutes Making Disparate Sense Causation in courts). Law, Treatment 94 Geo L.J. not parties The this case do contest (2006) difference (indicating no there is a proposition that a the basic factor” between “substantial and “motivat materially retaliation case must show ad- but, factor” ing as formulations between is, instead, question The verse action. two, factor,” role,” endorsing an “a “a the trial court’s accu- whether instructions formulation.). motivating or “a factor” To rately necessary action described adverse difference, however, extent there is support retaliation claim under go we would with our more formu recent ICRA. DeBoom, lation 772 N.W.2d where Challenged B. Court Instruc- Trial issue of con level of causation awas The instruction issue, tions. district court’s de- ap not with tested the older required support actions” fined “adverse II, proach in Hulme N.W.2d retaliation claim the ICRA as Hampton, City follows: question level of where causation disputed by parties. [A]ny De- action which has conse- material test, -anything to an It is quences employee. Boom causation the extent “materially significantly dis- which do might person a reasonable dissuade According to advantage” employee. an supporting allegation making HES, actions or harassment. no court has ever of discrimination found amount to in the instructions to italicized It is not to such includes' but limited employment action. adverse dis- actions constructive charge, reprimands or other threats of paragraph the first Haskenhoff notes n reprimands, opportunities, change to be provides the instruction that in order complaints, being accusations false action, must adverse action investigated, being placed perform- consequences” employee. “material improvement plan, being placed ance Further, jury found Haskenhoff actions ad- probation or other which Thus, constructively discharged. versely position or undermine the affect sufficient plainly legally found there was employee. It also an em- includes *78 by the As a re- employer. adverse action negative ployer seeking out feedback sult, flawed, to the extent instruction condoning employee encourag- or or argues Haskenhoff it is harmless. complain ing employees other about Au- D. EEOC Federal Caselaw and You judge her. whether an action should thority Scope “Materially of Adverse sufficiently from of point adverse in Action” the Context Retaliation of of a person plain- reasonable view Claims. positions. tiffs added.)
(Emphases
1.
to retali-
respect
Introduction. With
ation,
states that it is an unlawful
Title VII
following
had
instruc-
HES
offered
“to
employment practice
an employer
tion on adverse action:
any
agаinst
employees
discriminate
of his
employment action” is an
[A]n “adverse
practice
...
opposed any
he has
because
detrimentally
action that
affects the
employment practice
an unlawful
made
terms, conditions,
privileges
or
or em-
subchapter,
this
or
because he has made
ployment. Changes
working
in duties or
testified, assisted,
charge,
participated
or
no materially sig-
conditions
cause
any
proceed-
in an investigation
manner
disadvantage to
employee
nificant
ing
subchapter.”
or
hearing under
employment
are not
It
adverse
actions.
2000e-3(a).
§
“to
The
dis-
phrase
U.S.C.
includes,
to,
not limited
employ-
but is
criminate” is
defined
the statute.
ment
such as termination of em-
actions
Congress
courts.
question
left that
for the
ployment,
ac-
promote,
any
failure
or
provision
Unlike the status-discrimination
discourage
tion
a reasonable
VII, however,
provi-
of
Title
retaliation
making a
employee
complaint
of
“terms,
phrase
sion
not contain
does
Giving
per-
harassment.
conditions,
privileges
employment.”
or
of
plan
formance
or
improvement
negative
2000e-2(a).
§
of
presence
U.S.C.
The
employment
is not
review
“adverse em-
“terms, conditions,
phrase
privileges
ployment
they
unless
action”
are later
employment”
status-discrimina-
as a
employee’s
used
basis
alter the
VII,
tion section Title
when it is exclud-
employment
in a
terms
conditions
provision,,gives
ed in
rise
the retaliation
Both
way.
detrimental
the action and its
Congress
made a
inference
has
context must be examined.
deliberate choice.
of the
as-
C. Positions
Parties. HES
guidelines.
2.
The EEOC
serts the district court’s instruction was
EEOC
question
has
consti-
inaccurate because
includes actions
confronted
what
support
action sufficient
tutes adverse
statute’s remedial mechanisms.”
claim
Title VII
revi-
Update-,
retaliation
EEOC Manual 1998
see also Rob-
Co.,
manual
compliance
337, 345,
to its
issued
inson v.
sions
Shell
Oil
U.S.
Update.
See
843, 848,
(1997).
1998.
