Lead Opinion
In this appeal, we must decide whether the district court correctly denied an employer’s motion for new. trial following a $1.4 million jury verdict for the plaintiff on claims under the Iowa Civil Rights Act (ICRA) for employment discrimination
For the reasons explained below, we hold that workers may bring a direct-liability negligence claim under the ICRA against- the employer for supervisor harassment, but the plaintiff must prove the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action to end it. We conclude that prejudicial errors in four jury instructions require a new trial. We find no abuse of discretion in the admission of the expert testimony. We need not decide the remaining issues raised in the appeal.
I. Background Facts and Proceedings.
The jury could find the following facts based on the record developed at trial. Homeland Energy Solutions, LLC (HES) operated an ethanol plant with forty-five employees in Lawler, Iowa.' On February 16, 2009, HES hired Tina Haskenhoff as a lab manager at the plant. That day, she was provided with a copy of the HES employee handbook, which included its policy on sexual harassment. The policy stat: ed sexual harassment was prohibited and provided that “[a]n employee who believes he or she has been subject to harassment prohibited by this policy should report the incident immediately to their supervisor or a member of the Management Team.” The policy stated any complaint of sexual harassment would be investigated and any employee may bring a complaint “without fear of reprisal.”
Haskenhoff was repeatedly harassed by her immediate supervisor, Kevin Howes, HES’s operations manager. Howes repeatedly made inappropriate comments in Haskenhoffs presence. For example, Howes talked about Haskenhoffs breasts on at least three occasions, referring to them as “them puppies” or “the twins.” Howes discussed Haskenhoffs body and attire with other employees and speculated out loud about what it would be like to have sex with her. He insinuated to other male employees that they could get Tina into bed. He commented on the attractiveness or unattractiveness of female job applicants and employees. He spoke at work about strippers. On multiple occasions, he used objects or engaged in body motions in front of Haskenhoff to simulate sexual behavior.
Haskenhoffs coemployees also engaged in inappropriate conduct in her presence. One displayed a screen saver on his computer of two young girls touching tongues. Another photographed Haskenhoffs cleavage at a company outing and showed that photo to others. Haskenhoff received an unwanted pornographic video from yet another employee. The atmosphere Hasken-hoff experienced at the HES plant was unseemly and unprofessional.
In November 2010, Haskenhoff told Howes she needed to leave work early for a mammogram. She remembered Howes responding, “[Wjell, you know, if you sat out in the parking lot you could probably make some money.” She interpreted this
[Wendland] said—he was kind of, like, well, what’s going on here, and he said you know Chad [Kuhlers] really wants me to fire Kevin over this, and I said I never asked Chad to fire him. And then Walt went on to say, well, come [on]. I thought we were like a family. You don’t want to do this to your family.
On December 7, Frein called Haskenhoff into her office to discuss her complaint. Jeff Grober, the chief financial officer (CFO), was also present in Frein’s office. At that meeting, Frein’s notes indicate that she had planned “further discussion” about the complaint, but Haskenhoff stated she did not want the investigation to go further because she did not want Howes to be fired. Haskenhoff later testified about that meeting:
Q. And what happened in that meeting? A. They asked me about it. She said that Chad had notified her of something Kevin had said to me that I reported as making me uncomfortable, and I said he did. And I think I brоke down at that point, and I said I don’t want him to get fired over this, you know. I said to her I’m sure now that he knows, now that it has been pointed out to him, surely he will stop. Anybody would stop.
Q. Is that what you believed would happen? A. Yes.
Q. Did you tell ’em you wanted it dropped? A. I said if it were going to come to the point of Kevin getting fired, I didn’t want to go—I didn’t want to officially go further at all because I did not want him fired over that.
Q. Did you want them to do something about it? A. Yes.
At Haskenhoffs request, Frein took no further disciplinary action against Howes at that time.
Wendland later removed Kuhlers as plant manager and promoted Howes to that position. For the next nine months, Haskenhoff made no complaints to management about Howes. Her performance review in January 2011 noted that she met or exceeded requirements in all areas. However, the review also noted that Hask-enhoff had areas to work on and referenced an email dispute in which Hasken-hoff had become argumentative with a subordinate over lab procedures. In May, she began seeking a position at John Deere.
On August 8, Haskenhoff walked by Howes’s office and overheard him talking on his cell phone. Haskenhoff recently had told Howes she intended to marry her long-time boyfriend. Haskenhoff overheard Howes say, ‘Yep, she’s getting married. And for a good reason (pause) for money.” This comment upset Haskenhoff. She walked into the control room and told another employee, “Okay. Kevin is a [f&#%!@”g] asshole. I am leaving. I will
Haskenhoff sent an email to Howes expressing her disgust at his comment. Howes replied that he had not meant to offend her and asked her to meet the next day in his office to discuss the issue. Later that night, Howes sent an email to the CEO; Wendland; the CFO, then David Finke; and the commodities manager, Steve Wubbena. In the email, Howes said he wanted to discipline Haskenhoff for calling him expletives in front of subordinate employees,, for leaving the lab a mess, and for leaving work without permission for the day. He pointed out Hask-enhoff had been the only lab person scheduled, lab samples had not been completed, they were in the middle of a lab trial, and she “blew off” a conference , call by leaving. Howes also expressed frustration at Hask-enhoffs attitude, her frequent smoke breaks, and her failure to arrange, coverage for her shifts on her days off. Finke responded, “We claim that she does a lot of things poorly, do we have any of this documented and on file?”
The next day, Haskenhoff met with Howes and Wubbena in Howes’s office. They discussed the conduct from the day before, and Howes apologized. Howes also used the term “insubordination” to refer to Haskenhoffs reaction to his comment. Haskenhoff replied using terms such as “sexual harassment” and “hostile work environment” to refer to Howes’s conduct. She then told Howes about other conduct in the office, including about a coemployee having an inappropriate screen saver and inappropriate nicknames being used in the office. Howes responded after their meeting by directing the employees, to cease using the nicknames and to remove the screen saver.
The following week, Frein emailed Haskenhoff asking for “facts, examples, and concerns [of inappropriate conduct] in writing, so we can get them addressed appropriately.” Haskenhoff responded by email to Frein the same day, listing multiple incidents of inappropriate conduct and stating the list was long “but not all encompassing.” Haskenhoff said the only reason she brought the issues up was that Howes had threatened to write her up for insubordination. Frein immediately forwarded this email to Finke, who responded, “I don’t think we can discount anything that is mentioned below. Some of it may be embellished a bit, but we still cannot just take it with a grain of salt.” Finke stated that the first step was to look at the employee handbook, the second step was a plant-wide training for sexual harassment, and the third step was devising a plan to address the issue with Howes..
- The next day, Howes prepared a written warning for Haskenhoffs conduct leaving work early. He also provided Frein with a statement of what occurred during the August 9 meeting. Wubbena forwarded a statement to Frein as well. A day later, Finke emailed Frein recounting that he told Howes he needed to be “OVERLY” professional in “ALL” of his work-related endeavors moving forward. Finke’s email also told Frein, “In the meantime, I want you to be thinking about forming a game plan for investigation [of] Tina’s claims.” Frein enlisted the help of outside counsel, James Gilliam, that day. Frein asked Gilliam questions about HES’s next steps, including whether Haskenhoff, could be disciplined for leaving work early without permission and for “plotting” against Howes.
HES investigated Haskenhoffs complaint by interviewing employees, including Haskenhoff and Howes. During Hasken-hoffs interview on August 23, Wendland and Frein were present and reviewed Haskenhoffs list of incidents. As to several
While the investigation was ongoing, Howes began drafting staff-counseling forms, or write-ups, for what he perceived as Haskenhoffs insubordination leaving the plant early on August 8. Howes indicated he wanted to terminate Haskenhoff and contacted other employees to gather more evidence of her insubordination. Howes also repeatedly reminded other employees to keep work professional and informed them of ■ upcoming mandatory harassment training., Gilliam and Frein recommended that Haskenhoff not be disciplined for her conduct because “the timing was inappropriate.” Finke told Howes by email that he did not feel comfortable terminating Haskenhoff, stating,
I honestly feel that Walt and I are getting to the bottom of a very serious situation and that we are doing it in the proper manner. For me, the end goal is to make an informed proper conclusion per Homeland’s policies and under the guidance of qualified legal counsel.
Nevertheless, Howes drafted two final staff-counseling forms regarding Hasken-hoff, one entitled “#3” and the other “#4.” He emailed these forms to Wendland and Finke. Form #3 discussed the investigation and listed 'the “numerous harassment/inappropriate behavior claims” as one of the reasons for disciplining Hasken-hoff. Form #4 did not mention the investigation and focused on Haskenhoffs conduct on August 8 leaving work without permission. Howes said he liked #4 because “it does not come across as being retaliatory in nature.” Both forms recommended giving Haskenhoff a written warning and ninety-day performance improvement plan.
On August 29, Wendland and Finke presented Howes with a written staff-counseling form, which determined that Howes had “made unprofessional and unacceptable comments in the'workplace.” It stated that HES expected Howes’s conduct to improve and that if it did not, he would be subject to disciplinary action, including possible discharge. Two days later, Wend-land and Finke met with Haskenhoff to discuss the results of the investigation. They assured her that she would not be retaliated against and directed her to report any perceived retaliation to Finke or Wendland. Then, while Wendland and Finke were still present, Howes entered the room and presented Haskenhoff with a draft performance improvement plan addressing her conduct on August 8. Hasken-hoff disagreed with many allegations in the plan. The men assured her the plan would be redrafted to reflect her concerns. The next day, Haskenhoff reported to HES for work. At around 11 a.m., she entered Finke’s office and resigned, calling the previous day’s events “bullshit.”
Haskenhoff filed an administrative complaint with the IGRA eight months later. After receiving an administrative release, Haskenhoff filed a civil action in Chickasaw County District Court, alleging sexual harassment and retaliation under the ICRA. The jury trial commenced on October 1, 2014, and spanned three weeks.
. HES filed multiple motions in limine, several of which were granted by the district court. An order in limine prohibited Haskenhoffs counsel from making any ref
Q. I mean, don’t you think it would be analogous, for instance, if someone had accused someone of rape and then the person they accused of rape was able to walk in and say that’s defamation for saying I’m a rapist?
MR. VISSER: Objection; this is argument, it’s improper, and violates the terms of pretrial orders.
THE COURT: Sustained as to argumentative.
Another order in limine forbade Hasken-hoffs counsel from offering testimony about Howes’s character or referring to him as “juvenile, immature, chauvinistic, vindictive, holding a grudge, or capable of retaliation,” as such evidence was not probative of truthfulness. Counsel for Hasken-hoff nevertheless asked the following questions in front of the jury:
Q. [To Matthew Dutka, employee of HES] And based on knowing and observing [Howes], is he the kind of person that would be likely to use people to get what he wants?
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Q. [To Wade Heideman, employee of HES] Based on your observations about Kevin, would he be the kind of guy who would hold a grudge?
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Q. [To Sherri Hansen, employee of HES] From your time working with Mr. Howes, do you think he would have done everything in his power to get rid of Tina?
Counsel for HES objected over 574 times during the trial, according to Haskenhoff. The court sustained 353 defense objections, or sixty-one percent. By contrast, counsel for Haskenhoff objected fifty-nine times, thirty of which were sustained (fifty-one percent).
The district court denied HES’s motion in limine to exclude the testimony of expert witness Dr, Louise Fitzgerald, professor emeritus of the University of Illinois at Urbana-Champaign, who taught Psychology and Gender and Women’s Studies. HES argued her testimony included inadmissible legal conclusions. Dr. Fitzgerald testified over defense objections about the standard of care in the human resources field for policies and procedures regarding sexual harassment and HES’s alleged failure to meet that standard. She also testified about victims’ typical reactions to sexual harassment and stated Haskenhoff displayed those reactions. HES argues the jury instructions were shaped to reflect Dr. Fitzgerald’s testimony. At the close of evidence, the parties made a record on jury instructions.
A. Direct Negligence Versus Vicarious Liability for Supervisor Harassment. HES requested an instruction on sexual harassment that applied different standards of liability depending on the harasser’s position within the company. For harassment by a coworker, HES’s proposed instruction stated it would be liable if it “knew or' should have known of the abusive or hostile conduct and failed to take prompt and corrective action to end the harassment.” If the harasser was a supervisor, HES’s proposed instruction did not require the plaintiff to prove HES knew or should have known of the harassment, but allowed HES to prove, as an affirmative defense, that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that Haskenhoff “unreasonably failed to take advantage of any preventative or
Haskenhoff argued for a single marshaling instruction on a direct negligence theory that encompassed harassment by a supervisor or coworker. The district court agreed and gave an instruction neаrly identical to Haskenhoffs proposed instruction. The court’s marshaling instruction stated,
INSTRUCTION NO. 14
COUNT I-SEXUAL HARASSMENT CLAIM
In order to recover damages on her claim of sexual harassment, the plaintiff, Tina Haskenhoff, must prove all of the following elements of her claim:
1. The plaintiff, Tina Haskenhoff, was subjected to offensive conduct by employees, agents, or officers of Homeland Energy Solutions, L.L.C. while employed at its ethanol plant.
2. Such conduct was unwelcome.
3. Tina Haskenhoffs sex played a part in such conduct.
4. This conduct was sufficiently severe or pervasive that a reasonable person in Tina Haskenhoffs position would find her work environment was hostile or offensive.
5. At the time this conduct occurred and as a result of this conduct, Tina Haskenhoff believed that the work environment was hostile or abusive.
6. Homeland Energy Solutions, L.L.C., knew or should have known of the occurrence of one or more sexually harassing incidents.
7.Homeland Energy Solutions, L.L.C. acted negligently in creating or continuing a hostile work environment.
If you find that the plaintiff, Tina Haskenhoff, has failed to prove any of these propositions, the plaintiff is not entitled to damages on her claim of sexual harassment. If the plaintiff has proved all of these propositions, the plaintiff is entitled to damages in some amount.
HES objected to this marshaling instruction, citing Farmland Foods, Inc. v. Dubuque Human Rights Commission, on liability for sexual harassment and the applicability of the Faragher-Ellerth defense.
B. Retaliation Instruction—Causation. HES objected to the court’s marshaling instruction on Count II, retaliation. HES requested an instruction that required Haskenhoff to prove the protected activity was a “significant factor” motivating the adverse employment action. In contrast, Haskenhoffs proposed instruction, which the district court in large part adopted, provided that the protected activity need only have “played a part” in defendant’s decision to take the adverse action. The court’s marshaling instruction stated,
INSTRUCTION NO. 26
COUNT II-RETALIATION CLAIM
In order to recover damages on her claim of retaliation, the plaintiff, TinaHaskenhoff, must prove all of the following elements of her claim:
1. The plaintiff, Tina Haskenhoff, engaged in protected activity by complaining about sexual harassment.
2. The defendant, Homeland Energy Solutions, L.L.C., took adverse action against Tina Haskenhoff.
3. The protected activity played a part in Homeland Energy Solutions, L.L.C.’s decision to take the adverse action.
Instruction No. 28 elaborated,
INSTRUCTION NO. 28 FACTOR-DEFINED
The plaintiff’s harassment complaints played a part in her treatment if those complaints were a factor in the defendant’s employment actions toward her. However, her harassment complaints need not have been the only reason for the defendant’s actions.
HES objected to these instructions, stating that the elements of a retaliation claim, as set forth in our decisions, “all provide that ... causal connection is satisfied by a showing that the protected activity was a significant factor motivating the adverse employment action.” HES cited City of Hampton v. Iowa Civil Rights Commission,
C. Adverse Action. HES also objected to the court’s instruction defining “adverse employment action.” HES requested an instruction that defined an adverse employment action as
an action that detrimentally affects the terms, conditions, or privileges of employment. Changes in duties or working conditions that cause no materially significant disadvantage to the employee are not adverse employment actions. It includes, but is not limited to, employment actions such as termination of an employee, failure to promote, or any action that would discourage a reasonable employee from making a complaint of harassment. Giving an employee a performance improvement plan or negative employment review is not “adverse employment action” unless they are later used as a basis to alter the employee’s terms or conditions of employment in a detrimental way. Both the action and its context must be examined.
The district court declined to give HES’s proposed instruction and instead gave Haskenhoffs instruction, which listed more activities as examples of adverse action:
INSTRUCTION NO. 30
ADVERSE ACTION-DEFINED
“Adverse action” means any action which has material consequences to an employee. It is anything that might dissuade a reasonable person from making or supporting an allegation of discrimination or harassment.
It includes but is not limited to, such employment actions as constructive discharge, reprimands or threats of reprimands, a change in opportunities, false accusations or complaints, being investigated, being placed on a performance improvement plan, being placed on probation, or other actions which adversely affect or undermine the position of the employee. It also includes an employer seeking out negative feedback on an employee, or condoning or encouraging other employees to complain about her. You should judge whether an action is sufficiently adverse from the point of view of a reasonable person in the plaintiffs position.