EEOC Manual
117 S.Ct.
The the “ulti adopted by test mate action” Burlington Northern Prior case. *79 Ledergerber Eighth v. the Circuit in Stan to the United Supreme seminal States (8th 1997), 122 gler, F.3d 1142 Cir. and the Northern, Burlington Court of case the employment” “terms and of test conditions splintered federal courts question the of by the Circuit in embraced Fourth Mun plaintiff what a show to support must a v. day Management Amer Waste North retaliation claim Title VII. under ica, 1997). (4th 126 Cir. F.3d 239 EEOC Henderson, In Ray v. the Ninth Circuit Update. According 1998 to the Manual approaches to differing outlined the retali EEOC, “unduly such tests were restric ation in claims the various circuits. 217 recognized tive.” Id. the EEOC While that 1234, 1241-42 (9th 2000). F.3d Cir. Accord slights annoyances “petty trivial First, Tenth, ing Seventh, to Ray, the actionable,” degree the stressed Eleventh, all an and D.C. Circuits “take “goes harm suffered the individual expansive type view” actions that liability.” issue of Id. damages, can ac employment be considered adverse- Dalton, (quoting Hashimoto 118 F.3d 1241; tions. Id. Wideman v. at see Wal- 671, (9th 1997)). 676 Cir. Stores, 1453, 1456(11th Mart 141 Cir. F.3d justified approach The its EEOC based 1998); Indiana, 1327, 1334 Knox v. 93 F.3d text, text policy. On the EEOC (7th 1996); Corneveaux v. CUNA Cir. Mut. emphasized that the status discrimi- while 1498, (10th Grp., Ins. 76 1507 Cir. F.3d nation of it is Title VII states unlawful 1996); Boston, 13, Wyatt 35 F.3d 15-16 against person respect discriminate (1st 1994); Soc., v. Am. Cir. Passer Chem. “terms, conditions, privileges em- (D.C. 1991). 935 F.2d Cir. In ployment,” provision the retaliation Title contrast, Ray the Second and Third cited has no such limitation. EEOC Manual VII holding Circuits as action is some adverse § Update] see 2000e-2. U.S.C. thing “materially affects the terms policy, emphasized employment.” the EEOC and conditions of 217 F.3d On 1242; Pittsburgh, 120 primary purpose pro- antiretaliation at see Robinson v. junfettered (3d 1997); is to Cir. visions access F.3d Torres v. “maintain[ (2d Pisano, Thus, Burlington Cir. 116 F.3d as Northern Court repeatedly emphasized, the Fifth Finally, Ray court “context matters” noted re “act Eighth adopted had the most that would be immaterial Circuits because test, namely, “ultimate em some is material in others.” strictive situations required Id. 2416. ployment Supreme test ac at S.Ct. at The action” which hiring, significance of firing, promoting, emphasized any such and Court “the tions demoting given support depend a retaliation claim. act retaliation will often 1242; see v. Eastman upon particular F.3d at Mattern circumstances.” Id. Co., The inquiry specific F.3d fact to the work- Kodak 1997); place pressing 1144. Ledergerber, F.3d at and to the individual plain implication claim. retaliation Supreme In Court entered except marginal the most Northern, fray Burlington at U.S. cases, of their fact because intensive na- 53, 126 2405. Burlington Under S.Ct. ture, retaliation claims should sum- survive Northern, plaintiff employ show must mary judgment. adverse, materially ment action is “which might Posi-Burlington in this means it context well Northern federal Burlington dissuaded a reasonable mak caselaw. Northern some- worker ing or of discrimina of a in the supporting charge thing employment bombshell matter, tion.” at 2415. In so general Id. at S.Ct. law As there world. “terms, rejected the concluding, question the court to be seemed little conditions, Northern, more Burlington benefits” and “ultimate retaliation percolat summary judgment. decision” standards cases would survive Further, ing through the federal courts most of post-Burlington Sec ond, Third, Fifth, Eighth recognized Circuits. Id. Northern federal caselaw 61-63, 126 determining 2411-12. has suf- whether treatment, “terms, disparate fered con- Northern, Burlington Supreme *80 ditions, of privileges employment” test general, ap a adopted Court functional applicable was not in retaliation cases. The of proach provision retaliation Title widely recog- lower courts federal came to 68, 126 See 2415. The at VII. id. S.Ct. cases, nize a retaliation lesser stan- Burlington tied material Northern Court Lockhart, applies. See v. 629 dard Powell adversity of the directly the purpose 23, (D.D.C. 2009) F.Supp.2d (holding 41 provision retaliation of Title VII—encour performance placing employee im- Id. aging access to Title VII. a unfettered t provement plan support insufficient 62-63, 126 at 2411-12. determin S.Ct. claim, disparate sup- treatment but could ing “might action employer’s whether the port of retaliation claim because lesser a have dissuaded reasonable worker well standard). charge of making supporting from or a discrimination,” Burlington emphasized Northern the Court instructed question per proper from “the test a retaliation “ma- be determined case was person might of a in the terial action” spective reasonable which “well adverse have from plaintiffs position the circum dissuaded a reasonable under all worker 71, charge making supporting stances.” 126 Un or S.Ct. at 2417. discrimi- 68, Northern, U.S. at 2415. Burlington trial courts nation.” 548 der from required specific Burlington ap- facts This Northern to examine the feature cases, highly pears plaintiffs to be lost some which position, someone “terms, impact on inquiry. require tangible id. seem to individualized See conditions, 587, (6th privileges employment.” Appx. 2009); Cir. see also Corrs., Dep’t Mo. Vega See Sutherland v. Hempstead Dist., Free Union Sch. 2009) (8th (2d (rejecting 2015) F.3d Cir. F.3d (finding Cir. adverse action when being assigned combination absent stu benefits, dents, “had no in pay, salary, reductions temporary reduction, paycheck And, prestige”). cases, or in other notify the test failure to claim curriculum cumu applied by high. seems to too courts be amount to latively “material adverse ac example, tion”); For in Deleon v. Kalamazoo Alvarado Express Corp., v. Fed. Commission, County (9th 2010) Road Cir- Fed.Appx. Sixth Cir. (holding suggested cuit in a retaliation case that delayed personal paychecks, time, denial of question was whether reassignment criticism performance, work and shift pay loss of intol- “objectively change actions); without were adverse Shannon v. person. erable” to Telecomm., a reasonable Inc., 739 F.3d BellSouth 292 F.3d (6th 2002) Cir. This formulation Cir. (stating 715-16 reassign demanding action, seems be a Bur- than more ment alone adverse but reas lington signment, together