HES objected, stating the second paragraph was “misleading and an incomplete statement of the law” because it included reprimands and other matters never found
D. Constructive Discharge. HES objected to the court’s instruction on constructive discharge, which was adopted verbatim from Haskenhoffs proposed instruction and stated,
INSTRUCTION NO. 33
CONSTRUCTIVE DISCHARGE-EXPLAINED
An employee is constructively discharged if the employer deliberately makes her working conditions intolerable so that the employee reasonably feels forced to quit. The work environment need not literally be unbearable to be intolerable under the law. The employer need not really want the employee to quit. It is sufficient that the employee’s resignation was a- reasonably foreseeable consequence of the working conditions created or permitted by the employer.
, The employee must show that she was subjected to sexual harassment or retaliation [that] made her believe there was no chance for fair treatment at Homeland.
An employee does not need to stay as an employee if she reasonably believes there is no possibility the employer will treat her fairly. It is enough if the employee has no recourse within the employer’s organization or reasonably believes there is no chance for fair treatment. The intolerable working conditions may be created by either the action or inaction of the employer.
HES objected that the instruction was an “incomplete and misleading statement of the law” because it injected a subjective standard. HES also specifically objected to
the court’s failure to include language as suggested by the defendant in its constructive discharge claim, including but not limited to a statement that “the employee has an obligation to be reasonable, not assume the worst and not jump to conclusions; conditions will not be considered intolerable unless the employer has been given reasonable chance to resolve the problem.” ,
E. The Court’s Ruling. Following argument on each of the jury instructions, the court provided, “Court will overrule all of the objections and exceptions to' the instructions. Court believes they’re appropriate based on the factual record and the law as the court views it.” The case proceeded to verdict.
On October 23, the jury returned a verdict for Haskenhoff on both-counts and awarded damages in the amount of $1,400,-000—4100,000 in backpay, $300,000 in past emotional distress, and'$1,000,000 in future emotional distress. ■' ''
HES moved for a new trial on grounds of. (1) the instructional errors set forth above, (2) erroneous evidentiary rulings allowing Dr. Fitzgerald to testify as to legal conclusions, (3) misconduct by Hask-enhoffs counsel, and (4) excessive damages. Haskenhoff filed a motion requesting attorney fees and expenses of $846,364 and equitable relief of, frontpay of $240,000.
The district court denied HES’s motion for new trial. Specifically, the court found, “Jury instructions were thoroughly briefed by counsel and discussed at length with the court both on and off the record.” The court also noted that nearly all of HES’s asserted evidentiary errors were based on issues already ruled upon by the court during HES’s motion for summary judgment and motions in limine. The court found the attorneys’ conduct to be merely a product of zealous representation and damages were not excessive. The court awarded frontpay and attorney fees in the full amount requested and entered judg
HES filed a timely notice of appeal based on the issues raised in its motion for new trial and excessive attorney fees. We retained the appeal.
II. Standard of Review.
“We review alleged errors in jury instructions for correction of errors at law.” DeBoom v. Raining Rose, Inc., 772, N.W.2d 1, 5 (Iowa 2009) (quoting Boyle v. Alum-Line, Inc.,
“We review a trial court’s decision to admit or exclude expert testimony for an abuse of discretion.” Ranes v. Adams Labs., Inc., 118 N.W.2d 677, 685 (Iowa 2010). We reverse district court rulings on the admissibility of expert opinion testimony “only when the record shows ‘the court exercised [its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ ” Id. (alteration in original) (quoting State v. Maghee,
III. Analysis.
The first question we must decide is whether Haskenhoff could recover from HES on a direct negligence theory for harassment by her supervisor, Howes. HES contends a supervisor-harassment action requires a vicarious liability theory and an affirmative-defense instruction, while only a coworker-harassment action can be brought under a direct-liability negligence (direct negligence) theory. Hasken-hoff contends a plaintiff may sue the employer under a direct negligence theory for both supervisor and coworker harassment. We hold employers can be held liable for supervisor harassment under the ICRA on a direct negligence theory. However, the plaintiff must prove the employer failed to take prompt and appropriate remedial action to end the harassment, a fighting factual issue at trial. Because the district court’s marshaling instruction omitted that element, a new trial is required.
We next address the three remaining instructional errors in turn. We conclude the jury was misinstructed on the causation element for retaliation, on the definition of adverse employment action, and on constructive discharge. These prejudicial instructional errors also require a new trial. Finally, because the issue is likely to recur on rеmand, we address the admissibility of Dr. Fitzgerald’s testimony and conclude the district court did not abuse its discretion by allowing her testimony.
We begin with the text of the statute. Iowa Code section 216.6(1) (2011) forbids the creation of a hostile working environment, stating,
It shall be an unfair or discriminatory practice for any:
a. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the ... sex ... of such applicant or employee, unless based upon the nature of the occupation.
To establish a hostile-work-environment claim under the ICRA,
the plaintiff must show: (1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; and (4) the harassment affected a term, condition, or privilege of employment.
Boyle,
by showing it: (1) “exercised reasonable care to prevent and correct promptly any ... harassing behavior,” and (2) “that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Id. at 744 n.2 (quoting Faragher,
HES argues the jury should have been instructed on vicarious liability, including the Faragher-Ellerth defense, because vicarious liability replaced the negligence standard for supervisor harassment. Haskenhoff argues the vicarious liability standard did not replace, but rather supplemented, the direct negligence standard. Because the ICRA hostile-work-environment, claim is modeled after its Title VII counterpart, we consider federal law instructive.
The United States Supreme Court first recognized hostile-work-environment sexual harassment as actionable discrimination in Meritor Savings Bank, FSB v. Vinson,
Four years later, in Lynch v. City of Des Moines, we held that “maintenance of a sexually hostile work environment through sexual harassment is a form of illegal sex discrimination under [the ICRA].”
In 1998, the United States Supreme Court recognized employer vicarious liability for supervisor harassment. Ellerth,
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
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(b) the master was negligent or reckless, or
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(d) the servant purported to act or speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
Id. at 758,
(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Id. at 765,
Iowa adopted the vicarious liability standard of Ellerth and Faragher in Farmland Foods, a hostile-work-environment claim under the ICRA.
Merely because vicarious liability is available in cases of supervisor harassment does not mean the negligence standard in place before Ellerth, Faragher, and Farmland Foods has been abrogated. To the contrary, Ellerth expressly states that the direct negligence standards set forth in subsection (b) of the Restatement-of Agency, remains an alternative ground for establishing employer liability for supervisor harassment:
Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor’s acts and must be considered. Under subsection(b), an employer is liable when the tort is attributable to the employer’s own negligence. Thus, although a supervisor’s sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability.
Ellerth,
The Supreme Court’s decision in Vance v. Ball State University, 570 U.S. -,
Several federal circuit courts of appeals after Ellerth and Faragher have held that suits for supervisor harassment can be brought under either vicarious liability or direct negligence theories. In Sharp v. City of Houston, the United States Court of Appeals for the Fifth Circuit recognized that a claim for supervisor harassment could proceed on a negligence “knew or should have known” theory because the negligence standard for supervisor harassment was “not disturbed by Faragher or [Ellerth].”
That employers are directly liable for their own negligence is not a new proposition. The Restatement (Second) of Employment Law, section 4.02, at 134 (2015), entitled “Employer’s Direct Liability to Employees for Its Own Conduct,” provides that “an employer is subject to liability in tort to an employee for harm caused in the course of employment by the tortious conduct of the employer or the controlling owner.” (Emphasis added.) Similarly, the Restatement (Third) of Agency, section 7.03, at 151 (2006), provides that a principal is liable for its own negligence in “selecting, supervising, or otherwise controlling the agent” in addition to any vicarious liability that may be imposed via the agent’s actions.
We hold that plaintiffs under the ICRA may proceed against the employer on either a direct negligence or vicarious liability theory for supervisor harassment in a hostile-work-environment case. The Faragher-Ellerth affirmative defense, with the burden of proof on the employer, applies only to claims of vicarious liability. Ellerth,
B. Whether the District Court Correctly Instructed the Jury on the Direct Negligence Theory. We next address whether the jury was correctly instructed on the direct negligence theory. The district court essentially adopted Hasken-hoffs proposed marshaling instruction, which omitted an element she was required to prove—that HES “failed to take prompt and appropriate remedial action.” Id. HES objected to the omission of that element, and we conclude the district court prejudicially erred by overruling the objection and giving Instruction No. 14 without that language. Whether HES in fact took “prompt and appropriate action” was a fighting issue at trial and a jury question. Haskenhoff did not establish as a matter of law that HES failed to take prompt and appropriate action.
The standard requiring a plaintiff to prove the employer’s failure to take prompt remedial action “places a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it.” Vaughn,
The first time Haskenhoff complained to management about Howes’s harassment, senior management promptly met with her and Howes. Howes was verbally confronted in a manner that led him and others to believe he faced termination. Howes apologized to Haskenhoff, and Haskenhoff, believing the harassment issue was resolved, asked that no further action be taken at that time. See Nurse “BE" v. Columbia
When Haskenhoff next complained of harassment in August of 2011, HES took immediate remedial action. A formal investigation was launched with outside counsel. Witnesses were interviewed. HES management admonished coemployees to conduct themselves professionally and take down the offensive screen saver. Sexual harassment training was scheduled. Howes was disciplined and apologized. See Wilson,
Haskenhoff argues Vance imposes liability when an employer is negligent in allowing harassment to occur, regardless of notice or subsequent corrective action. We disagree. Haskenhoff relies on this sentence in Vance: “As an initial matter, an employer will' always be liable when its negligence leads to the creation or continuation of a hostile work environment.” 570 U.S. at -,
It has been suggested that the jury need not be instructed regarding the employer’s remedial efforts if management, negligently unaware of harassment, took no action. That is not this. case. Haskenhoff on two occasions complained to management about Howes’s harassment. On both occasions, management took action to stop the harassment. It was for the jury to determine, under proper instructions, whether
We decline to interpret the ICRA to impose employer liability for supervisor harassment under a direct negligence theory despite the employer’s prompt and appropriate action to end the harassment. Notably, the Equal Employment Opportunity Commission (EEOC) in interpreting Title VII does not go so far. See 29 C.F.R. § 1604.11(d) (2016) (“[A]n employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” (Emphasis added.)). Indeed, most federal circuit model jury marshaling instructions for sexual harassment under Title VII require the plaintiff to prove the defendant failed to take prompt and appropriate remedial action.
Employers would lose a key incentive to take corrective action if they were automatically hable for harassment whether or not they put a stop to it. As the Fifth Circuit observed, “Imposing vicarious liability on an employer for a supervisor’s ‘hostile environment’ actions despite its swift and appropriate remedial response to
Finally, allowing one marshaling instruction on direct negligence—requiring the plaintiff to prove the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action—for both coemployee and supervisor harassment avoids confusing jury instructions with differing standards. It also avoids issues over whether a particular employee is a supervisor. Mixing different authority levels of employees “presents no problem for the negligence standard.” Vance, 570 U.S. at -,
Haskenhoff is the master of her own pleadings. But by deciding to pursue a direct negligence theory for supervisor harassment, rather than vicarious liability, she assumed the burden of proving not only that HES knew or should have known of Howes’s harassment, but also that it failed to take prompt remedial action to stop it. Lynch,
While the reasonableness of an employer’s response to sexual harassment is at issue under both standards, the plaintiff must clear a higher hurdle under the negligence standard, where she bears the burden of establishing her employer’s negligence, than under the vicarious liability standard, where the burden shifts to the employer to prove its own reasonableness and the plaintiffs negligence.
Curry v. District of Columbia,
Reversal is required when jury instructions contain a “material misstatement of the law” or are misleading or confusing. Rivera,
“We assume prejudice unless the record affirmatively establishes that there was no prejudice.” Rivera,
The district court gave a separate instruction, No. 24, on remedial action, which stated,
Once an employer knows or should have known of sexual harassment, it must take prompt remedial action reasonably calculated to end the conduct. The employer has the duty to take this remedial action even if an employee asks the employer not to do anything.
(Emphasis omitted.) This instruction was not cross-referenced in the marshaling instruction or any other instruction and does not cure the flaw in the marshaling instruction when the instructions are read as a whole. The jury was nowhere told Hask-enhoff had the burden to prove HES failed to take prompt and appropriate remedial action to end the harassment.
Haskenhoff cites no case holding the fatal omission in the marshaling instruction could be cured by counsel during summation.
Number 24 talks about remedial action. Once an employer knows or should know about the sexual harassment, it must take prompt remedial action reasonably calculated to end the conduct. The employer has a duty to take this remedial action even if an employee asks the employer to do nothing.
There was no instruction given by the court that allowed HES to argue plaintiff could not recover without proving it failed to take prompt remedial action. Closing arguments were lengthy, extending from the morning until 2:30 p.m. and encompassing 130.pages of the trial transcript. Closing arguments “generally carry less weight with a jury than do instructions from the court.” Boyde v. California,
We therefore determine HES is entitled to a new trial.
C. Whether the District Court Erred in Instructing on a “Motivating Factor” Standard for Retaliatory Discharge. HES argues the district court erroneously adopted the lower “motivating factor” causation standard used in discriminatory discharge claims (Iowa Code section 216.6(l)(a)), rather than the higher “significant factor” causation standard used in retaliatory discharge claims (Iowa Code section 216.11(2)). Haskenhoff argues that (1) under DeBoom,
Our analysis begins with the text of the statute. The ICRA, Iowa Code section 216.11(2), makes it an unfair or discriminatory practice for
[a]ny person to ... retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.
In order to recover for retaliatory discharge, the plaintiff must prove
(1) he or she was engaged in statutorily protected activity, (2) the employer took adverse employment action against him or her, and (3) there was a causal connection between his or her participation in the protected activity and the adverse employment action taken.
Boyle,
A separate provision, Iowa Code section 216.6(l)(a), forbids discriminatory discharge, i.e., discharge because of discrimination based on a protected characteristic. Retaliatory discharge is different; it prohibits discharge or discrimination based on the employee’s engaging in a protected activity. See id. § 216.11(2). Though the two concepts are related, they are not the same; one prohibits status-based discriminatory discharge, while the other prohibits discharge based on a protected activity in which an employee chooses to engage. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. -, -,
DeBoom clarified that the motivating-factor test applied to discriminatory discharge cases. See DeBoom,
Because Count II alleged retaliatory discharge under Iowa Code section 216.11 and not discriminatory discharge under section 216.6(l)(a), the jury should have been instructed on the correct causation standard—requiring Haskenhoff to prove her protected conduct was a significant factor. See, e.g., French v. Cummins Filtration, Inc., No. C11-3024-MWB,
Haskenhoff notes the ICRA discriminatory discharge and retaliatory discharge provisions use “similar” language. Compare Iowa Code § 216.6(l)(a) (stating it is a “discriminatory practice for any ... [p]erson to ... discharge any employee ... because of’ a protected characteristic (emphasis added)), with id. § 216.11 (stating it is a “discriminatory practice for ... [a]ny person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter” (emphasis added)).
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.
Title VII provides a higher causation standard for retaliation claims than discriminatory discharge actions. See Nassar, 570 U.S. at -,
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employees], administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation .... Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.
Id. at -,
We reject Haskenhoffs contention that we are “blindly” following federal law. First, we are following our own precedent: our cases have made clear that the correct causation standard for a retaliatory discharge claim brought under section 216.11(2) of the ICRA is the significant-factor standard. See id. at 535; Hulme,
Predictability and stability are especially important in employment law. Employers must comply with both state and federal law. Human resources personnel and supervisors must apply myriad rules and regulations in complex situations. Employers and prospective employers should be able to rely on our precedents. We would generate significant uncertainty if we overrule our own long-standing precedent to diverge from settled federal interpretations. Uncertainty invites more litigation and increasing costs for all parties. An uncertain or costly litigation environment inhibits job creation.
The legislative history of the ICRA does not support the view that we should depart from our long-standing practice of looking to federal decisions to interpret the same or equivalent statutory language. While it is true some provisions of the ICRA predated Title VII,
We conclude the district court’s instruction applying the motivating-factor causation standard was erroneous. In the marshaling instruction for Count II, retaliatory discharge, the district court should have instructed the jury that Haskenhoff must prove the protected activity was a significant factor motivating the adverse action, consistent with our precedent.
D. Whether the District Court’s Jury Instruction Improperly Defined “Adverse Employment Action.” Next, we address whether the court’s instruction defining an adverse employment action was erroneous. HES argues the instruction reflected an inaccurate statement of the law because it listed the following as examples of adverse action:
reprimands or threats of reprimands, ... false accusations or complaints, being investigated, being placed on a performance improvement plan, being placed on probation, or other actions which adversely affect or undermine the position of the employee[,] ... an employer seeking out negative feedback on an employee, or condoning or encouraging other employees to complain about her.