Northern standard where denial overtime per- that a plaintiff must show reasonable and allocation of assign a more difficult “might son van, well been ment deterred” in an unairconditioned amounted supporting filing charge. action); Ridley adverse v. Costco Whole 130, 135 (3d sale Corp., Fed.Appx. Many post -Burlington cases Northern 2007) (holding while finding verdict recognize totality that the of the circum- retaliatory^' was not demotion combination stances must be considered when demotion, of other events including after “might well have deterred” standard warehouse, counseling transfer to notices applied bright-line declarations about incidents, for minor failure to investi whether certain actions were sufficient gate Burlington these incidents satisfied generally insufficient inappropriate were test); generally Northern see Joan M. Sav Burlington example, Northern. For age, Adopting Ap Deterrence EEOC Northern, following Burlington Fifth proach to Adverse Action Employment Waco, Thompson Circuit in that a held Prong in Prima Facie Title Case VII change in job responsibilities not auto- did Retaliation-, 46 B.C. L.-Rev. matically qualify impact, adverse but (advocating approach). case-by-case broad upon action depending could adverse jury’s Burlington recognized view the facts. F.3d Northern *81 (5th 504-05 petty Cir. minor and sim- slights, annoyances, ple good enough not to lack of is manners A concept related certain actions sup- action to establish material adverse sufficient, individually not might but port Some a federal retaliation- claim. cumulatively may to ad such actions arise regarded courts have as an this declaration purposes supporting action for a verse laundry-list approach to a invitation take example, retaliation claim. For in Sanford declare, law, as a matter of that cer- Manor, Baptist v. Main Street Church amount types tain actions to mar never Inc,, the recognized Sixth Circuit that al cases, federal terial Other adverse actions. though might some of the incidents not however,, to more sensitive context. action, rise “the level adverse together incidents might August taken 5. EEOC dissuade enforcement making sup reasonable or and related is- guidelines worker .retaliation porting charge.” August Equal Employ- discrimination sues. In Fed. analysis applies deter- A its fact-driven issued Commission Opportunities ment employer ac- challenged if mine on Retaliation Guidelines “Enforcement tion(s) likely to would be question Issues,” previ- its superseding and Related To opposition. participation deter EEOC in 1998. See guidance ous Enforce- applying Bur- lower courts extent some and Relat- on Retaliation Guidance ment found some lington Northern have 25, 2016), https://www. (Aug. ed Issues actions can never be of the above-listed eeoc.govfiaws/guidance/retaliation- ac- protected enough deter significant EEOC guidance.cfm [hereinafter Enforce- concludes tivity, Commission gen- guidelines The new Guidance]. ment contrary categorical view such Burlington Northern erally embraced reason- context-specific analysis, broad of retalia- commission’s view provided the ing, specific examples endorsed Northern post-Burlington tion in a claims Supreme Court. Id. II.B.l. world. Id. empha- things, EEOC Among other question also addressed the The EEOC could of incidents sized that combinations re materially adverse action of whether adverse cumulatively amount to a material Id. The employee. harm to the quired incidents, con- if even the individual action According not. Id. concluded did EEOC alone, qualify. not Id. The might sidered EEOC, of harm suffered degree to the that under emphasized further EEOC the issue “goes to by the individual Northern, retaliatory potential Burlington liability.” (quoting Id. Hashi damages, not in context considered incidents must be Dalton, 118 F.3d moto Id. isolation. 1997)). question of The EEOC addressed distinguished be- Finally, the EEOC might to the level type of actions rise what prove required tween the standard II.B.2. action. Id. of a material adverse claim and the stan- hostile environment EEOC, most obvi- According “[t]he to the As noted retaliation. Id. dard show actions are denial types of ous adverse EEOC, for establish- threshold “[t]he hire, job denial promotion, refusal retaliatory harassment is different ing demotion, benefits, suspension, and dis- discriminatory hostile environ- than for say, on to the EEOC went charge.” Id. But ment.” Id. II.B.3. may in- actions types of adverse Other EEOC, harassment to the According threats, warnings, clude work-related claim support a retaliation sufficient transfers, negative or low- reprimands, pervasive to be severe does need evaluations, presti- to less transfers ered terms and conditions enough to alter the loca- or work gious or work desirable employment. tions, types of adverse any other Re- E. Caselaw Retaliation State in the circumstances treatment quirements. any state party Neither cited person a reasonable might well dissuade constitut- question on the what caselaw *82 activity. in engaging protected from a support action sufficient ed adverse Id. have been able retaliation claim. We pattern in the state case- no clear discern the determination The EEOC concluded law. has made the neces- plaintiff of whether a impact of recognize the action to state cases of material adverse Some sary showing instance, Northern. For Burlington fact driven. claim was support a retaliation County Board v. Broward EEOC, Donovan According to Id. Commissioners, appeals York, court of Albunio City a Florida New the court Burlington that recognized Northern emphasized provision the retaliation to discrimina- ordinary approach found “broadly in be construed favor of discrimi cases too in the context of limiting tion plaintiffs, nation to the extent.such a con 458, (Fla. claims. retaliation 974 So.2d struction possible.” 472, 16 N.Y.3d 2008). Dist. Ct. The Donovan court App. 244, 135, (2011); N.Y.S.2d 947 N.E.2d Burlington applied broadened North- Roa, 529, see also Roa v. 402 N.J.Super. ern standard. Id. 930, (2008) (adopting A.2d Bur case employs Burlington lington