HES points out that no Iowa court has held these actions are “materially adverse actions” for purposes of a retaliation claim under the ICRA.
In order to prove retaliation, a plaintiff must show “the employer took adverse employment action against him or her.” Boyle,
The Supreme Court in Burlington Northern provided further guidance on what qualifies as an adverse employment action in a retaliation claim. A female employee, Sheila White, was assigned to operate a forklift, a desirable position because it was less arduous and cleaner than other tasks.
Deciding whether White had suffered an adverse employment action, the Court declined to limit a retaliatory adverse action to only those that “affect the terms and conditions of employment.” Id. at 64,
Thus, the Court took a broader approach, allowing a plaintiff alleging an adverse action was “materially adverse” to prove the action would have “dissuaded a reasonable worker' from making or , supporting a charge of discrimination.” Id. at 68,
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a •.general civility code for the American workplace.” An employee’s decision to report discriminatory behavior cannot immunize the employee from those petty slights or minor annoyances that often take place at work and that ,all employees experience. The antiretaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.
Id. (citations omitted) (first quoting Oncale,
The Court stressed that the “significance of any given act of retaliation will often depend on the particular circumstances.” Id. at 69,
Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more timq performing the more arduous duties and less time performing those that are easier or more agreeable.
Id. at. 70-71,
Burlington Northern, however, does not rescue the .jury instruction here. Even before Burlington Northern, we recognized that adverse employment actions can occur in a variety of situations and “will normally depend on. the facts of each situation.” Channon,
Prior to Burlington Northern, in Farmland Foods, when an employer criticized an employee because of the slow pace of his work, we determined that “occasional complaints voiced by an employer about employee performance standards” did not constitute “substantial evidence of a materially adverse employment action.”
Similarly, in Powell v. Yellow Book USA, Inc., although an employee received three written reprimands after filing a complaint with the Iowa Civil Rights Commission, “she [could] point to no cut in her pay, no reduction in her hours, nor any other significant change to the conditions of her employment.”
A majority of circuits addressing the question have held that - a reprimand or performance improvement plan, without more, cannot be considered an adverse employment action under Burlington Northern. See Rebouche,
Under the facts of this case, the performance improvement plan, alone, did not cause Haskenhoff material harm either within the workplace or outside of it. Haskenhoff was never suspended, with or without pay. See Burlington N.,
“We have on a number of occasions found instructions that unduly emphasized certain evidence were flawed and required reversal.” Alcala,
Instruction No. 30 provided that certain activities constituted adverse employment actions as a matter of law. The list included matters that no court in Iowa—or the Iowa Civil Rights Commission or EEOC, for that matter—has concluded constitute an adverse employment action as a matter of law. See EEOC Enforcement Guidance on Retaliation and Related Issues (Aug. 25, 2016), https://www.eeoc.gov/laws/ guidance/retaliation-guidance.cfm#_ftnref 113. By stating certain instances of conduct that occurred in this case were examples of adverse employment actions (and thus adverse action as a matter of law), the instruction took that factual determination away from the jury and relieved
E. Whether the Constructive Discharge Instruction Misstated the Law. We next address the district court’s instruction on constructive discharge. “Constructive discharge exists when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Van Meter Indus. v. Mason City Human Rights Comm’n,
In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted “end runs” around wrongful discharge and other claims requiring employer-initiated terminations of employment.
Balmer v. Hawkeye Steel,
HES asserts three errors in the constructive discharge instruction. First, HES contends that it was error to instruct the jury, “The employer need not really want the employee to quit.” Second, HES argues the district court erred by inserting a subjective standard into the definition of constructive discharge. Third, HES assigns error to the district court’s refusal to allow an instruction stating “conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem.”
Although it may be undisputed that VMI wanted Sires to stay on the job, this fact does not preclude a finding that the company deliberately rendered Sires’ working conditions so intolerable that a reasonable employee in Sires’ position would resign.
Id. It is enough “that the employee’s resignation was a reasonably foreseeable consequence of the insufferable working conditions created by the employer.” Id. We reversed the district court’s finding there was not substantial evidence Sires was constructively discharged. Id. at 513. Pursuant to Van Meter Industries, the jury was correctly instructed the employer need not really want the employee to quit to claim cоnstructive discharge.
2. Objective standard for constructive discharge. HES next asserts error because the constructive discharge instruction wrongly directed the jury to consider i subjective standard. The instruction stated, “The employee must show that she was subjected to sexual harassment or retaliation [that] made her believe there was. no chance for fair treatment at Homeland.” (Emphasis added.) We conclude it should have said, “made her reasonably believe.”
The test for constructive discharge is objective, evaluating whether a reasonable person in the employee’s position would have been compelled to resign and whether an employee reasonably believed there was no possibility that an employer would respond fairly. Id. at 511. “The issue thus is not how plaintiff felt but whether a reasonable person in his position would have felt the same way.” Reihmann v. Foerstner,
“[W]orking conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Van Meter Indus.,
Under the cases, an employee cannot simply “quit and sue,” claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer..,.
... Every job has its frustrations, challenges, ... and disappointments;these inhere in the nature of work. [An employee is not] guaranteed a working environment free of stress. •
Id. at 575-76 (alteration in original) (quoting Turner,
The first paragraph of the constructive discharge instruction' focused on whether the conditions were “intolerable so that the employee reasonably feels forced to quit.” But the second paragraph implied that “intolerable” conditions equated to the employee’s subjective belief there was' “no chance for fair treatment at Homeland.” This was not a correct statement of law. See Van Meter Indus.,
Nevertheless, omitting “reasonably” in one sentence of the constructive discharge instruction was harmless when the instructions are read as a'whole. “[W]e look to the instructions as a whole and do not require perfection.” Rivera,
INSTRUCTION NO. 34
INTOLERABLE WORKING CONDI: TIONS-DEFINED
Working conditions are intolerable if a reasonable person in the plaintiffs situation would have deemed resignation the only reasonable alternative.
The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.
' The adverse working conditions must be unusually “aggravated” or amount to a “continuous pattern” before the situation will be deemed intolerable. A single, trivial or isolated act is insufficient to support a. constructive - discharge claim.
The instructions on constructive discharge mentioned the standard of “reasonable belief’ or “reasonable employee” no less than five times. In addition, the sentence immediately following the offending statement in the‘marshaling instruction clarified the objective standard, elaborating that the employee must “reasonably believe” there is no possibility of fair treatment. Reading the instructions together “leads to the inevitable conclusion the jury could not have misapprehended the issue” on the constructive discharge objective standard. Moser v. Stallings,
3. Reasonable chance to resolve the problem. HES raises a final point that the district court should have given its requested instruction stating that “conditions cannot be .considered intolerable unless the employer has been given a reasonable chance to resolve the problem.” We conclude HES’s requested instruction was a correct statement of the law and was not adequately embodied in other instructions. Therefore, on this record, it was reversible error for the district court to refuse to give that instruction.
In Van Meter Industries, we squarely decided that an employee" must give an employer “a reasonable' chance to resolve the problem.”
On review, we begаn by noting that “conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem.” Id. at 511. We then tempered this statement: “On the other hand, an employee need not stay if he or she reasonably believes there is no possibility the employer will respond fairly.” Id. Examining Sires’ constructive discharge claim, we observed she gave Van Meter Industries a reasonable opportunity to remedy the discrimination. Id. at 513. Although she waited only one month before quitting, Sires had a reasonable belief her employer would not resolve the problem:
In the weeks between Meyers’ promotion and Sires’ resignation the company not only took no action to investigate Sires’ complaints, it gave no indication that it intended to conduct an inquiry. The company’s indifference was further demonstrated by the fact Sires was referred to the individual who made the discriminatory promotion decision to seek a resolution of her grievance. This individual, rather than assuring Sires that appropriate and prompt remedial action would be taken, informed her that he would make the same decision again if he had it to do over and reaffirmed that the company saw her future in operations.
Id. (citation omitted). Because Sires demonstrated a reasonable belief her employer would not resolve the problem, we concluded,
[W]e cannot say under the specific circumstances of this particular case that she acted precipitously. A review of the evidence shows this case is not one where the company did not have sufficient time to rectify its wrong.... Rather, this case presents a situation where the company, when given the opportunity, chose to perpetuate its discriminatory practices.
Id.
We supported our decision by citing Iowa precedent and precedent from the Eighth Circuit. See id. at 511 (citing Breeding v. Arthur J. Gallagher & Co.,
The Eighth Circuit has held that to demonstrate constructive discharge, an employee must show that a “reasonable person would find the working conditions intolerable.” Phillips v. Taco Bell Corp.,
Peggy Kimzey, an employee at Wal-Mart, complained to management several times about repeated harassment by her supervisor. Id. at 571. Management told her they were aware of the problem but took no action to investigate or follow up on the complaint. Id. Even after Kimzey resigned because of her supervisor’s continued conduct, her manager “did not indicate that he would investigate her complaints or take any other action required by Wal-Mart’s open door policy.” Id. at 572. The Eighth Circuit held that “[a] reasonable jury could find that the continuing harassment and management’s indifference rendered Kimzey’s working conditions intolerable and forced her to quit.” Id. at 574-75. It highlighted the evidence that members of Wal-Mart knew Kimzey was being harassed, but “generally ignored those complaints.” Id. at 574. Because Kimzey demonstrated a reasonable belief there was no chance of fair treatment at Wal-Mart, the Eighth Circuit found no error in submitting the constructive discharge claim to the jury. Id. at 575; see also Sanders v. Lee Cty. Sch. Dist. No. 1,
By contrast, in Alvarez v. Des Moines Bolt Supply, Inc., the Eighth Circuit held the district court properly granted summary judgment on a constructive discharge claim when an employee failed to notify the employer of retaliatory harassment.
Other cases have similarly held, unless the employee demonstrates a reasonable belief there is no chance for fair treatment, he or she must give the employer a chance to respond before resigning due to retaliatory conduct.
“[A]ntidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable.” Poland v. Chertoff,
Courts generally require that the employee must give higher levels of management the opportunity to correct an adverse situation before quitting and claiming constructive discharge. The evident purpose of the requirement is to allow the employer as an entity—as opposed to, for example, an individual (and perhaps aberrational) supervisor—to redress the problem. However, to avoid a finding of constructive discharge, the employer’s response must be adequate; the employee need not suffer prolonged harassment or discrimination.
Lindemann, at 21-44 to 21-45 (footnotes omitted). Moreover, an employee can escape the requirement of coming forward by alleging there would have been no “chance for fair treatment” in the face of a complaint. Kimzey,
Courts have consistently required “something more” for constructive discharge claims than for ordinary discrimination or retaliation. Pa. State Police v. Suders,
The First, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits consider whether the employee reasonably gave the employer an opportunity to respond before claiming constructive discharge. See, e.g., EEOC v. Kohl’s Dep’t Stores, Inc.,
The general rule is that a reasonable employee must remain and fight discrimination on the job. Indeed, even when the employee is faced with what he anticipates will be an intolerable job environment, courts generally hold that the employee should not quit precipitously, but rather should remain to see whether those fears in fact do materialize. Moreover, an employee cannot simply speculate that intolerable conditions will develop, that an impending discharge will occur, or that management will ignore the problem.
Lindemann, at 21-41 to 21-42 (footnotes omitted).
Haskenhoff failed to establish as a matter of law that it would have been fruitless to give HES management more time to respond. To the contrary, HES was actively engaged in responding to her complaint when she quit. It was for the jury to decide, under proper instructions, whether she jumped the gun, or rather, was constructively discharged. A reasonable employee has “an obligation not to assume the worst and not to jump to conclusions too quickly.” Brenneman,
Instruction No. 33 omitted language requested by HES and required under our precedent stating the employee must give the employer “a reasonable chance to resolve the problem.” Van Meter Indus.,
F. Whether the Expert Testimony of Dr. Fitzgerald Should Have Been Excluded. Because the issue is likely to arise on remand, we will discuss whether the district court abused its discretion by allowing the testimony of Dr. Fitzgerald. Iowa Rule of Evidence 5,702 (2014)
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
HES argues expert testimony by Dr. Fitzgerald should not have been admitted because it “invade[s]' the province of the court to determine the applicable law and to instruct the jury as to that law.” In re Det. of Palmer,
HES’s challenge to Dr, Fitzgerald’s testimony focused on the linkage to erroneous jury instructions. Because we are reversing and ordering a new trial based on the instructional errors, the admissibility of her testimony will be in a somewhat different context on remand. We review the general parameters of expert testimony.
“An opinion is not objectionable just because it embraces an ultimate issue.” Iowa R. Evid. 5.704 (2017). We favor a “liberal view on the admissibility of expert testimony.” Ranes,
The district court allowed Dr. Fitzgerald’s testimony, finding she was “qualified as an expert on the subjects presented, as provided by Iowa Rule of Evidence 5.702.” Dr. Fitzgerald testified she was hired for two reasons: (1) to speak with Haskenhoff and evaluate whether she displayed typical victim behavior in response to harassment, and (2) to examine HES’s policies and procedures on sexual harassment and opine whether they met accepted standards in the field of human resources. She opined that Haskenhoff suffered from major depressive disorder and posttraumatic stress disorder, described these conditions for the jury, and stated why they may be caused by harassing behavior. She testified about whether this was common for victims of harassment. She also testified about what a “reasonable” company should do to prevent sexual harassment according to human resources standards and whether HES conformed to those standards. She skirted close to the line prohibiting testimony on legal conclusions:
A, ... [T]here’s a distinction between—that I should make here—between violation of a company’s policy and violation of the law.
Because they’re not—although there’s a great deal of overlap, they’re not always exactly the same. So there are things that can violate a company’s pоlicy and not violate the law....
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Q. Okay. “The standard of professional practice says an investigation,” and then you set out steps a competent investigator would take in order to conduct a real investigation into this or any other matter. And what are those steps? A. Well, I probably should have said “should” instead of must, because it’s not the law or anything. But the common practice recommendation....
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Q. And your testimony doesn’t purport to tell the jurors what the law is proscribing sex harassment, does it? A. No, I do not speak to legal issues.
Testimony that particular conduct violated the ICRA clearly would be an inadmissible legal conclusion.
Expert testimony on the standard of care or standard of practice is generally permitted in negligence actions. See Alcala,
IY. Disposition.
For those reasons, we reverse the district court’s ruling denying HES’s motion for new trial, vacate the judgments for plaintiff, and remand the case for a new trial consistent with this opinion.
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW TRIAL.
Notes
. Haskenhoff posted on social media two days later to a friend, "[J]ust wanted to let you know that [I] quit Homeland yesterday without giving any notice, had enough of Kevin's bullshit vulgarity and juvenile behavior and favoritism ... followed your lead LOL[.]”
. It has been suggested that we should not rely on federal law because Iowa civil rights
. It has been suggested that Vance created two types of negligence liability, negligence in failing to prevent the harassment and negligence in failing to remedy it. But the standard for both negligent failure to prevent and negligent failure to remedy is the same: an employer is only liable if he knows or should have known of the harassment and failed to take prompt measures to rectify it. See, e.g., Ocheltree v. Scollon Prods., Inc.,
The employer’s knowledge and response are key: if the; employer did not have notice of the harassment, either actual or constructive, the employer is not liable. If an employer is negligent in failing to discover workplace harassment, the employee proceeds under a should-have-known framework, but the employer's responsive actions are still relevant. See, e.g., Sharp,
. See Rock v. Blaine, No. 8:14-CV-1421 MAD/CHF,
. See Pattern Jury Instruction for Cases of Emp’t Discrimination for the Dist. Cts. of the U.S. Ct. of Appeals for the First Circuit 2.3 (2011) (requiring plaintiff to prove six elements, including “Fifth, [defendant; management level employees of defendant] either knew or should have known of the harassment; and Sixth, [defendant; management level employees of defendant] failed to take prompt and appropriate remedial action” (em- ' phasis added) (footnote omitted)); Third Circuit Model Civil Jury Instruction 5.1.5 (2016) ("You must find for [defendant] if you find that [defendant] has proved both of the following elements by a preponderance of the evidence; First, [Defendant] exercised reasonable care to prevent harassment in the workplace on the basis of [protected status], and also exercised reasonable care to promptly correct any harassing behavior that does occur.” (Emphasis added.)); Fifth Circuit Pattern Civil Jury Instruction 11.4 (2014) (“Plaintiff [name] must prove that; a. the harassment was known by or communicated to a person who had the authority to receive, address, or report the complaint, ... or the harassment was so open and obvious that Defendant [name] should have known of it; and b. Defendant [name] failed to take prompt remedial action designed to stop the harassment.” (Emphasis added.)); Fed. Civil Jury Instruction of the Seventh Circuit 3.04 (2015) (stating plaintiff must prove “seven things by a preponderance of the evidence; ... 7. Defendant did not take reasonable steps to [correct the situation]/[prevent harassment from recurring”] (emphasis added)); Model Civil Jury Instruction for the Dist, Cts. of the Eighth Circuit 8.42 (2017) (requiring plaintiff to show seven elements, including “Seventh, the defendant failed to take prompt and appropriate corrective action to end the harassment”); Model Civil Jury Instructions for the Dist. Cts. of the Ninth Circuit 10.7 (2017) (“The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence; ... 2. the defendant or a member of the defendant’s management knew or should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment." (Emphasis added.)).