Another that Northern approach). At least one contextualization is Ellis v. however, Northern Jun- court, state has characterized the Market, Inc., 44 gle Jim’s N.E.3d 1034 Burlington inquiries Northern as ordinari (Ohio Ellis, 2013). Ct. an App. In ly posing questions of law. Montgomery In depart- transferred from the seafood was Park, County v. Texas Supreme Court into a bagging position report- ment after' job changes position held that in a did ing workplace Id. at 1052. harassment. support a retaliation claim. 246 S.W.3d plaintiff produced that the trans- evidence (Tex. significantly job her respon- fer diminished F. Iowa Caselaw Em “Adverse learn sibilities and she would fewer ployment Action.” We have considered bagging position. skills Id. at 1053- meaning employment “adverse ac The Ohio court held that she 54. raised 33in tion” limited number In cases. of fact with respect issue whether the most of them have amounted to a “material we indicated what the transfer adverse vague her at 1054. employer. employment action” Id. term “adverse action” might include, not what excludes. In the Similarly, in Depart v. Illinois Hoffelt pre-Burlington Northern case of Channon Rights, plaintiff Human claim ment of Service, Inc., v. United Parcel noted we ing retaliation offered evidence she variety actions, “[a] wide some called names treated demean subtle,” blatant, can qualify some as “ad manner, ing assigned position actions.” employment verse 629 N.W.2d post,” punishment as “a known had (Iowa 2001). Indeed, requests for we indi compensatory her leave de cated that they employ nied under circumstances which whether adverse granted in ment “will past. Ill.App.3d normally were action occurred de 310 Ill.Dec. 867 N.E.2d 21 pend on the facts of each situation.” (2006). Northern, Citing Burlington language 862. fact-specific This is consis Illinois court that under concluded the cir tent with in the the strain federal law that cumstances, might she “well have dissuad Northern, recognizes, Burlington as did making reasonable ed a worker is to the determination be made Id., supporting charge of discrimination.” all of the facts and circumstances. See 548 Ill.Dec. at 20. 867 N.E.2d 71, 126 U.S. 2417. cited with We approval cases that found loss of title and emphasized Another state court has transfers, assignments, re broadly committee need construe retaliation legislation. supervisor amounting in its provision rights civil duction status as Burlington employment action.” See Northern makes it clear that the "adverse 548 U.S. at Nonetheless, might action I adverse re- S.Ct. at 2408. will use pre-Burlington and thus the a retaliation the nomenclature used our lated *83 precedents. case must show "adverse action” rather Northern than Ray, 217 cited further Chan employment actions.” We to “adverse that federal proposition for the F.3d non, 863-64. at N.W.2d broadly to split on how. circuit courts were “[cjhanges in Yet, that we have indicated . action.34 employment determine adverse no that cause working conditions duties Harris, at 679. No- 679 N.W.2d Estate of disadvantages significant materially however, Harris, did Estate we where employment not adverse ac- employee precisely appropriate what describe Id, course, Of the Channon at 862. tions.” determining an was for “adverse standard employment that an “adverse formulation for of a re- purposes action” “materially significant abe action” must , taliation claim. . id,, circular disadvantage,” is somewhat And, retaliatory discharge it is inconsistent very helpful. not Our case last In Boyle, Burlington Northern standard. pr e-Burlington Northern case however, when the Channon, we In the district Boyle, concluded 741. 710 N.W.2d tending to evidence show against plaintiff offered on the court found demotion, ridicule, a constructive faced underlying appeared she harassment claim and lawsuit, the hostility her open about this resolution to believe rendered finding a support sufficient record was alternаtive claim that she was plaintiffs at 866. employment action. Id. of adverse discharged making for her retaliation complaint moot. Id. at We reversed. 750. Northern Iowa pre-Burlington The next however, Boyle, In we Id. at 752. did not Harris, is Estate retaliation case explore requirements have occasion case, court 673. that district N.W.2d discharge to em- retaliatory other than punch remarkably that a rather concluded discharge claim phasize retaliatory that by supervisor that to the chest delivered depend upon not the merits did not an ultimately killed complaint. Id. underlying employment action” sufficient “adverse Id. support a retaliation claim. at We balance, recognize that On we should reversed, for noting, pr e-Burlington Northern adverse-em- our simply whether the action was determine cases ployment-action did n an act of machismo or should be consid in- Burlington key Northern benefit something Id. at 679. ered more sinister. material adverse sight test Harris, of' claim action in the context retaliation we analysis In our Estate of person would favorably case was whether a reasonable cited a district court federal utilizing complaint from likely be proposition moving employ deterred for the terms, procedures, and not familiar might ee to an isolated' corner be sufficient conditions, 678; privileges of employment support.a claim. retaliation Co., applies disparate treatment Mfg. 511 test see Harris Richards 73,126 (W.D. 1981), 1193, 1203 at 2417. cases. See 548 U.S. S.Ct. F.Supp. Tenn. aff'd Thus, cases like Channon embraced what part in-part, rev’d F.2d 811 claim is focus on hostile-environment 34. We cited for the also Foods Farmland employment,” materially employ- while proposition “terms conditions adverse claim is whether the the focus on a retaliation variety ment action embraces a wide facts. reasonably em- might deter an well at 742. Foods action Farmland involved environment, rights ployee pursuing civil claim. hostile a retali- a claim of a Northern, Burlington 548 U.S. at ation claim. Id. substantive standard 2415-16, Yet, application both establishing stan- a hostile-environment claim involve, generally inquiries. See establishing factual as that for dards not the same .retalia- VII, McElroy, at 498-500. example, 637 N.W.2d claim. For Title tion *84 recognizes otherwise, federal is wrong now they law should be overruled. I test. specifically reject would thus approach of mostly the' pre-Burlington Northern Although our superseded cases reflect Eighth Circuit a cases indicate mate- law, they generally recognized federal still rial adverse action must tangible include of subtlety workplace and need employment action or must affect terms to consider factual issues to em- related of employment. conditions See Scott ployment light in totality claims Rosenberg Jeffrey Lipman, & Developing Channon, facts and circumstances. See a Evaluating Consistent Standard a N.W.2d at Our cases reflect further for Case Under Retaliation Federal and State desirability of jury determinations of Civil Rights Statutes and State Common disputed in factual the retaliation issues Law Claims: An Iowa Model the Na- Harris, context. See Estate 679 N.W.2d for tion, (2005) 53 Drake L. Rev. at 678. (urging adoption of Ninth Circuit standard outset, At the G. Discussion. we are Ray). EEOC, by As stated in addi- obliged to broadly construe the ICRA tion to the most obvious adverse actions its purposes. effectuate Iowa Code such as of promotion, denial refusal 216.18(1). § noted, already As has been hire, benefits, demotion, of job denial sus- maintaining clear for pursuing channels pension discharge, is complaints regime critical to the estab- [ojther types of may action in- adverse Robinson, by the ICRA. lished Cf. threats, clude warnings, work-related (stating pur- U.S. at transfers, reprimands, negative or low- pose provision of retaliation to maintain evaluations, ered presti- transfers to less statutory “unfettered access remedial gious or work desirable loca- mechanisms”). work tions, any types other of adverse accept both parties The the notion that treatment the circumstances we must is determine what a material ad- might a person well dissuade reasonable for purposes verse action a retaliation activity. from engaging protected I claim the ICRA. little hesi- EEOC II Guidance B.2. embracing approach tance Bur- Enforcement Northern, EEOC, lington the bet- I agree Burlington would also with ter reasoned caselaw the test is Northern, EEOC, and the better rea- might whether a reasonable soned caselaw that the determination of filing by from complaint deterred a a whether has evidence introduced question. conduct in purpose a re- sufficient to establish material adverse keep taliation claim is the access will, in specific action is fact most rights open. channels of civil law clear and cases, course, generate question. jury Of The test retaliation for should be tied its petty incidents isolation do suffice to purpose. fundamental materially show impact, adverse but de- termining petty what is so for The test adverse for material action person not deter a from utiliz- purposes of reasonable retaliation thus distinct ing usually complaint procedures the test for an adverse best purposes by action a mix disparate-treat- decided diverse EEOC, experience ment real claim. As world rather than stated Johnson, question tangible goes court. Bell v. F.3d harm to dam- Cf. 2002) ages, retaliatory (holding con- 603-05 liability, unless prior retaliatory To suggest truly duct. the extent our cases claimed action is inconse- *85 See, Johnson, e.g., First v. quential, plaintiffs Amendment ferent.35 Walker (D.C. 2015) (holding go jury); Gallagher F.3d Cir. claim should (2d 1998) of in performance denial rise rat- Delaney, 139 F.3d Cir. deserved actionable); Shah, judges usually ing may “in that federal live be Porter (noting 2010) (D.C. (stating segment enormously broad F.3d a narrow of spectrum” performance interim unac- socio-economic of American “borderline generally experi- ceptable” materially lack current not adverse when de- “the real-life made, in interpreting orally, sexual livered no written record was required ence subtle superseded year on nu- of dynamics workplace, of the and was end based review); ances, generally com- perception, implicit see EEOC Manual 1998 subtle munications”). § Update precisely n.113. is 5.B.2 This of kind contextualization for in Bur- called embrace the notion that while We should Northern, lington noted a which that might act suffi provide each individual night transfer to a shift be inconse- would action, of cient material evidence a adverse some, for quential for but not Of others.36 relatively slights a petty combination course, an insistence on contextualization cu poses Ordinarily, the a issue. different two-way plaintiffs is a It applies street. weight multiple repetitive or mulative as as well defendants. generate question will a fact actions general, Sanford, Fed. In jury paragraph determine. the first of the 599; 90; Vega, Ridley, accurately Appx. captures 801 F.3d instruction the test Fed.Appx. at material action 135. adverse in the retaliation emphasizes context. It that material ad- I Finally, reject laundry-list would likely verse action is action that is to deter notion various actions person filing a reasonable a com- from negative or reprimands job such evalua- as legal plaint. That is the standard I would tions, pay, loss of or transfers without adopt under the ICRA. “snubbing” may categorically regarded be instruction, arising paragraph as never to the level of material second however, negative job problematic. adverse action. Take the eval- is It offers the un- some, job setting, negative qualified In a statement material adverse uation. might nega- A action list of A evaluation matter all. includes a actions. reason- ap- interpret job tive evaluation for an able the instruction could might produce cyn- a if is proaching retirement mean one the listed actions grunt, present, ical but not much On the action more. material adverse is neces- hand, law, negative job sarily present other a evaluation as a end matter above, But, economically struggling story. house- as head of stated test person hold the work whether a who anxious climb reasonable the shoes provide plaintiff might or ladder to a better life for his be well deterred might family reasonably quite pursuing rights her dif- from civil claim. con- feel a In context, study, ninety-five “snubbing” depending 35. one In laws students at on the University surveyed of Cincinnati easily regarded by were as could factfinder job dis- about what kind of actions would something might well have dissuaded filing rights them from com- suade civil making support- or reasonable worker from Retaliation, plaint. Sperino, See 67 Fla. L. ing charge See B. Glenn of discrimination. survey, eighty percent 2045. In the Rev. at George, Revenge, 83 L. Rev. Tul. negative that a either indicated evaluation (2008). might pursuing dissuade them potential claim. Id. question, sidering Burlington charge verdict upon plain- was based us, “context Northern teaches matters.” tiffs claim of sexual harassment found 69, 126 Though Id. at S.Ct. at 2416. question each one or it was based on whether actions, context, separately listed plaintiffs claim ques- retaliation in cumulatively, might rise to “adverse tion two. to cure order the defect in the *86 if Burlington material action” it the instruction, met retaliation we to must be able “might Northern test it a that well deter” jury conclude the a relation- found causal person in the of the reasonable shoes ship-protected activity giving rise to the protected engaging activi claim retaliation the dis- constructive a that ty, jury compelled is make charge.