. Nor is the plaintiff's burden of proof addressed in Instruction No. 22, entitled "Existence of Official Policies—Explained,” which told the jury that they could "consider whether the defendant exercised reasonable care to"
[a] Monitor the workplace;
[b] Provide a system for making complaints;
[c] Encourage employees who believe they are being harassed to complain;
[A] Conduct prompt, thorough and impartial investigations into any potential sexual harassment they become aware of, whether it is through a complaint or observation or hearsay;
[e] Reasonably assure that any person who reports sexual harassment will not suffer retaliation;
[f] Communicate their harassment policy to employees so employees will understand what they may and may not do in the workplace;
[g] Educate the workforce, especially members of management, with appropriate training to avoid committing sexual harassment. ...
(Emphasis added.) This instruction allowed the jury to find for Haskenhoff if HES was negligent in any of the above respects, even if the jury found the employer in fact took prompt and appropriate remedial action to end the harassment.
. Hillrichs v. Avco Corp. is not to the contrary.
. Because it may arise on remand, we clarify Haskenhoff cannot prove that HES "knew or should have known” and failed to take remedial action by showing only that Howes "knew what he was doing” when he behaved inappropriately toward Haskenhoff. For example, the following exchange took place between Wendland and Haskenhoff’s counsel regarding the alleged harassment:
Q. So regardless of whether somebody complains, if men are commenting on another female’s breasts in the workplace, that would be a violation of Homeland’s policy? A. Absolutely. If it was brought to my attention and I knew about it or anybody in the company knew about it, we .would address it immediately.
Q. Including the plant manager? A. Including the plant manager.
Q. And obviously if your plant manager is making the comments about a woman’s breast, he knows he’s doing that; yes? It is not sufficient that the perpetrator himself knows what he is doing, even if he is a supervisor. Rather, to be placed on actual notice, someone "with authority to address the problem” must be notified. Sharp,164 F.3d at 930 (quoting Nash v. Electrospace Sys., Inc.,9 F.3d 401 , 404 (5th Cir. 1993); see also Sandoval v. Am. Bldg. Maint. Indus., Inc.,578 F.3d 787 , 801 (8th Cir. 2009) ("An employer has actual notice of harassment when sufficient information either comes to the attention of someone who has the power to terminate the harassment, or it comes to someone who can reasonably be expected to report or refer a complaint to someone who can put an end to it.”). The inquiry must focus on whether someone with authority to discipline Howes and to take remedial action knew of and failed to address the conduct. Sharp,164 F.3d at 930 ("In the context of sexual harassment, such persons are those with remedial power over the harasser.”). Alternatively, Hasken-hoff may prove constructive knowledge by showing harassment was so.open and pervasive that, in the exercise of reasonable care, it should have been discovered by management-level employees. See Alvarez v. Des Moines Bolt Supply, Inc.,626 F.3d 410 , 422 (8th Cir. 2010).
. This standard does not require retaliation to be the sole cause; the retaliatory motive may combine with other factors to produce the result so long as "the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel's back.” Burrage v. United States, 571 U.S. -, -,
. The phrase "because of” does not require a motivating-factor standard of causation. As the Supreme Court noted in Nassar, the default rule in interpreting causation in tort is that "[i]n the usual course, this standard requires plaintiff to show ‘that the harm would not have occurred' in the absence of—that is, but for—the defendant's conduct.” 570 U.S. at -,
. Iowa had a statute predating Title VII, a criminal provision, which stated,
1. Every person in this state is entitled to the opportunity for employment on equal terms with every other person. It shall be unlawful for any person or employer to discriminate in the employment of individuals because of race, religion, color, national origin or.ancestry. However, as to employment such individuals must be qualified to perform the services or work required.
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3. Any person, employer, labor union or officer of a labor union or organization convicted of a violation of subsections one (1) or two (2) of this Act shall be punished by a fine not to exceed one hundred dollars or imprisonment in the county jail not to exceed thirty days.
1963 Iowa Acts ch, 330, § 1 (codified at Iowa Code § 735,6 (1966), subsequently transferred to section 729.4 (1979)). This statute makes no mention of retaliation.
. See 1965 Iowa Acts ch. 121, § 8 (codified at Iowa Code § 105A.8 (1966)). The Iowa provision used the language in Title VII of the Civil Rights Act of 1964. Compare id. § 8(2) (prohibiting retaliation "because such person
. For example, in Wholf v. Tremco, Inc., the Ohio Court of Appeals applied a higher causation standard to a retaliation claim under its own civil rights statute.
[T]he [Ohio] General Assembly separated status-based discrimination claims from retaliation claims in separate subsections of R.C. 4112.02. And, despite Wholf's argument to the contrary, Ohio’s anti-retaliation provision is nearly identical to Title VII’s anti-retaliation provision.
Id. at 908. The court also pointed out that "the ‘but-for’ standard articulated in Nassar is not a new standard; it is a clarification of the standard that has been applied in retaliation cases since the Supreme Court decided Price Waterhouse [v. Hopkins,
Other courts recognize that a higher standard of causation is necessary for retaliation claims, though they define the standard in varying ways. See Hensley v. Botsford Gen. Hosp., No. 323805,
. The performance improvement plan stated Haskenhoff must abide by the following: (1) not "walk[ ] off the job and abandon [her] job responsibilities”; (2) not "us[e] vulgar language towards another”; (3) not "send[] hostile, disrespectful, or inappropriate emails to employees”; (4) not "post[] comments about the company or other employees on a social network”; (5) go through the chain of command rather than ''addressing] the problem [her]self”; (6) attend work during the "core work hours of 8AM to 4PM” and "approv[e] ahead of time” coming in or leaving early; (7) not leave the plant "during the work day for non-work related reasons”; and (8) approve paid time off "ahead of time.”
. It has been suggested our decision in Van Meter Industries was not precedential on this point. However, whether Sires could recover without giving the employer a “reasonable opportunity to resolve the problem” was a fighting issue. That was the basis for the district court’s reversal of the commission's decision. See Van Meter Indus.,
. It has been suggested giving the employer a reasonable chance to resolve the problem "is another effort to transplant” the Faragher-Ellerth defense. However, this assertion overlooks that the Faragher-Ellerth defense has already been held to apply to certain instances of constructive discharge. See Pa. State Police v. Suders,
Principles of deterrence and avoidance un-dergird theories of employment liability. See Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An Affirmative Answer, 85 Iowa L. Rev. 1035, 1061 (2000) (“The purpose of Tifie VII is to encourage anti-harassment policies, promote conciliation, and prevent harassment.”). These principles are evident in both the doctrine of constructive discharge and the Faragher-Ellerth defense. See Shari M. Goldsmith, The Supreme Court’s Suders Problem: Wrong Question, Wrong Facts Determining Whether Constructive Discharge Is a Tangible Employment Action, 6 U. Pa. J. Lab. & Emp. L. 817, 835 (2004) ("By emphasizing the employee’s obligation to seek redress and the employer’s duty to avoid harm, the dominant approach to constructive discharge goes to the heart of the Court’s Ellerth/Faragher motivations and purpose.”).
If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.
Faragher,
. In Missouri, a previous case held an employee did not have to allow a reasonable opportunity to respond before claiming constructive discharge. See Pollock v. Wetterau Food Distribution Grp.,
. Iowa Rule of Evidence 5.702 has since been amended and now reads,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Iowa R. Evid. 5.702 (2017).
Concurrence Opinion
(concurring in part and.dissenting in part).
I concur in the résult reached in the opinion authored by Justice Waterman. I agree the jury verdict 'must be reversed and a new trial must be granted. I write separately because I do not agree with the result or reasoning on all the issues addressed in the opinion by Justice Waterman. As to those issues with which I disagree, I join in the opinion by Justice Appel.-
I. Direct Negligence Claim.
The two opinions in this case both hold that a plaintiff may pursue a hostile-work-environment claim against an employer under the Iowa Civil Rights Act based on supervisor harassment under a legal theory of either 'vicarious liability or negligence. I concur. The two opinions also hold an employer cannot assert the affirmative defense recognized for vicarious liability claims in Faragher v. City of Boca Raton,
It is a general rule of law that an employer is hable for negligently creating or continuing a hostile work environment. See Vance v. Ball State Univ., 570 U.S. -, -—,
II. Retaliatory Discharge: Causation.
The two opinions disagree on the proper causation standard for retaliatory discharge. I agree the causation standard under the Iowa Civil Rights Act is the same for discrimination claims under Iowa Code section 216.6(l)(a) (2011) as it is for retaliation claims under section 216.11(2). I also agree the standard is “a motivating factor.” Nevertheless, the district court instruction modified this standard to only require that the discrimination “played a part.” This change in the standard was not justified.
In DeBoom v. Raining Rose, Inc., we explained that a motivating factor must
only have “played a part” and “need not have been the only reason.”
III. Retaliatory Discharge: Adverse Employment Action.
Both opinions agree an adverse employment action is one that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington N. & Santa Fe Ry. v. White,
The court instructed the jury that one example of an adverse action is a constructive discharge. A constructive discharge occurs “when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Van Meter Indus. v. Mason City Human Rights Comm’n,
But constructive discharge can also be a separate claim, recognized in extreme cases of hostile work environments. In this type of constructive discharge claim, the employee must show the environment was so bad he or she had no choice but to quit. See Pa. State Police v. Suders,
Here, the jury was instructed Hasken-hoff must show “she was subjected to sexual harassment or retaliation[,] which[] made her believe there was no chance for fair treatment at Homeland.” (Emphasis added.) It is possible the jury was confused by these alternatives. Under these instructions, a jury could find the sexual harassment was so severe and pervasive that Haskenhoff had no choice but to quit. But, Haskenhoff did not advance constructive discharge based on an extreme case of hostile work environment. She used constructive discharge as an example of retaliation. Even if the jury appropriately found constructive discharge based on the severity of the hostile work environment, it does not mean Homeland retaliated against Haskenhoff for reporting the harassment. Therefore, the erroneous instruction on adverse action was not harmless, and Homeland is entitled to reversal and a new trial.
IY. Constructive Discharge Instruction.
Both opinions agree that the district court did not err in the constructive discharge instruction by explaining that an employer does not need to want the employee to quit. Both opinions also agree thе district court erred by using a subjective standard in the constructive discharge instruction. I concur on both of these issues. See Van Meter,
Constructive discharge is a concept of reasonableness. At times, it would not be reasonable for an employee to quit without giving the employer a chance to resolve the problem. See id. at 511. But, at other times, it would not be reasonable to require an employee to remain in intolerable working conditions. See id. Evidence indicates employees often choose not to report discrimination in the workplace at the time it occurs. See Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc. & The National Women’s Law Center in Support of Petitioner, Green v. Brennan, 578 U.S. -,
Y. Conclusion.
First, an employee may bring a direct-negligence action against an employer based on a supervisor’s harassment. The employer does not have the benefit of an affirmative defense when defending such a claim. The employee must, however, show the employer knew or should have known of the harassment and failed to take reasonable action to stop it within a reasonable period of time. Second, in a claim for retaliatory discharge, the employee must show the employee’s engaging in a protected activity was a motivating factor in the employer’s decision to take an adverse employment action. An adverse-employment action is one that would have deterred a reasonable employee from filing a complaint. Actions are not ordinarily adverse as a matter of law, but depend on the circumstances. An employer taking such an action need not really want the employee to quit, but the employee’s decision to quit must be objectively reasonable. A constructive discharge may occur if a reasonable employee would find the working conditions intolerable, even if that employee did not give the employer an opportunity to correct the problem.
Because the jury instructions in this case did not accurately state the above legal principles, I concur in part and with the result of the opinion authored by Justice Waterman. I would remand for retrial on both counts. I dissent in part from that opinion and join in part the opinion authored by Justice Appel for the reasons expressed above.
Concurrence Opinion
(concurring in part and dissenting in part).
I respectfully concur in part and dissent in part from the majority/plurality opinion. In my view, only the instruction related to material adverse action in connection with plaintiffs retaliation claim is flawed. I find the district court properly instructed the jury on all other issues in this case.
I. Factual and Procedural Background.
Homeland Energy Solutions, LLC (HES) is an ethanol processing facility in Lawler, Iowa, where it opened in February 2009. Tina Haskenhoff began work at HES
Kevin Howes was Haskenhoffs supervisor. Howes, along with several of Hasken-hoffs coworkers, repeatedly made demeaning sexual comments to Haskenhoff and engaged in other offensive behavior. This included Howes frequently commenting on Haskenhoffs breasts in front of Haskenhoff and with other HES employees.
In November 2010, Haskenhoff informed Howes that she would be absent from a meeting for a medical appointment. Howes asked about the reason for the appointment and, upon learning that it was for a mammogram, told Haskenhoff that she should have the breast exam in the parking lot in order to earn some money.
Later that week, Haskenhoff told Chad Kuhlers about the offensive behavior. Kuh-lers was on the board of directors for HES. Kuhlers immediately reported this information to HES’s president and CEO Walter Wendland and to human resource manager Sarah Frein.
Howes learned that Haskenhoff had complained about him, and he met with Haskenhoff to ask that she drop the complaint. Howes said that he was worried he was going to be fired. Wendland also met with Haskenhoff about the complaint, stating the employees of HES were “like family.” Haskenhoff reported later that she found Howes’s and Wendland’s behaviors intimidating, and she feared the consequences to her employment if she continued with the complaint. Haskenhoff agreed to drop the complaint on the assumption that Howes’s behavior would change.
The sexually offensive behavior, however, continued. Finally, on August 8, 2011, Haskenhoff overheard Howes tell another employee that'Haskenhoff was marrying her fiancé for the money. This comment upset Haskenhoff who told a coworker that Howes was' “a fucking asshole.” Hasken-hoff left work in the middle of the day and sent an email to Howes complaining about his comment.
On August 17, Haskenhoff filed a sexual-harassment complaint against Howes with Fréin. Several meetings occurred between the participants thereafter. Finally, on August 30, Haskenhoff was asked to meet with Wendland, David Finke—the CFO and head of human resources—and Howes. At this meeting, Haskenhoffs sexual-harassment complaint was discussed. Additionally, Howes presented' Haskenhoff with a ninety-day “performance improvement plan” for using vulgar language when referring to Howes and wаlking off the job on August 8. The plan noted, “Failure to adhere to these expectations/conditions will result in further disciplinary action up to termination.”
Haskenhoff later said that after the August 30 meeting, she realized HES would take no effective action against Howes and that if she continued to complain about the harassment she would be fired. On August 31, Haskenhoff confronted Finke and accused him of letting Howes get'away with the harassment and permitting Howes to retaliate against her. Haskenhoff resigned.
On May 21, 2012, Haskenhoff brought charges of employment discrimination at the Iowa Civil Rights Commission. The commission gave Haskenhoff a release to bring suit, after which she brought suit in district court for sexual harassment and retaliation under the Iowa Civil Rights Act (ICRA). The jury found in favor of Hask-enhoff and awarded her damages. HES appealed, and we retained the appeal.
II. Relationship Between State and Federal Civil Rights Statutes.
A. Introduction. Before analyzing the substantive issues in this case, it is impor
First, the modeled-after or mirror theory generally overlooks the fact that the ICRA, as well as Title VII, were preceded by more than twenty state statutes. See Andrea Catania, State Employment Discrimination Remedies and Pendent Jurisdiction Under Title VII: Access to Federal Courts, 32 Am. U. L. Rev. 777, 782 n.24 (1983) [hereinafter Catania], Beginning in the 1940s, states passed civil rights statutes that included many of the features now embraced in Title VII. Alex Elson & Leonard Schanfield, Local Regulation of Discriminatory Employment Practices, 56 Yale L.J. 431, 434 (1947). There is a rich body of commentary on these state laws that seems to have been overlooked in our cases suggesting that the ICRA mirrors or is modeled after Title VII.
In fact, both the ICRA and Title VII drew from this preexisting body of state law. See Pippen v. State,
Thus, the ICRA and Title VII both mirrored and were modeled after preexisting state law in the same general sense that the ICRA is modeled after or mirrors federal law. For example, the “because of’ causation language in the ICRA and Title VII, which is at the heart of one of the issues in this litigation, was used in state civil rights statutes that predate them.
Second, the modeled-after or mirrors theory particularly overlooks the fact that Iowa had a preexisting civil rights statute before Title VII was enacted. Iowa’s first civil rights act was enacted in 1883 shortly after the United States Supreme Court, in an appalling decision corrected only decades later, held that a key portion of the Federal Civil Rights Act of 1871—prohibit-ing discrimination by private persons—was unconstitutional. See United States v. Harris,
Third, while the texts of the two statutes are sometimes similar, they are often quite dissimilar. There are material differences between the two statutes in scope, structure, and remedy. Thus, a generalized statement that the ICRA is modeled on, similar to, or mirrors Title VII even from a textual viewpoint is often not true.
B. Legislative Direction that the ICRA “Shall Be Construed Broadly to Meet Its Purposes.” As all judges, lawyers, and litigants know, the ICRA has many ambiguities and gaps which courts are called upon to resolve and fill in the context of adversarial litigation. While the
Our better reasoned cases show that this marked textual difference is consequential. In Pippen, we pointed out that a number of other state supreme courts have construed similar statutory language in civil rights acts to require the “widest constitutional application.” Id. (quoting Fair Emp’t Practicеs. Comm’n v. Rush-Presbyterian-St. Luke’s Med. Ctr.,
A few state civil rights statutes passed prior to the ICRA also contained provisions directing courts to construe the statute broadly. See, e.g., Del. Code Ann. tit. 6, § 4502 (1963) (“This chapter shall be liberally construed to the end that the rights herein provided for all people without regard to race, creed, color or national origin may be effectively safeguarded.”); Wash. Rev. Code § 49.60.020 (1957) (“The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof.”); W. Va. Code § 5-11-265(161) (1961) (“The provisions of this article shall be liberally construed to accomplish its- objectives and purposes.”); Wis. Stat. § 111.31 (1961) (“All the provisions of this subchapter shall be liberally construed for the accomplishment of this purpose.”).
Plainly, a narrow construction of the ICRA would be in defiance of the legislative mandate to broadly construe the statute to effectuate its purposes and would amount to a judicial recrafting of the statute. As we stated in Pippen, an Iowa court “must keep in mind the legislative direction of broadly interpreting the Act when choosing among plausible legal alternatives.”
■ The legislative direction that we broadly interpret the ICRA makes federal authority that chooses narrow constructions among, available options suspect. Federal courts, and particularly the United States Supreme Court, have demonstrated a marked tendency to embrace a narrow construction of federal civil rights statutes in the face of more generous plausible
And these are only the cases that Congress managed to override. Whenever a highly divided United ■ States Supreme Court chooses a narrow interpretive path under federal civil rights statutes, we must consider whether the dissenting opinion is more consistent with the legislative di
The directive to construe the ICRA broadly has had impact. For instance, in Goodpaster, we considered whether an intermittent or episodic impairment—multiple sclerosis—fell within the definition of “disability” under the ICRA.
In construing a provision of the ICRA, the legislative direction to broadly construe the statute to effectuate its purposes must be recognized. To ignore this provision is to rewrite the statute to achieve desired policy results.
C. Textual Differences Between the ICRA and Federal Civil Rights Statutes. When there are textual differences between the ICRA and federal civil rights statutes, we must be attentive to those differences. When there are textual differences, the modeled-after or mirror declarations have no application, and indeed an opposite conclusion may be more appropriate, namely, that differences in text are deliberate and substantive.
A good example of the need to recognize textual differences between the ICRA and federal civil rights law is Hulme v. Barrett (Hulme I),
We reversed. Id. at 632. We noted that while the federal statute had language explicitly limiting claims to persons above the age of forty, the ICRA had no such textual limitation. Id. at 631-32. In Hulme I, we correctly declined to follow federal precedent because the text of our statute was not modeled after and did not mirror federal law. As will be seen below, there
D. Structural Differences Between the ICRA and Federal Civil Rights Statutes. As pointed out in Pippen, there is also an important structural difference between the ICRA and various civil rights statutes. See
E. Interpretation of Gaps and Ambiguous Phrases. Civil rights statutes contain many notoriously open-ended or ambiguous phrases that cry out for interpretation. For ambiguous phrases, there is rarely only one plausible interpretation. See Hack v. President & Fellows of Yale Coll.,
Further, many legal structures developed by the United States Supreme Court are not found in the statutory text of Title VII and have been fashioned by the Supreme Court based on its policy perceptions. For example, the requirement that harassment be “pervasive and severe” in order to amount to actionable discrimination does not appear in the text of Title VII. See Meritor Sav. Bank, FSB v. Vinson,
These judicially developed constructs are not textually guided, but instead reflect the views of a majority of the United States Supreme Court on the subject of discrimination. If one believes, for example, that discrimination in the workplace is a relatively rare occurrence, the development of demanding judicial standards through interpretation or construction may seem to make sense. On the other hand, if one believes that discrimination is widespread and intractable, a different result might occur. Sperino, Revitalizing,
Because of the lack of textual support, it is not surprising that a number of courts have declined to create a Faragher-Ellerth defense for cases involving vicarious liability under state civil rights acts. See, e.g., Myrick v. GTE Main St. Inc.,
In making choices regarding ambiguous phrases and determining whether and how to All legislative gaps, Iowa courts are free to depart from what are often very narrow and cramped approaches of federal law.
Thus, in order to choose the best interpretive option on a statutory issue under the ICRA, it is not enough to simply cut and paste a version of federal law into the Northwest Reporter and call it a day.
F. Independent Interpretation of ICRA Consistent with Federalism and Congressional Intent Behind Title VII. When Congress enacted Title VII, approximately one-half' of the states had civil rights statutes already. Catania,
A conclusion that state courts should generally follow the twists and turns in federal law would be ironic in light of the congressional intent to allow, if not encourage, state experimentation.
G. A Note on Law of the Case, Stare Decisis, and Dictum. If one looks through our ICRA cases, federal cases are often simply cited for propositions of law without substantive discussion. Often times in this setting, we were simply restating legal principles that the parties were not contesting in the case. When a legal principle is embraced by the parties by agreement and is not contested on appeal, the court’s subsequent recitation of the legal principle is not a holding in the case that was a product of an adversary proceeding. See Berger v. Gen. United Grp., Inc.,
An uncoritested statement of law is not entitled to stare decisis. See, e.g., Hemingway,
III. Negligence Theory, Vicarious Liability, and the Faragher-El-lerth Defense.
A. Overview of the Issue. When an employee is sexually harassed by other employees, the question arises to what extent the employer may be held responsible for the actions of its employees under civil rights laws. One question is whether it should matter that the harassment was committed by a coworker or by a supervisor. If the harassment is by a supervisor, should the supervisor be considered an agent of the employer and thus provide a basis for vicarious liability? If different legal consequences flow from harassment involving a supervisor compared to harassment by coworkers, how does the law handle situations when harassers include both coworkers and supervisors?
As with many similar issues, nothing in the ICRA or Title VII expressly answers these questions, and as a result, courts are left to resolve the issue through statutory interpretation. Courts are required to fill the gaps in the statute in the crucible of an adversary proceeding.
B. Challenged Trial Court Instruction. The starting place of our analysis is a review of the jury instructions on Hasken-hoff s claim of negligence under the ICRA In Instruction No. 14, the marshalling instruction for sexual harassment, the jury was instructed Haskenhoff had to prove, among other things, that “6. Homeland Energy Solutions, L.L.C., knew or should have known of the occurrence of one or more sexually harassing incidents. ■ 7. Homeland Energy Solutions, L.L.C., acted negligently in creating or continuing a hostile work environment.” The language in Instruction No. 14 is drawn nearly verbatim from the United States Supreme Court description of direct negligence claims under Title VII provided in Vance v. Ball State University, 570 U.S. -, -,
With respect to negligence, Instruction No. 17 instructed the jury that
“Negligence” means failure to use ordinary care. Ordinary care is the care which a ' reasonably careful employer would use in similar circumstances. “Negligence” is doing something a reasonable careful employer would not do under similar circumstances, or failing to do something a reasonably carefulemployer would do under similar circumstances. ■■
Except for substituting-the term “employer” for “person,” Instruction No. 17 is a verbatim version of Iowa State Bar Association Jury Instruction 700.2 entitled “Ordinary Care—Common Law Negligence-Defined.” This instruction has been used countless times in the courts of this state in negligence cases.
Finally, in Instruction No. 24, the jury was instructed that
[o]nce an employer knows or should have known of sexual harassment, it must take prompt remedial action rea- ‘ sonably calculated to end the conduct. The employer has a duty to take this remedial action even if an employee asks the employer not to do anything.
(Emphasis added.) Instruction No. 24 is derived from the affirmative defense for vicarious liability claims from Faragher-Ellerth.
C. Overview oí Review of Jury Instructions. In fashioning jury instructions, we have repeatedly stated that a trial court “need not instruct in a particular way so long as the subject of the applicable law is correctly covered when all the instructions are read together.” State v. Uthe,
Our well-established Iowa caselaw is consistent with federal precedent. As noted by one federal appellate court, review of- jury instructions does not require “word-by-word hairsplitting.” Johnson v. Breeden,
The question in considering the legal sufficiency of a jury instruction is whether relevant elements of a claim “may be adequately conveyed to the jury by the evidence and by argument of counsel under the instruction that the court gave.” Hillrichs v. Avco Corp.,
When error in a jury instruction is not of constitutional magnitude, “the test of prejudice is whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice.” State v. Gansz,
D. Positions of the Parties.
1. Defendants. HES maintains the district court erred in its jury instructions by “adopting a common law negligence standard” and denying. HES’s affirmative de
HES recognizes .that in cases involving coworker harassment, a different, framework applies. -HES recognized that in Vance, the Supreme Court declared, “If the harassing employee is the victim’s coworker, the employer is liable only if it was negligent in controlling working-conditions.” 570 U.S. at -,
But HES claims that a plaintiff in a negligence case involving coworkers must prove more than the Vance formulation that the employer is liable only if it was negligent in controlling working conditions. Id. HES adds another element to the negligence claim. According to HES, in cases involving coworker harassment, the plaintiff is required to prove not only the presence of harassment that the employer knew or should have known existed, but also that the employer “failed to take prompt and appropriate corrective action.” McCombs v. Meijer, Inc.,
2. Haskenhoff. Haskenhoff argues that under the ICRA, a plaintiff may choose to proceed under either' a direct negligence or vicarious 'liability theory. She' asserts that she elected to proceed under a negligence theory, and thus the law related to vicarious liability claims against an employer is irrelevant,
Haskenhoff supports her choice-of-theories approach by citing language of the Supreme Court in Vance, 570 U.S. at -,
Because at trial Haskenhoff proceeded only on a -direct negligence theory, -she claims that HES was not entitled to the Faragher-Ellerth defense, which may be utilized only in a vicarious liability case. See Johnson v. Shinseki,
In addition, Haskenhoff maintains that HES was not prejudiced by the failure to give HES’s requested Faragher-Ellerth defense instruction. Haskenhoff argues the plaintiffs burden under a negligence standard is higher than that under Faragher-Ellerth. In a negligence case, Haskenhoff asserts, the plaintiff must prove the employer was negligent. In a vicarious liability case, however, the plaintiff does not have to prove negligence, and the defense has the burden of showing "prompt and effective” remedial action under Faragher-Ellerth.
E. The Distinction Between Direct Negligence Claims and Vicarious Liability Claims Under Federal and Civil Rights State Law.
1.Distinction between direct negligence and derivative liability. The federal and state civil rights caselaw clearly distinguishes direct negligence claims from claims based on vicarious liability. A direct negligence approach is generally used in federal cases under Title VII by plaintiffs who seek to thrust liability onto employers for the harassment they suffered at the hands of eoworkers. The direct negligence cases stress that employer liability for coworkers “is direct liability for negligently allowing harassment, not vicarious liability
for the harassing actions of employees.” Williamson v. Houston,
2. Two types of direct negligence: negligence in the creation and negligence in the continuation of harassment. The Supreme Court explored some elements of a direct negligence claim in Vance, 570 U.S. at -,
3. Relevant evidence in fact-based direct negligence actions. In discussing direct negligence actions as a distinct alternative to a derivative claim based on vicarious liability, the Vance Court observed, “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.” Id. at -,
There is dicta in support of the notion that supervisors may be considered coworkers for purposes of a direct negligence claim brought under Title VII. In Ellerth, the Supreme Court observed that while a derivative claim based upon a vicarious liability might be available for claims against supervisors under certain circumstances, “an employer can be liable, nonetheless, where its own negligence is a cause of the harassment.”
F. The Kaleidoscope of Federal Circuit Model Jury Instructions on Direct Negligence in Harassment Cases. A survey of federal circuit court model jury instructions for harassment claims based on direct negligence demonstrates the kaleidoscope of verbal formulations that may be used in instructing juries on direct negligence claims. See generally 3C Kevin F. O’Malley et al., Federal Jury Practice and Instructions § 171:23, at 262-77 (6th ed. 2014) [hereinafter O’Malley 2014] (providing model jury instructions from the federal circuits and collecting cases on those instructions). Some instructions are long, some are short. In describing the plaintiffs burden in showing the employer was negligent, some use language of reasonableness, some use the somewhat narrower language of prompt and appropriate or effective remedial action, and many use both.
The model instruction for the United States Court of Appeals for the Third Circuit is detailed and elaborate. According to the Third Circuit model instruction, in sex: ual harassment cases involving nonsupervi-sors, the plaintiff must show that management “knew, or should have known of the abusive conduct.” Id. at 264. If the plaintiff proves its case, however, the defendant is allowed an affirmative defense. Id. at 265.
Interestingly, though, the affirmative defense, which the defendant has the burden of proving, is couched in terms of reasonableness. See id. According to the Third Circuit model instruction, in order to satisfy the requirements of the affirmative defense, the defendant must show (1) that it “exercised reasonable care” to prevent the harassment and to promptly correct any harassing behavior, and (2) that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities.” Id. On the first prong of
The Fifth Circuit takes a materially different tack in a lengthy model instruction on direct negligent-harassment claims by coworkers. 3C Kevin F. O’Malley et al., Federal Jury■ Practice and Instructions § 171:23 (6th ed.), Westlaw (database updated Aug. 2016). Under the Fifth Circuit instruction for a claim of a hostile work environment involving coworkers based on direct negligence, the plaintiff must show the defendant “knew, or in the exercise of reasonable care should have known, that [the plaintiff] was being [sexually harassed] because of the [Plaintiffs sex].” Id. The Fifth Circuit instruction states the plaintiff must show that the harassment was “known by or communicated to a person who had authority to receive, address, or report the complaint,” or that the harassment was so “open and obvious” the defendant should have known of it. Id. In addition, the plaintiff must prove the defendant failed to take “prompt remedial action” to stop the harassment. Id. Interestingly, though, the instruction further defines “prompt remedial action” as conduct “reasonably calculated to stop the harassment and remedy the situation.” Id.
The' Seventh Circuit model jury instruction eschews the arguably meandering instruction of the Fifth Circuit for a more direct approach. O’Malley 2014, at 270-71. In a harassment case involving negligence, a jury in the Seventh Circuit is instructed that when harassment has been proved, an employer is liable if it “knew or should have known about the conduct” and “did not take reasonable steps to [correct the situation]/[prevent harassment from recurring].” Id. at 271. That is it. The Seventh Circuit model instruction is quite similar to the marshalling instruction given by the district court in this case and, compared to the Fifth Circuit model instruction, has the advantage of simplicity.
The Eighth Circuit model instruction requires that the plaintiff show the defendant “knew or should have known” of the alleged conduct and “the defendant failed to take prompt and appropriate corrective action.” Id. at 272. Although this instruction differs somewhat from the instruction in our case, “prompt and appropriate corrective action” does not seem to be a lesser standard than “reasonableness,” An action that is not “prompt” might still be considered reasonable by a jury, while an action that is “appropriate” is surely also reasonable.
The Ninth Circuit has a longer model instruction for direct negligence claims, but it comes to essentially the same place as the Seventh Circuit’s instruction. Id. at 274-75. Under the.Ninth Circuit’s instruction, a plaintiff who proves harassment and seeks to impose liability on the employer must show that “the defendant or a member of the defendant’s management knew or should have known of the harassment and failed- to take prompt, effective remedial action reasonably calculated to end the harassment.” Id. at 274. The Ninth Circuit instruction further defines who qualifies as management and states the defendant’s remedial action “must be reasonable and adequate.” Id. Although more detailed, there is no substantive difference between
What these diverse jury instructions demonstrate is that there is not one “correct” jury instruction in a direct negligence case..They can vary from the fairly complex instructions used by the Fifth and Ninth Circuits to the very simple instruction utilized by the Seventh Circuit.. It is clear, however, that the model instructions in the Fifth, Seventh, Eighth, and Ninth Circuits are consistent with the trial court’s instruction in this case.