finding as the trial court’s instruction however, form, From jury the verdict might Id. suggest. possible is jury the harass- believed sexual this
Ordinarily, instructional error would one, question ment in and not retaliation prejudicial require be vacation of the two, question causally the related verdict for Hask- and remand a new trial. so, discharge. jury constructive If the however, enhoff argues, any that error is part general could have of awarded the jury’s finding cured the verdict damages upon award in this case based the discharged constructively Haskenhoff was faulty retaliation instruction. Farmers’ See Plainly, discharge a HES. constructive Stanton, Nat’l Bank Oskaloosa v. of amounts a action. 1 adverse material 433, 438-39, Iowa N.W. al., Employment Andrew J. Ruzicho et (1921). Further, say we cannot as a matter 6B:7, (data- § Practices Manual Westlaw a law Haskenhoff mate- established 2017) (“An updated base Mar. actual rial action adverse which we have declared discharge constructive remains the clear- ordinarily involves fact-based determina- action.”). example est an adverse result, agree tion. As a I judgment the district court must be and the
But, reversed pointed Chief out Justice for a matter remanded new trial. concurrence, Cady’s problem there theory jury’s with Haskenhoffs Regarding Instructions Con- VI. discharge verdict on constructive remedies Discharge. structive any potential flaw in instructions on questions retaliation. On number one and A. Dis- Overview of Constructive two, jury charge. in the application answered affirmative the constructive proved discharge rights that Haskenhoff her case sexual to civil claims doctrine respectively. has harassment and retaliation been controversial. See Mark S. three, question Kende, jury Deconstructing On number an- Dis- Constructive question charge: The Misapplication swered the affirmative the Construc- subject Discharge Employment whether Haskenhoff to con- tive Standards in Remedies, discharge. response ques- structive In Discrimination 71 Notre Dame four, (1995) tion L. jury gen- number returned a Rev. [hereinafter $100,000 (“[B]y forcing eral verdict of vic- damage lost discrimination Kende] benefits, discrimination, wages $300,000 continuing for emotional tims endure distress, $1,000,000 discharge approach present [of the constructive Ti- majority value of of federal courts] emotional distress. contravenes purposes.”). tle VH’s find a constructive While the did however, case, discharge, parties it is not from the do not clear verdict form jury’s whether the constructive-dis- whether doctrine of construe- contest given a reasonable chance resolve but instead battle discharge appliеs
tive problem. of construc- contours over substantive constructive discharge. In exploring
tive C. of the Positions Parties. recognized that while con- discharge, we HES. HES asserts the constructive discharge generally structive demand- discharge erroneous doctrine, instruction was be- stringent too constructive ing cause assertion “a discharge may simply sophisti- test really want “need providing pro- cated means undeserved Further, quit.” claims HES instruction who discriminate.” employers tection injected subjective improperly views at 78. Further, HES, into issue. Haskenkoff Challenged B. Instructions on Con- City citing Meter Industrial Mason Van *87 Discharge. jury The in- was structive Commission, Rights Human 675 N.W.2d discharge fol- on constructive structed (Iowa 2004), argues district the not employer really “The need want lows: failing to “con- instruct that court erred n quit.... employee to employee the ditions will not considered intolerable be subjected that she was to sexu- must show given employer the has been a rea- unless retaliation made or which al harassment to the problem.” sonable chance resolve her there no chance for fair believe footnote, challenges Finally, in a HES the at Homeland.” treatment to in- repeated reference “fairness” in the struction. sought jury to instruct the HES had respect 2. to the in- With “the had to show Defen-
that Haskenhoff Haskenhoff. fact regarding “the struction that em- forcing the intent dant acted ployer really employee not need want resigna- or quit, to Plaintiff Plaintiffs argues quit,” to that this lan- Haskenhoff reasonably tion was a foreseeable result Meter, Van supported by guage is Additionally, actions.” the Defendant’s at 512. the instruction did While jury to instruct the as follows: sought HES fairness, refer to Haskenhoff states the “quit An cannot sue” Meter case to the Van repeatedly referred to claim have been and then construc- concept of fair 511-12. treatment. Rather, tively discharged. the conditions respect question With whether resignation giving to the must be rise erroneous instruction was because sufficiently extraordinary egregious subjective feelings, to her Hask- reference of a to overcome the normal motivation instructions, enhoff taken as a *88 universally accepted almost the test of that 801, (5th 1990). F.2d 805 Cir. discharge whether there is a constructive working is whether conditions are suffi- Easton, In Suders v. Third Circuit ciently that per- intolerable reasonable held it was employee whether the relevant in position employee son would explored alternative avenues resolve the 2 compelled resign. have felt See Chris- alleged resigning, discrimination before topher Bello, Litigating Wrongful Dis- but that “a failure do so will defeat a (2013— n.3, charge § Claims 7.62 at 7-260 of discharge.” claim constructive 325 F.3d cases). (collecting Supp.) 2014 Cumulative 432, (3rd 2003), 445-46 Cir. vacated on reasonable-person generally The is an test grounds other sub nom Police Pa. State v. objective by qualified but is 129, test* Suders, 2342, 542 124 U.S. 159 person notion that the must be reasonable (2004). 