G. Iowa Caselaw on Negligence Claims, In the pre-Faragher-Ellerth cases of Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Commission,
In another pr e-Faragher-Ellerth' case, Vaughn v. Ag Processing, Inc., we again were asked to consider a hostile-environment harassment claim, this time based on religion.
Unlike in Chauffeurs and Lynch, however, we found in Vaughn that the defendant was entitled to prevail. Id. at 639. We found that while the defendant knew of the harassment, the employer took prompt remedial action to remedy the problem. Id. at 634. We explained “prompt remedial action” as placing “a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it.” Id. At 634’ (emphasis addéd). We noted that whether an employer takes such reasonable steps ‘ to remedy the harassment is a question of fact. Id. We further noted in Vaughn that the employer’s conduct was “especially reasonable” in light of the evidence which showed that the employer did not know the plaintiff was a victim of religious discrimination. Id. at 635. Under Vaughn, it seems that “prompt remedial action” and “reasonableness” are interchangeable concepts, much like the model instructions in the Fifth and Ninth Circuits.
Our first post-Faragher-Ellerth ease involving a claim of a hostile environment was Farmland Foods,
In Boyle,
H. Discussion: Can the Faragher-El-lerth Defense “Jump the Track”?
In direct negligence cases, an employer is entitled to a jury instruction stating that the plaintiff has the burden of proving the employer’s negligence “leads to the creation or the continuation of a hostile work environment.” Vance, 570 U.S. -,
As a result, HES’s argument that it was entitled to an affirmative Faragher-Ellerth defense is without merit. Interestingly, however, the trial court did instruct the jury on the first prong of the Faragher-Ellerth affirmative defense in Instruction No. 24. That instruction stated that HES had the burden of showing that it took prompt and appropriate remedial action reasonably calculated to end the conduct. In a negligence action, however, HES does not have any burden. Rather, the burden is always on the plaintiff to prove negligence. But HES sought this instruction and does not object to it now. It may have been wrong, but HES cannot complain about an instruction it sought and does not challenge on appeal.
I now turn to- the question of whether the district court properly instructed the jury on what the plaintiff must show to affix liability to HES based upon direct negligence. The marshalling instruction required the plaintiff to prove that HES acted “negligently in the creation or continuance of a hostile work environment.” These words are virtually lifted verbatim from Vance and are a correct statement of law.
So far so good. Next, the district court offered an instruction on negligence. The district court instructed the jury that “negligence” means “the failure to exercise ordinary care.” Further, “ordinary care is the' care which a reasonably careful employer would use under all the circumstances.”
HES asserts the district court’s formulation is inadequate. It insists the district court was required to instruct the jury that the plaintiff must show not that the employer failed to act reasonably, but instead that the employer failed to use “prompt and appropriate remedial action.”
In short, HES insists on magic words. But not only does our law not require magic words for jury instructions, but. such demanding word regimes are contrary to our declarations that the trial court “need not instruct in a particular way so long as the subject of the applicablе law is correctly covered.” Uthe,
One can only wonder what the difference is between acting reasonably and act-
HES’s formulation also uses the term “prompt” while the district court’s instruction simply referred to reasonability. This is not the stuff of reversible error. Our caselaw has repeatedly equated prompt remedial action with action “reasonably calculated to stop the sexual harassment” or placing a “reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it.” Boyle,
In considering the negligence instructions given in this case, the instructions accurately reflect the law. The instructions were very close to the model instruction in use in the Seventh Circuit and, in their totality, are certainly consistent with the model instructions in the Fifth and Ninth Circuits. The district court instructed the jury in the marshalling instruction that Haskenhoff had the burden to prove that HES “knew or should have known” of the harassment. The instruction further required Haskenhoff to prove that HES “acted negligently in creating or continuing a hostile work environment.” The district court also gave a proper instruction to the jury regarding the meaning of negligence as a failure to use ordinary care “which a reasonably careful employer would use in a similar circumstance.”
The fact the instruction was adequate is demonstrated by the record in this case. In her opening statement, Haskenhoff told the jury that “an employer has a duty to .., protect its employees insofar as they can reasonably do so from sexual harassment.” Further, Haskenhoff told the jury “if an employer knows about sexual harassment and lets it continue for a month—let alone several' months—and it violates the law ... the employer must compensate the victim for whatever harm is caused.”
In its opening statement, HES responded that “this is a case about a lab manager that failed for months or years to report prohibited conduct and, before HES could act on the information she reported, quit on the job.” HES further asked the jury “will the evidence show that the plaintiff followed HES policy ... and that HES was given a chance to promptly remedy the conduct that she did report?” Then in closing argument, Haskenhoff told the jury,
Homeland acted negligently.... They did not monitor the workplace. They did nothing more to protect Tina going forward .... They did nothing to stop it. They allowed the environment to continue and caused great harm to Tina.... Once the employer knows or should have known about sexual harassment, it must take prompt remedial action reasonably calculated to end the conduct.
(Emphasis added.) Thus, in the closing statement, Haskenhoffs counsel told the jury that the obligation of the employer, once it knew dr should have known about the harassment, was to take “prompt remedial action reasonably calculated to end the conduct.”
In its closing statement, HES picked up on the plaintiffs closing argument. HES
Further, HES told the jury that
Instruction 17 and 24 go to the last element, if you will. What the plaintiff has to prove is that this employer was either not doing something a reasonable careful employer would do or failed to do something a reasonably careful employer would do.
HES further asked the jury “did the company put a plan together that was reasonably calculated to end the conduct?” According to HES, the company “wanted it to just stop,” and cited “the evidence here that it did.” In rebuttal, Haskenhoff told the jury, “You have to conduct prompt, thorough and impartial investigation into any potential sexual harassment, however you become aware of it, whether it is in a written complaint or not, whether you see or whether it’s just a rumor.”
What the opening and closing arguments demonstrate is that the instructions, though brief like the Seventh Circuit model instruction, were clearly and demonstrably sufficient to allow HES to make the argument which it claims on appeal it was foreclosed from making. See Hillrichs,
IV. Causation Instruction on Retaliatory Discharge.
A. Introduction.
1. Ambiguity in “because” language. Causation has been one of the most controversial aspects of employment law. The literature is chock-full of alternate causation standards, including “but for,” “motivating factor,” “substantial factor,” “a motivating factor,” and similar terms. There are arguments aplenty for each of them. See generally Kendall D. Isaac, Is It “A” Or Is It “The”? Deciphering the Motivating-Factor Standard in Employment Discrimination and Retaliation Cases, 1 Tex. A&M L. Rev. 55, 73-77 '(2013); Schwartz, 150 U. Pá. L. Rev. at 1708 (citing various different approaches to causation requirement).
By using “because” in Iowa Code section 216.11(2), the section related to causation in retaliation cases, the Iowa legislature has left the causation question to the courts to determine as a matter of statutory construction. Because the statute is ambiguous, we have a number of plausible
2.Centrality of reporting requirements in Iowa civil rights law and linkage to substantive violations. Some may regard a retaliation claim as a second-class claim under the ICRA compared to status-based discrimination claims. Retaliation claims, however, are not second-class claims at all, but instead are claims that strike at the very heart of the enforcement regime of the ICRA. Under the ICRA, a claimant is required to file a timely claim with the Iowa Civil Rights Commission in order to present a claim. McElroy v. State,
As a result, keeping the channels of reporting potential civil rights claims free, open, and unfettered is crucial to vindicating the substantive policies of the ICRA. And, closing the channels of reporting through retaliation does not only affect the party but harms the system itself. See Richard Moberly, The Supreme Court’s Antiretaliation Principle, 61 Case W. Res. L. Rev. 375, 380 (2010) (citing law enforcement rationale). In addition to protecting the person claiming discrimination, coworkers participating in investigations need protection if the system is to function properly. A retaliation claim thus is not a satellite claim on the fringes of civil rights law. It is an essential claim, without which the ICRA could not fulfill its laudatory statutory purpose.
3. Purpose of retaliation provision as affecting causation. In considering whether the plaintiff has presented sufficient evidence to reach a jury on a retaliation claim, much debate has occurred on the level of causation—a motivating factor, a substantial factor, a but-for factor, etc. Aside from level of causation, however, there is another issue. Causation is not a free radical floating around the employment law universe untethered to any other legal principle. There is a relational question, namely, causal connection in relation to what, exactly?
And that is a key question. In the retaliation context, the question is whether the causation is judged by whether the alleged retaliatory conduct would likely deter a plaintiff from making a complaint contemplated by our civil rights laws. Or, is it judged by whether it “affects a term, condition, or privilege” of employment? This relational question is just as important as the calibration of the “level” of causation required in determining whether a plaintiff has made a sufficient showing to support a retaliation claim.
4. Difficulty of fact-finding in retaliation cases. Finally, we should recognize the evidentiary challenges facing a plaintiff in proving a retaliation claim. In retaliation cases, we are necessarily probing into difficult factual issues involving the motivation of the defendant. The evidence related to motivation is almost always in the hands of the defendant. In addition, the evidence in the modern work place is often indirect, although “smoking guns” are still occasionally uncovered.
B. Challenged Trial Court Instructions. With respect to her retaliation claim, the jury was instructed that Hask-enhoff need only prove that her report of sexual harassment “played a part” in HES’s decision to take adverse employment action against her to prevail on her retaliation claim. The jury was further instructed that to “play a part” the report need only have been “a factor” in HES’s employment action but “need not be the only factor.”
HES offered an instruction that Hask-enhoffs report of sexual harassment must have been “a significant factor motivating the Defendant’s decision to take materially adverse employment action against Plaintiff’ in order for the jury to find in favor of Haskenhoff on her retaliation claim.
C. Federal Caselaw on Causation Standard for Civil Rights Claims.
1. Causation standard for status-based discrimination. Title VII of the Civil Rights Act of 1964 provides that it “is an unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l)-(2) (emphasis added). Like prior state legislatures who used the term in them state civil rights acts, Congress provided no guidance as to the meaning of the ambiguous phrase “because of’ in its status-based discrimination provision. The meaning of the phrase “bеcause of’ has been a major point of controversy in federal civil rights law.
Early federal caselaw struggling with the “because of’ language came to mixed results. Many federal courts adopted a relaxed standard of proof close to a played-apart standard. See King v. N.H. Dep’t of Res. & Econ. Dev.,
In Price Waterhouse, the United States Supreme Court considered the meaning of the term “because of’ under the status-based classification provision of Title VII.
The Price Waterhouse Court, however, added an important caveat to its motivating-factor interpretation. In cases of mixed
In response to the same-decision aspect of Price Waterhouse and other Supreme Court civil rights decisions, Congress enacted the Civil Rights Act of 1991. Civil Rights Act of 1991, Pub. L. No. 102-166, 106 Stat. 1071 (codified at 42 U.S.C. § 2000e-2(m)). The purpose of the 1991 Act, according to Congress, was to provide “additional protections against unlawful discrimination in employment.” Id. The Civil Rights Act of 1991 added the following section to Title VII: “[A]n unlawful unemployment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). This section plainly endorsed the motivating-factor approach of Price Waterhouse.
Congress further amended the statute, however, to limit the same-decision affirmative defense established in Price Water-house. Congress limited the same-decision defense by providing that if the employer demonstrates that it
would have taken the same action in the absence of the impermissible motivating factor, the court ... may grant declaratory relief, injunctive relief ... and [limited] attorney’s fees and costs ... and ... shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
42 U.S.C. § 2000e-5(g)(2)(B). The impact of this amendment provided employees with greater protection than allowed under the Supreme Court’s decision in Pri.ce Wa-terhouse. The same-decision amendment was thus consistent with the underlying statutory purpose of the Civil Rights Act of 1991 to “provide additional protections” to employees suffering from impermissible discrimination.
Notably, however, the Civil Rights Act of 1991 did not amend the retaliation provision of Title VII, which also contains a because-of requirement of causation. What gloss should be put on the because-of language in the retaliation in light of the Price Waterhouse and the Civil Rights Act of 1991?
There were a number of possible approaches. Several courts concluded that because Congress did not specifically amend the separate retaliation section in the Civil Rights Act of 1991, the causation standard existing before the passage of the Act announced in Price Waterhouse provided the proper approach to causation in retaliation claims. See, e.g., Medlock v. Ortho Biotech, Inc.,
Other federal courts seem to have taken a different approach. Although short of an express holding, the Seventh Circuit in Veprinsky v. Fluor Daniel, Inc., cited the
The fighting issue in this split was whether the employer was entitled to a complete same-decision affirmative defense under Price Waterhouse for' retaliation claims, or whether the limitations of the same-decision defense contained in the 1991 Act were applicable. See generally Lawrence D. Rosenthal, A Lack of “Motivation” or Sound Legal Reasoning? Why Most Courts Are Not Applying Either Price Waterhouse’s or the 1991 Civil Rights Act’s Motivating-Fa'ctor Analysis to Title VII Retaliation Claims in a Post-Gross World (But Should), 64 Ala. L. Rev. 1067, 1070-73 (2013).
2. Causation standard for claims under the Federal ADEA at variance with generally applicable federal status-based causation test. In Gross, the United States Supreme Court considered the question of causation in an age discrimination case brought under the ADEA.
In Gross, the Court considered the .meaning of an ADEA provision which .stated,
It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges оf employment, because of such individual’s age..
Id. at 182,
The district court in Gross instructed the jury that liability could be based upon a determination that age was a motivating factor.
In a 5-4 decision, the United States Supreme Court held that Price Water-house-type burden shifting did not apply to claims brought under the ADEA. Id. The reasoning of the Gross Court, however, is pertinent to this case. The Supreme Court stressed that in statutory interpretation, the court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Id. at 174,
Obviously, the analysis in Gross of “because of’ in the ADEA was at odds with the similar analysis of the exact same term in Title VII in Price Waterhouse. There were now two competing approaches to “because of’ in the United States Supreme Court precedents. With respect to retaliation claims under Title VTI, the question after Gross was whether the motivating-factor approach to “because of’ in Price Waterhouse would apply to retaliation claims under Title VII, or would the new Gross but-for test for “because of’ supplant it.
3. Causation standard for federal retaliatory claims. In University of Texas Southwestern Medical Center v. Nassar, another bare 5-4 majority of the Supreme Court held that the proper causation test for a retaliation claim under Title VII is the but-for test. 570 U.S. -, -,
The majority also offered a pragmatic justification for the but-for test. Citing increases in the number of retaliation claims with the EEOC, the majority stated that it was of “central importance” to the judicial system to limit the number of claims. Id. at -,
Justice Ginsburg—joined by Justices Breyer, Kagan, and Sotomoyor—dissent-ed. Id. at -,
D. State Caselaw on Causation Standard for Retaliation Claims.
1. Causation test on generally applicable discrimination. The vast majority of state courts have generally adopted a version of Price Waterhouse for status-based discrimination claims. For instance, in Harvard v. Bushberg Brothers, Inc., the New Jersey court emphasized that discrimination. on the basis of sex is shown if sex played at least a part and was a causal factor in the failure of the complainant to be promoted.
2. Causation test regarding retaliation. State courts have adopted a wide range of tests for claims based on retaliatory conduct by an employer. They range from the least demanding a-factor test to the most demanding but-for test.
In VECO, Inc. v. Rosebrock, the Alaska Supreme Court considered the standard for causation in a retaliation case.
In Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, the Maryland court considered the proper causation test in a retaliatory discharge case.
Similarly, in Mele v. Hartford, the Connecticut Supreme Court considered the question of what a plaintiff must show in the context of a claim that the employer retaliated because of the plaintiffs assertion of his right to workers’ compensation benefits.
Some states have adopted a substantial-factor test. For instance, in Allison, the Washington Supreme Court adopted a substantial-factor test for retaliation claims under the Washington Human Rights Act.
In the above substantial-factor cases, it is not entirely clear how stringent the test is. In Lacasse v. Owen, the Oregon court suggests that the substantial-factor test is about the same as a. but-for test.
The Supreme Court of California considered the standard for retaliation claims in Harris v. Santa Monica,
Some state courts, however, have adopted the very stringent but-for test for retaliation claims. For example, in Ash-bury University v. Powell, the Kentucky Supreme Court summarized the majority argument in Nassar and accepted it under Kentucky law.
E. Iowa Caselaw on Causation Under ICRA.
1. Generally applicable causation standard for status-based discrimination. Our most recent exploration of causation in a claim of status-based discrimination was DeBoom v. Raining Rose, Inc.,
2. Causation in retaliation cases. In Hulme v. Barrett (Hulme II),
We returned to the causation question for retaliation claims in City of Hampton v. Iowa Civil Rights Commission,
In Hulme II and City of Hampton, we did not review the underlying statutory text of the ICRA. We did not engage in a reasoned discussion of the available interpretative. options. We did not consider the impact of Iowa Code section 216.18(1) requiring that we “broadly interpret the act to effectuate its purposes.” In fact, there is no analysis at all, only ambiguous and inconsistent declarations regarding a
F. Analysis. I begin the discussion of causation with consideration of the proper level of causation required to sustain a retaliation claim. Under the unified ICRA, the legislature has used the same term for causation for both status-based discrimination and retaliation claims, namely, the familiar “because” and “because of’ language. Iowa Code §§ 216.6(l)(a), .11(2). Two conclusions may be drawn from the use of the “because” and “because of’ causation language in both the status-based and the retaliation sections of the ICRA.
First, there is a strong textual argument that the level of causation for status-based claims and retaliation claims should be the same. We have frequently said that when the same term appears multiple times in the same statute, it should have the same meaning. State v. Paye,
Further, there is no policy reason to question the legislative judgment to use nearly identical causation language, thereby implying the same level of causation for retaliation claims as well as for status-based discrimination. As indicated above, retaliation claims are not second-class citizens, but are critical to effective enforcement of the ICRA. Policy reasons do not provide a basis for overriding the legislature’s textual choice.
Indeed, status-based discrimination and retaliation claims are two halves of the same walnut. The success of each depends upon the efficacy of the other. Nassar, 570 U.S. at -,
This approach represents a refinement, perhaps, of the standard for retaliation claims under the ICRA used in Hulme II and City of Hampton. In these cases, we applied a substantial-factor test for retaliation claims under the ICRA. City of Hampton,
By adopting a unified approach to status-based and retaliation causation, we would avoid juror confusion. We would avoid what Justice Ginsberg noted would be the result in Nassar, namely, that different causation standards would cause jurors to “puzzle over the rhyme or reason for the dual standards.” 570 U.S. at -,
In reaching this conclusion, I note the Nassar case has no bearing in the interpretation of the ICRA. The legislative history behind the status-classification and retaliation provisions of Title VII discussed in Nassar is fundamentally different than the legislative history behind the ICRA. Nassar relied extensively on the difference in congressional language between causation for status-based claims and causation for retaliation claims that arose after the enactment of the Civil Rights Act of 1991. 570 U.S. at -,
In light of the Civil Rights Act of 1991, the text of Title VII is now fundamentally different than the text of the ICRA with respect to the causation requirements in status-based and retaliation cases. Under Title VII, the motivating-factor test was explicitly incorporated into status-based discrimination, but the same change was not introduced into the retaliation section of Title VTI. Here, our caselaw has defined causation in the status-based discrimination clause as being a motivating factor and the same causation language is used in the retaliation section of the ICRA. The reasoning of Nassar is thus completely inapplicable here.
Aside from the markedly different legislative history, I would reject Nassar for other reasons. In particular, I am unpersuaded by the notion that higher standards for a retaliation claim are required in light of the number of complaints filed with the EEOC. At the outset, it is odd that a provision of substantive law should be affected by the number of administrative complaints made to an agency responsible under a statute to adjust such claims. If the number of claims decreases to a trickle, does that provide a basis for lessening the substantive standards? Can it be that a substantive legal standard expands and contracts based upon its use?
Further, it makes no sense to limit relief for very substantial and powerful claims, like those in Nassar, in order to also limit frivolous claims. Other tools are available. A. charge of discrimination may be filed under the ICRA only under penalty of perjury. A court may award attorneys’ fees as a sanction for claims brought in bad faith. Attorneys who file false claims are subject to ethical sanctions. See generally Sandra F. Sperino & Suja A. Thomas, Fakers and Floodgates, 10 Stan. J. C.R. & C.L. 223, 228 (2014). Further, there is no evidence that a heightened standard of causation would deter false claims. A person willing to file a false claim is not likely to be affected by a higher substantive causation standard.
Further, the mere existence of an increase in EEOC claims is not a powerful empirical tool. The executive branch, through an amicus brief filed by the United States Department of Justice, did not advance the argument and supported the lower motivating-factor standard for discrimination сlaims. See Brief for the United States as Amicus Curiae Supporting Respondent at 7, Nassar, 570 U.S. -,
The majority in Nassar believed it was in a better position to judge the administrative impact of substantive retaliation law on filings. See 570 U.S. at ——,
In the end, once the Nassar rhetoric is examined, the majority appears to have been motivated by “zeal to reduce the number of retaliation claims filed against employers.” 570 U.S. at -,
Based on the above reasoning, we conclude the reasoning of Nassar should be rejected under the ICRA. The “because of’ language in the status-based discrimination provision of the ICRA should be interpreted the same as the “because of’ language for retaliation claims.
We have not used identical language in our past cases dealing with causation in retaliation cases. In Hulme II,
There are two ways to address the apparent difference in the language of our cases. One is to simply state that the difference in language in the cases inconsequential and that the instruction in this case was sufficient on the law. That is the position taken by a commentator after review of the disparate federal caselaw of retaliation causation. Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 Geo L.J. 489, 507-10 (2006) (indicating there is no difference between “substantial factor” and “motivating factor” formulations but, as between the two, endorsing an “a factor,” “a role,” or “a motivating factor” formulation.). To the extent there is a difference, however, we would go with our more recent formulation in DeBoom,
V. Instructions Regarding “Materially Adverse Action” in Retaliation Cases.
A. Overview of Issue. Neither- the ICRA nor federal statute requires a plaintiff make a showing of a “materially adverse action” in order to support a retaliation claim. Nonetheless, the United States Supreme Court has grafted such a requirement onto Title VII and many courts have followed the Supreme Court’s lead. See Burlington Northern,
The parties in this case do not contest the basic proposition that a plaintiff in a retaliation case must show materially adverse action. The question is, instead, whether the trial court’s instructions accurately described adverse action necessary to support a retaliation claim under the ICRA.
B. Challenged Trial Court Instructions. The district court’s instruction defined “adverse actions” required to support a retaliation claim under the ICRA as follows:
[A]ny action which has material consequences to an employee. It is -anythingthat might dissuade a reasonable person from making or supporting an allegation of discrimination or harassment.
It includes' but is not limited to such employment actions as constructive discharge, reprimands or other threats of ■reprimands, a change in opportunities, false accusations or complaints, being investigated, being placed on performance improvement plan, being placed on probation or other actions which adversely affect or undermine the position of the employee. It also includes an employer seeking out negative feedback on an employee or condoning or encouraging other employees to complain about her. You should judge whether an action is sufficiently adverse from the point of view of a reasonable person in the plaintiffs positions.
(Emphases added.)
HES had offered the following instruction on adverse action:
[A]n “adverse employment action” is an action that detrimentally affects the terms, conditions, or privileges or employment. Changes in duties or working conditions that cause no materially significant disadvantage to the employee are not adverse employment actions. It includes, but is not limited to, employment actions such as termination of employment, failure to promote, or any action that would discourage a reasonable employee from making a complaint of harassment. Giving an employee a performance improvement plan or negative employment review is not “adverse employment action” unless they are later used as a basis to alter the employee’s terms or conditions of employment in a detrimental way. Both the action and its context must be examined.
C. Positions of the Parties. HES asserts the district court’s instruction was inaccurate because it includes actions which do not “materially significantly disadvantage” the employee. According to HES, no court has ever found the actions italicized in the instructions to amount to an adverse employment action.
Haskenhoff notes the first paragraph of the instruction provides that in order to be an adverse action, the action must have “material consequences” for the employee. Further, the jury found Haskenhoff was constructively discharged. Thus, the jury plainly found there was a legally sufficient adverse action by the employer. As a result, to the extent the instruction is flawed, Haskenhoff argues it is harmless.
D. Federal Caselaw and EEOC Authority on Scope of “Materially Adverse Action” in the Context of Retaliation Claims.
1. Introduction. With respect to retaliation, Title VII states that it is an unlawful employment practice for an employer “to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The phrase “to discriminate” is not defined by the statute. Congress left that question for the courts. Unlike the status-discrimination provision of Title VII, however, the retaliation provision does not contain the phrase “terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a). The presence of the phrase “terms, conditions, or privileges of employment” in the status-discrimination section of Title VII, when it is excluded in the retaliation provision,, gives rise to the inference that Congress has made a deliberate choice.
2. EEOC 1998 guidelines. The EEOC has confronted the question of what consti
The EEOC, however, rejected the “ultimate employment action” test adopted by the Eighth Circuit in Ledergerber v. Stangler,
The EEOC justified its approach based on text and policy. On text, the EEOC emphasized that while the status discrimination of Title VII states it is unlawful to discriminate against a person with respect to “terms, conditions, or privileges of employment,” the retaliation provision of Title VII has no such limitation. EEOC Manual 1998 Update] see 42 U.S.C. § 2000e-2.
On policy, the EEOC emphasized the primary purpose of the antiretaliation provisions is to “maintain[ junfettered access to the statute’s remedial mechanisms.” EEOC Manual 1998 Update-, see also Robinson v. Shell Oil Co.,
3. The Burlington Northern case. Prior to the seminal United States Supreme Court case of Burlington Northern, the federal courts splintered on the question of what a plaintiff must show to support a retaliation claim under Title VII.
In Ray v. Henderson, the Ninth Circuit outlined the differing approaches to retaliation claims in the various circuits.
In 2006, the Supreme Court entered the fray in Burlington Northern,
In Burlington Northern, the Supreme Court adopted a general, functional approach to the retaliation provision of Title VII. See id. at 68,
Thus, as the Burlington Northern Court repeatedly emphasized, “context matters” because an “act that would be immaterial in some situations is material in others.” Id. at 69,
4. Posi-Burlington Northern federal caselaw. Burlington Northern was something of a bombshell in the employment law world. As a general matter, there seemed to be little question that under Burlington Northern, more retaliation cases would survive summary judgment. Further, most of the post-Burlington Northern federal caselaw recognized that in determining whether a plaintiff has suffered disparate treatment, the “terms, conditions, and privileges of employment” test was not applicable in retaliation cases. The lower federal courts widely came to recognize that in retaliation cases, a lesser standard applies. See Powell v. Lockhart,
Burlington Northern emphasized the proper test for a retaliation case was “material adverse action” which “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Many post -Burlington Northern cases recognize that the totality of the circumstances must be considered when the “might well have deterred” standard is applied and bright-line declarations about whether certain actions were sufficient or insufficient were generally inappropriate under Burlington Northern. For example, following Burlington Northern, the Fifth Circuit in Thompson v. Waco, held that a change in job responsibilities did not automatically qualify as an adverse impact, but it could be adverse action depending upon a jury’s view of the facts.
A related concept is that certain actions individually might not be sufficient, but cumulatively such actions may arise to adverse action for purposes of supporting a retaliation claim. For example, in Sanford v. Main Street Baptist Church Manor, Inc,, the Sixth Circuit recognized that although some of the incidents might not rise to the level of adverse action, “the incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge.”
Burlington Northern recognized that petty slights, minor annoyances, and simple lack of good manners is not enough to establish material adverse action to support a retaliation- claim. Some federal courts have regarded this declaration as an invitation to take a laundry-list approach and declare, as a matter of law, that certain types of actions never amount to mar terial adverse actions. Other federal cases, however,, are more sensitive to context.
5. EEOC August 201-6 enforcement guidelines on .retaliation and related issues. In August 2016, the Equal Employ
Among other things, the EEOC emphasized that combinations of incidents could cumulatively amount to a material adverse action even if the individual incidents, considered alone, might not qualify. Id. The EEOC further emphasized that under Burlington Northern, potential retaliatory incidents must be considered in context and not in isolation. Id.
The EEOC addressed the question of what type of actions might rise to the level of a material adverse action. Id. II.B.2. According to the EEOC, “[t]he most obvious types of adverse actions are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge.” Id. But the EEOC went on to say,
Other types of adverse actions may include work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, transfers to less prestigious or desirable work or work locations, and any other types of adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity.
Id.
The EEOC concluded the determination of whether a plaintiff has made the necessary showing of material adverse action to support a retaliation claim was fact driven. Id. According to the EEOC,
A fact-driven analysis applies to determine if the challenged employer action(s) in question would be likely to deter participation or opposition. To the extent some lower courts applying Burlington Northern have found that some of the above-listed actions can never be significant enough to deter protected activity, the Commission concludes that such a categorical view is contrary to the context-specific analysis, broad reasoning, and specific examples endorsed by the Supreme Court.
Id.
The EEOC also addressed the question of whether a materially adverse action required harm to the employee. Id. The EEOC concluded it did not. Id. According to the EEOC, the degree of harm suffered by the individual “goes to the issue of damages, not liability.” Id. (quoting Hashimoto v. Dalton,
Finally, the EEOC distinguished between the standard required to prove a hostile environment claim and the standard to show retaliation. Id. As noted by the EEOC, “[t]he threshold for establishing retaliatory harassment is different than for discriminatory hostile environment.” Id. II.B.3.
According to the EEOC, harassment sufficient to support a retaliation claim does not need to be severe or pervasive enough to alter the terms and conditions of employment. Id.
E. State Caselaw on Retaliation Requirements. Neither party cited any state caselaw on the question of what constituted adverse action sufficient to support a retaliation claim. We have been able to discern no clear pattern in the state case-law.
Some state cases recognize the impact of Burlington Northern. For instance, in Donovan v. Broward County Board of
Another case that employs Burlington Northern contextualization is Ellis v. Jungle Jim’s Market, Inc.,
Similarly, in Hoffelt v. Illinois Department of Human Rights, a plaintiff claiming retaliation offered evidence that she was called names and treated in a demeaning manner, was assigned to a position known as “a punishment post,” and had her requests for compensatory leave denied under circumstances in which they were granted in the past.
Another state court has emphasized the need to broadly construe the retaliation provision in its civil rights legislation. In Albunio v. City of New York, the court emphasized the retaliation provision would be construed “broadly in favor of discrimination plaintiffs, to the extent.such a construction is possible.”
F. Iowa Caselaw on “Adverse Employment Action.” We have considered the meaning of “adverse employment action”
Yet, we have indicated that “[cjhanges in duties or working conditions that cause no materially significant disadvantages to the employee are not adverse employment actions.” Id, at 862. Of course, the Channon formulation that an “adverse employment action” must be a “materially significant disadvantage,” id,, is somewhat circular and not very helpful. And, it is inconsistent with the Burlington Northern standard. In Channon, however, we concluded when the plaintiff offered evidence tending to show she faced ridicule, a constructive demotion, and open hostility about her lawsuit, the record was sufficient to support a finding of adverse employment action. Id. at 866.
The next pre-Burlington Northern Iowa retaliation case is Estate of Harris,
In our analysis in Estate of Harris, we favorably cited a federal district court case for the proposition that moving an employee to an isolated' corner might be sufficient to support.a retaliation claim. Id. at 678; see Harris v. Richards Mfg. Co.,
Our last retaliatory discharge case is the pr e-Burlington Northern case of Boyle,
On balance, we should recognize that our pr e-Burlington Northern adverse-employment-action cases did not have the benefit of Burlington Northern ⅛ key insight that the test for material adverse action in the context of' retaliation claim was whether a reasonable person would likely be deterred from utilizing complaint procedures, and not the familiar terms, conditions, and privileges of employment test that applies to disparate treatment cases. See
Although our cases reflect superseded federal law, they still generally recognized the subtlety of the workplace and the need to consider factual issues related to employment claims in light of the totality of facts and circumstances. See Channon,
G. Discussion. At the outset, we are obliged to construe the ICRA broadly to effectuate its purposes. Iowa Code § 216.18(1). As has already been noted, maintaining clear channels for pursuing complaints is critical to the regime established by the ICRA. Cf. Robinson,
The parties both accept the notion that we must determine what is a material adverse action for purposes of a retaliation claim under the ICRA. I have little hesitance in embracing the approach of Burlington Northern, the EEOC, and the better reasoned caselaw that the test is whether a reasonable employer might be deterred from filing a complaint by the conduct in question. The purpose of a retaliation claim is to keep the access to the channels of civil rights law clear and open. The test for retaliation should be tied to its fundamental purpose.
The test for material adverse action for purposes of retaliation is thus distinct from the test for an adverse employment action for purposes of a disparate-treatment claim. As stated by the EEOC, the question of tangible harm goes to damages, not to liability, for retaliatory conduct. To the extent our prior cases suggest otherwise, they should be overruled. I would thus specifically reject the approach of the' mostly pre-Burlington Northern Eighth Circuit cases that indicate a material adverse action must include tangible employment action or must affect terms and conditions of employment. See Scott Rosenberg & Jeffrey Lipman, Developing a Consistent Standard for Evaluating a Retaliation Case Under Federal and State Civil Rights Statutes and State Common Law Claims: An Iowa Model for the Nation, 53 Drake L. Rev. 359, 384-85 (2005) (urging adoption of Ninth Circuit standard in Ray). As stated by the EEOC, in addition to the most obvious adverse actions such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge,
[ojther types of adverse action may include work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, transfers to less prestigious or desirable work or work locations, and any other types of adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity.