204 L.Ed.2d Other federal circuits one of position employee.” “in attempt found failure prior the.problem quitting resolve Intent to create hostile environment. only by factor to be considered the fact split The federal cases under Title are VII determining in finder whether construc question on the whether a discharge present. tive Lindale v. Tok discharge prove constructive case must 953, (7th F.3d Corp., heim 145 956 Cir. employer majority The view is that intent. 1998); Entm’t, Inc., v. Stern 909 Levendos discharge if occurs even constructive 747, 1990). (3d F.2d Cir. A case out employer 753 to create the intol did intend conditions, yet position, the First took another See, Circuit working e.g., erable Ram job Denver, indicating staying on the sey Cty. .that while City v. & 907 F.2d Watson, 1004, (10th seeking required except 1990); ex 1010 Cir. v. redress Na cases, (9th ceptional v. Ins., 360, Lee-Crespo Schering- 828 F.2d 361 tionwide Cir. Inc., 34, 1987); Plough 354 F.3d 35 Santiago, Alicea Rosado v. Del Garcia Caribe (1st 1977). 2003). (1st 114, One court found such 562 F.2d 119 On the Cir. an Cir. hand, employee cor exceptional other eases when an some hold that case See, was immi- proved. e.g., rectly intent must be Martin v. termination believed her courts, however, general Hosps., 276 have followed Chi. nent. v. Univ. EEOC See, 2002). 326, e.g., v. approach Cir. in Pollock. Charles F.3d 331-32 Univ., 17, Regents N.M. State 150 N.M. potential One court noted federal 29, (N.M. 2010); App. 256 P.3d Ct. plaintiff must show tightrope Ballinger Corp., Klamath Pacific discharge claim. In a constructive proving (1995); P.2d see .App. Or Press, Inc., Fourth Daily Bristoio v. Tacoma, 114 Binkley City also employee an must that while Circuit noted (1990). P.2d Wash.2d working are intoler his conditions show Trans able, to his A final case of interest is Marten his for reinstatement “desire Industry, portation, Department claim Ltd. v. intolerable position belies the Labor, Relations, his & Human 171 Wis.2d underlay resignation.” 770 conditions (Wis. 1992), 1251, 1256(4th surely Ct. App. It is N.W.2d F.2d rev’d, re requirement employee that a Wis.2d true court, (1993). in a not employ in an case employed main intolerable Wisconsin commentators, declared that “re concept ment environment is a tension ed quiring stay put victim to a discrimination with itself. ‘vic mitigate damages requiring like [is] E. Caselaw on Constructive State being legal malpractice to continue tims’ Discharge. A courts have number state negligent in order lawyer serviced their expressly considered whether an improve give lawyer the chance to remedy must have a chance to reasonable 199; Arthur his or her skills.” Id. see may the situation before a of fact finder Sutherland, Young & Co. v. 631 A.2d constructively find (D.C. 1993) (explaining that when Pollock, discharged. held the court intolerable, working an em conditions legal requirement there was no that an need not remain at ployee them and *89 employee complain must of harassment tempt to them to recover resolve order in all cir happens and wait see what discharge); also constructive see at Pollock cumstances. S.W.3d The 761. Kende, Dame L. at 53 n.78. 71 Notre Rev. complain court that a reasoned failure case, Transportation The Marten howev may employee show not construc the was er, by the Su was overruled Wisconsin Id. tively discharged, but in all cases. preme opinion. Court in a Marten divided cases, according at In some to the 765. Indus., Labor, Transp., Dep’t Ltd. v. & of cоurt, complain indicate may failure Relations, 1012, 501 Human 176 Wis.2d other factors at other than play were (1993). N.W.2d tolerability of the working the conditions. on courts must F. Iowa Id. court concluded that Caselaw Constructive Discharge. totality pre-Suders of consider the the circumstances the case Van Industrial, determining working conditions Meter we considered construc- whether were, fact, discharge rights Mis a local intolerable. Id. Later tive human however, cases, present- court ordinance. 675 at 505. appellate souri N.W.2d We legal parameters approach seemed to abandon the Pollock ed a basic the outline claim, discharge in favor of a of a constructive which reasonable-chance-to-resolve at requirement. appear Davidson have been uncontested. Id. See DeWalt v. Serv./Air, (Mo. case, Inc., Citing Eighth 510-12. an Circuit we 398 S.W.3d 2013); Dep’t App. Ct. Gamber v. Mo. stated “conditions will not be consid- Servs., has employer Health & 225 S.W.3d ered intolerable unless Senior (Mo. given state to resolve been reasonable chance App. Ct. Other Watson, problem.” 361; But we Id. at 511. balanced 823 F.2d Rosado, at Alicea contrapuntal this observation with the dec- 562 at F.2d 119. sentence,
laration in
stating,
the next
“On
Objective
2.