EEOC Enforcement Guidance II B.2.
I would also agree with Burlington Northern, the EEOC, and the better reasoned caselaw that the determination of whether a plaintiff has introduced evidence sufficient to establish a material adverse action is fact specific and will, in most cases, generate a jury question. Of course, petty incidents in isolation do not suffice to show a materially adverse impact, but determining what is so petty that it would not deter a reasonable person from utilizing complaint procedures is usually best decided by a diverse jury with a mix of real world experience rather than by the court. Cf. Bell v. Johnson,
We should embrace the notion that while each individual act might not provide sufficient evidence of a material adverse action, a combination of relatively petty slights poses a different issue. Ordinarily, the cumulative weight of multiple or repetitive actions will generate a fact question for the jury to determine. Sanford,
Finally, I would reject the laundry-list notion that various employment actions such as reprimands or negative job evaluations, transfers without loss of pay, or “snubbing” may be categorically regarded as never arising to the level of material adverse action. Take the negative job evaluation. In some, setting, a negative job evaluation might not matter at all. A negative job evaluation for an employee approaching retirement might produce a cynical grunt, but not much more. On the other hand, a negative job evaluation for an economically struggling head of household who is anxious to climb the work ladder to provide a better lifе for his or her family might reasonably feel quite different.
In general, the first paragraph of the instruction accurately captures the test of material adverse action in the retaliation context. It emphasizes that material adverse action is action that is likely to deter a reasonable person from filing a complaint. That is the legal standard I would adopt under the ICRA.
The second paragraph of the instruction, however, is problematic. It offers the unqualified statement that material adverse action includes a list of actions. A reasonable jury could interpret the instruction to mean that if one of the listed actions is present, material adverse action is necessarily present as a matter of law, end of story. But, as stated above, the test is whether a reasonable person in the shoes of the plaintiff might well be deterred from pursuing a civil rights claim. In con
Ordinarily, this instructional error would be prejudicial and require vacation of the verdict and remand for a new trial. Hask-enhoff argues, however, that any error is cured by the jury’s verdict finding that Haskenhoff was constructively discharged by HES. Plainly, a constructive discharge amounts to a material adverse action. 1 Andrew J. Ruzicho et al., Employment Practices Manual § 6B:7, Westlaw (database updated Mar. 2017) (“An actual or constructive discharge remains the clearest example of an adverse action.”).
But, as pointed out in Chief Justice Cady’s concurrence, there is a problem with Haskenhoffs theory that the jury’s verdict on constructive discharge remedies any potential flaw in the instructions on retaliation. On questions number one and two, the jury answered in the affirmative that Haskenhoff proved her case of sexual harassment and retaliation respectively. On question number three, the jury answered in the affirmative the question of whether Haskenhoff was subject to constructive discharge. In response to question number four, the jury returned a general damage verdict of $100,000 for lost wages and benefits, $300,000 for emotional distress, and $1,000,000 for the present value of emotional distress.
While the jury did find a constructive discharge, it is not clear from the verdict form whether the jury’s constructive-discharge verdict was based upon the plaintiffs claim of sexual harassment found in question one or whether it was based on the plaintiffs claim of retaliation in question two. In order to cure the defect in the retaliation instruction, we must be able to conclude the jury found a causal relationship-protected activity giving rise to the retaliation claim and the constructive discharge.
From the jury verdict form, however, it is possible the jury believed sexual harassment in question one, and not retaliation in question two, was causally related to the constructive discharge. If so, the jury could have awarded part of the general award damages in this case based upon the faulty retaliation instruction. See Farmers’ Nat’l Bank of Oskaloosa v. Stanton,
VI. Instructions Regarding Constructive Discharge.
A. Overview of Constructive Discharge. The application of the constructive discharge doctrine to civil rights claims has been controversial. See Mark S. Kende, Deconstructing Constructive Discharge: The Misapplication of Constructive Discharge Standards in Employment Discrimination Remedies, 71 Notre Dame L. Rev. 39, 41-45 (1995) [hereinafter Kende] (“[B]y forcing discrimination victims to endure continuing discrimination, the constructive discharge approach [of a majority of federal courts] contravenes Title VH’s purposes.”).
In this case, however, the parties do not contest whether the doctrine of construe-
B. Challenged Instructions on Constructive Discharge. The jury was instructed on constructive discharge as follows: “The employer need not really want the employee to quit.... ■ The employee must show that she was subjected to sexual harassment or retaliation which made her believe there was no chance for fair treatment at Homeland.”
HES had sought to instruct the jury that Haskenhoff had to show “the Defendant acted with the intent of forcing the Plaintiff to quit, or the Plaintiffs resignation was a reasonably foreseeable result of the Defendant’s actions.” Additionally, HES sought to instruct the jury as follows:
An employee cannot “quit and sue” and then claim to have been constructively discharged. Rather, the conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. In order to amount to a constructive discharge, adverse working conditions must be unusually “aggravated” or amount to a “continuous pattern” before the situation will be deemed intolerable. Generally speaking, a single, trivial or isolate act is insufficient to support a constructive discharge claim. Finally, conditions cannot be considered intolerable unless the employer has been given a reasonable chance to resolve the problem.
C. Positions of the Parties.
1. HES. HES asserts the constructive discharge instruction was erroneous because of the assertion that the employer “need not really want the employee to quit.” Further, HES claims the instruction improperly injected the subjective views of Haskenkoff into the issue. Further, HES, citing Van Meter Industrial v. Mason City Human Rights Commission,
2. Haskenhoff. With respect to the instruction regarding the fact that “the employer need not really want the employee to quit,” Haskenhoff argues that this language is supported by Van Meter,
With respect to the question of whether the instruction was erroneous because of reference to her subjective feelings, Hask-enhoff notes the instructions, taken as a whole, repeatedly referred to the objective standard for constructive discharge. According to Haskenhoff, Instruction Nos. 33 and 34 dealing with constructive discharge contained no less than seven references to the reasonableness standard.
Haskenhoff also asserts that HES’s proposed instruction that “conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem” was presented in the instructions. Haskenhoff notes the in
D. Federal Caselaw on Constructive Discharge.
1. Introduction. When applying the law of constructive discharge, it appears almost universally accepted that the test of whether there is a constructive discharge is whether working conditions are sufficiently intolerable that a reasonable person in the position of the employee would have felt compelled to resign. See 2 Christopher Bello, Litigating Wrongful Discharge Claims § 7.62 n.3, at 7-260 (2013— 2014 Cumulative Supp.) (collecting cases). The reasonable-person test is generally an objective test* but it is qualified by the notion that the reasonable person must be one “in the position of the employee.” Id.
2. Intent to create hostile environment. The federal cases under Title VII are split on the question of whether a plaintiff in a constructive discharge case must prove employer intent. The majority view is that constructive discharge occurs even if the employer did not intend to create the intolerable working conditions, See, e.g., Ramsey v. City & Cty. of Denver,
3.Reasonable chance to work out the problem. The Eighth .Circuit has stated that an employee who quits without giving his or her employer a reasonable chance to work out a problem is not constructively discharged. Trierweiler v. Wells Fargo Bank,
In Suders v. Easton, the Third Circuit held it was relevant whether the employee explored alternative avenues to resolve the alleged discrimination before resigning, but that “a failure to do so will not defeat a claim of constructive discharge.”
One federal court noted the potential tightrope that a plaintiff must show in proving a constructive discharge claim. In Bristoio v. Daily Press, Inc., the Fourth Circuit noted that while an employee must show his working conditions are intolerable, his “desire for reinstatement to his position belies the claim that intolerable conditions underlay his resignation.”
E. State Caselaw on Constructive Discharge. A number of state courts have expressly considered whether an employer must have a reasonable chance to remedy the situation before a finder of fact may find that an employee was constructively discharged. In Pollock, the court held there was no legal requirement that an employee must complain of harassment and wait and see what happens in all circumstances.
A final case of interest is Marten Transportation, Ltd. v. Department of Industry, Labor, & Human Relations,
F. Iowa Caselaw on Constructive Discharge. In the pre-Suders case of Van Meter Industrial, we considered constructive discharge under a local human rights ordinance.
G. Discussion.
1.No requirement of wanting employee to quit. As seen above, the caselaw is divided on the question of whether an employer must desire the employee to quit before a plaintiff may prove constructive discharge. I agree with the majority approach, however, that there is no such subjective legal requirement. I do so for several reasons. The focus on constructive discharge should be on the perceptions of a reasonable employee in light of the remedial purposes of the ICRA. I do not think subjective protestations on the part of the employer should be a defense if the objective evidence demonstrates working conditions would be considered intolerable by a reasonable person in the shoes of the plaintiff. See Ramsey,
2. Objective test. In Van Meter,
Therefore, the suggestion in the instruction that constructive discharge may be shown if the employee subjectively believes conditions are intolerable is not in accord with the law as agreed upon by the parties in this case. Although the instruction was imperfect, taken as a whole, any error was harmless on this point in light of the repeated reference to reasonability throughout the instructions. On retrial, however, the district court might want to eliminate any confusion by consistently referencing the objective nature of the inquiry.
3. Reasonable chance to resolve the problem: Can Faragher-Ellerth jump the track (again)? The last issue is the district court’s refusal to instruct that the “conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem.” At its core, this is another effort to transplant the thrust of the Faragher-Ellerth affirmative defense outside the context of vicarious liability. See Sara Kagay, Applying the Ellerth Defense to Cmistructive Discharge: An Affirmative Answer, 85 Iowa L. Rev. 1035, 1050-51 (2000). This approach appears to have been embraced by the Eighth and Eleventh Circuits, but not in the Seventh Circuit. Trierweiler,
Based on our review of the possible approaches, I think the better view is not to impose a legal requirement that an employee must give the employer a reasonable period of time to remedy the problem in all constructive discharge cases. As pointed out in the caselaw and in the commentary, this requirement is a Catch-22 in that the plaintiff must prove conditions are so intolerable that any reasonable person would quit, while remaining patiently in the workplace to see if an employer can change its behavior and come up with a remedy. See Gormley v. Coca-Cola Enters.,
Empirical sources confirm that very few victims of sexual harassment pursue complaints through internal grievance procedures. Although now somewhat dated, scholarly literature suggests that workers who suffer harassment who utilize internal channels range from 2.5%-12%. See Cham-allas,
Finally, forcing persons into internal processes tends to privatize civil rights enforcement in an environment where sexual harassment may be considered to be a personal problem for individual women rather than a systemic issue. Id. Internal complaint procedures are thus often unappealing because of a lack of empathy from decision-makers and the perceived risks of retaliation. The end result may be for victims to simply suffer in silence and then quit when conditions get bad. Id. at 379.
I would thus conclude there is no legal requirement to prevail on a hostile environment claim that an employer had an opportunity to resolve the problem. Pollock,
VIL Conclusion.
For the above reasons, I would generally conclude the approach of the district court comported with Iowa law except with respect to the instruction regarding materially adverse conditions required to support retaliation. For this reason, I too would reverse the judgment of the district court and remand for a new trial.
. See, e.g., Arthur E. Bonfield, The Substance of American Fair Employment Practices Legislation I: Employers, 61 Nw. U. L. Rev. 907, 909-10 & n.6 (1967); Elmer A. Carter, Practical Considerations of Anti-Discrimination Legislation—Experience Under the New York Law Against Discrimination, 40 Cornell L.Q. 40, 40 (1954); Richard B. Dyson & Elizabeth D. Dyson, Commission Enforcement of State Laws Against Discrimination: A Comparative Analysis of the Kansas Act, 14 U. Kan. L. Rev. 29, 29-31 (1965); Herbert Hill, Twenty Years of State Fair Employment Practice Commissions: A Critical Analysis with Recommendations, 14 Buff. L. Rev. 22, 22 (1964); Robert G. Meiners, Fair Employment Practices Legislation, 62 Dick. L. Rev. 31, 31 & n.1, 33 (1957); Arnold H. Sutin, The Experience of State Fair Employment Commissions: A Comparative Study, 18 Vand. L. Rev. 965, 965 & n.1 (1965).f
. The because-of causation language in Title VII's discrimination and retaliation provisions is also found in earlier state antidiscrim-ination statutes. See, e.g., Wash. Rev. Code § 49.60.030 (1957) ("The right to be free from discrimination because of race, creed, color, or national origin is recognized as and declared to be a civil right.”); Int’l Bhd. of Elec. Workers Local 35 v. Comm’n on Civil Rights,
. The same historical mistake is often made with respect to the Iowa Constitution, which some claim is modeled after the United States Constitution. In fact, the United States Constitution, and every provision of its Bill of Rights, was derived from provisions of state constitutions that existed before 1789, especially the Virginia Declaration of Rights and the Massachusetts Constitution. The documents published in Paris by Benjamin Franklin, hailed to be the first written constitutions, were state constitutions, not the later and largely derivative United States Constitution. See Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution, 47 Suffolk U. L. Rev. 759, 802 & n.222 (2014).
. It is sometimes asserted that we should follow federal precedent under Title VII to foster uniformity. When Congress enacted Title VII in 1964, approximately one-half of the states had some kind of antidiscrimination statute. See Susan Elizabeth Powley, Exploring a Second Level of Parity: Suggestions for Developing an Analytical Framework for Forum Selection in Employment Discrimination Litigation, 44 Vand. L. Rev. 641, 667 & n.184 (1991). Congress expressly considered the question of requiring uniformity when it declared that Title VII does not preempt state law. See 42 U.S.C. § 2000h-4; Alexander v, Gardner-Denver Co.,
.No one would suggest, for instance, that if Iowa were to adopt a statute modeled after the statute of another state, we would be compelled to follow the interpretations of the supreme court of the other state in interpretation of Iowa law, See Crosby v. Alton Ochsner Med. Found.,
. For an interesting discussion, see Tyler S. Smith, Note, A Mid-Life Crisis in the Interpretation of the Iowa Civil Rights Act of 1965: How Should State Courts Interpret Original State Antidiscrimination Statutes After Federal Counterpart Statutes Are Amended?, 64 Drake L. Rev. 1117, 1141-49 (2016).
. Such a reaction has been referred to as a "‘Pavlovian response” to federal opinions. Stone v. St. Joseph's Hosp. of Parkersburg,
. Many state civil rights cases have declined to follow federal authorities. See, e.g., Smith v. Anchorage Sch. Dist.,
. See Pippen,
.This dictum is correct as applied to a derivative claim based upon vicarious liability, but it does not apply to a claim based upon direct negligence. When a supervisor participates in the harassment, the plaintiff has a choice.- The plaintiff may proceed directly against the employer under a negligence theory and bear the burden of showing that the employer knew or should have known of the harassment and failed to stop it, or she may proceed under a vicarious liability theory. If the plaintiff proceeds under a vicarious liability theory, then the employer is entitled to the Faragher-Ellerth defense.
. See generally Alex B. Long, “If the Train Should Jump the Track ...Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 Ga. L. Rev. 469 (2006).
. Although the parties have assumed in our cases that the Faragher-Ellerth defense is available under the ICRA, we have not adjudicated the issue in a contested case. A number of state courts have declined to adopt the Faragher-Ellerth defense under their state civil rights acts, See, e.g., Myrick, 73 F.Supp.2d
. Womack appears to have been subsequently modified by later cases. See, e.g., Tuttle v. Henry J. Kaiser Co.,
. See also U.S. Equal Emp’t Opportunity Comm’n, Theories of Discrimination: Intentional and Unintentional Employment Discrimination A-19 (May 1995) (“The retaliation provisions [of the EPA, ADA, and ADEA] provide exceptionally broad protection to individuals who file charges or otherwise aid the EEOC’s enforcement function. It is the EEOC’s policy to expedite the investigation of retaliation charges and seek injunctive relief, since it has the unique interest of preserving the integrity of its investigative process and preventing a chilling effect on the willingness of individuals to protest discriminatory conduct.”).
. Burlington Northern makes it clear that the adverse action might not be employment related and thus the plaintiff in a retaliation case must show "adverse action” rather than "adverse employment action.” See
. We also cited Farmland Foods for the proposition that materially adverse employment action embraces a wide variety of facts.
. In one study, ninety-five laws students at the University of Cincinnati were surveyed about what kind of job actions would dissuade them from filing a civil rights complaint. See Sperino, Retaliation,
. depending on the context, “snubbing” could easily be regarded by a factfinder as something that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. See B. Glenn George, Revenge, 83 Tul. L. Rev. 439, 443 (2008).