Meter,
test. In Van
hand,
the other
need not
employee
stay
we stated that the standard
if he or
reasonably
she
believes there is no
objective
courts,
including
most
possibility
employer
respond
will
fair-
Supreme
United States
Court in Su-
Thus,
ly.”
ambiguous
Van Meter
on
ders, have made similar statements. 542
question
employee
whether
suf-
And,
U.S. at
no
fering intolerable discrimination must re-
objective
party here contests the
nature
main
job
on the
while
inves-
discharge
constructive
claim.
event,
tigates. In any
Van Meter is not
parties
entitled to stare decisis because the
Therefore,
suggestion
in the instruc-
agreed on
the elements
constructive
tion that
discharge
constructive
may be
discharge in their briefs before the court.
if
shown
subjectively be-
See, e.g., Hemingway,
matter of that the law remain in intolerably workplace hostile to allow attempt remedy
problem. Conclusion.
VIL reasons, general-
For I the above
ly approach conclude district comported except
court with Iowa law
respect regarding to the instruction mate-
rially required sup- adverse conditions reason,
port For this I retaliation. too judgment
would reverse the district
court trial. and remand a new JJ., Hecht, join this
Wiggins and part part.
concurrence dissent C.J.,
Cady, joins part. Iowa, Appellee,
STATE TIPTON, Appellant.
Eddie
No.
Supreme Court Iowa. 23, 2017
Filed June
Rehearing July Denied notes talking office and him Howes’s overheard planned that she had “further discussion” phone. recently on his Haskenhoff had cell complaint, about the but Haskenhoff stat- marry told Howes she intended her investigation go she ed did want the boyfriend. long-time Haskenhoff overheard did not further because she want Howes say, ‘Yep, getting Howes she’s married. fired. later about Haskenhoff testified good (pause) money.” for a reason And meeting: upset Haskenhoff. This comment She Q. happened in meet- into the control room and And what walked told an- ing? employee, “Okay. A. Kevin is a They asked me about it. said other She leaving. I I something [f&#%!@”g] asshole. am Chad notified her will had
Notes
notes
discrimina-
Haskenhoff
the ICRA
and State
Law Claims: An Iowa
Common
tory discharge
retaliatory discharge
Nation,
Model
L. Rev.
Drake
provisions
language.
use “similar”
Com-
(“The
(2005)
359, 414-15
courts
federal
216.6(l)(a)
§
pare
Code
(stating
Iowa
it is
approach
defining
used the same
“discriminatory practice
for any ...
actionable
conduct
in both
[p]erson
any employee
to ... discharge
cases.”).
statutory and common law
We
protected
...
characteristic
because of’
noted
that the
motivat
DeBoom
lower
added)),
(stat-
§
(emphasis
216.11
with id.
ing-factor
tor-
apply
did not
standard
ing
“discriminatory practice
it is a
for ...
nor
discharge,
tious
was it
intended
[a]ny person
discriminate
retaliate
higher significant-factor
alter the
causation
any of
against
person
rights
another
retaliatory
in ICRA
standard used
dis
protected against
discrimination
this
charge claims.
772 N.W.2d
chapter
person
such
has lawfully
because
alleged retaliatory
II
opposed any practice
Because Count
dis-
under this
forbidden
added)).10 But,
charge
216.11
we
chapter” (emphasis
under Iowa Code section
(1934)
phrase
require
(negli
§
10. The
"because of” does not
of Torts
ment
cmt.
motivating-factor
gence)). Additionally,
ordinary meaning
standard of
As
"the
causation.
Nassar,
Supreme
'by
Court noted in
the de-
reason of
‘on account
'because
at -,
(quoting
interpreting
fault rule in
in tort is
causation
of.’"
S.Ct.
Inc.,
course,
Servs.,
re-
FBL
557 U.S.
"[i]n the usual
standard
Gross v.
Fin.
2343, 2350,
quires plaintiff to show ‘that the harm would
S.Ct.
notes competent, diligent em- and reasonable whole, repeatedly objective referred ployee job to remain on the earn a discharge. Ac- for constructive standard or his and to serve her em- livelihood Haskenhoff, Nos. 33 cording Instruction ployer. In order to amount a con- dealing discharge and 34 with constructive discharge, working structive adverse no less seven references to contained than unusually “aggravat- be conditions must the reasonableness standard. pattern” to a “continuous ed” amount pro- also situation intol- Haskenhoff asserts HES’s before the will be deemed Generally single, posed instruction that “conditions speaking, will erable. be the em- considered intolerable unless trivial or isolate act is insufficient discharge ployer given been chance support has a reasonable a constructive claim. presented problem” be resolve Finally, conditions cannot considered in- notes the been instructions. Haskenhoff employer intolerable unless the has structions stated the “conditions ... Cavalier Corp., Hotel 48 F.3d (4th extraordinary sufficiently 1995); must be Cir. Yates v. Corp., Avco egregious” working (6th that “adverse condi- 1987); F.2d Cir. Junior v. unusually tions must ‘aggravated’ or Texaco, (5th Inc., 688 F.2d Cir. to a pattern’ amount ‘continuous before 1982). intolerable,” situation will be deemed 3.Reasonable chance to work out the trivial, single, “a act isolated is insuffi- Eighth problem. The has stated .Circuit support discharge cient constructive quits an employee who giving without event, any suggests claim.” In Haskenhoff his or her reasonable chance to light that in evidence work out problem is not constructively have found did not discharged. Trierweiler Fargo v. Wells have a chance to resolve reasonable Bank, (8th 2011); F.3d Cir. issue the evidence adduced trial. Vajdl KidsPeace, v. Mesabi Acad. Inc., (8th 484 F.3d Cir. A similar D. Caselaw on Constructive Federal approach has been embraced the Fifth Discharge. Kilgore Eleventh Circuits. v. Thomp applying When Introduction. Inc., Mgt., son & Brock 93 F.3d it appears law constructive discharge, 1996); Branstetter, Bozé v.